Cunningham v. Alabaster, City of, Alabama et al

Filing 39

MEMORANDUM OPINION AND ORDER: As further set out in order, 37 and 38 , Motions for Extension of Time, are DENIED; defendants' motions to dismiss ( 18 and 20 ) are GRANTED; and Plaintiff's Amended Motion for Preliminary Injunction, 11 , is MOOT. Plaintiff's claims arising under federal law are frivolous under 28 U.S.C. § 1915 and, accordingly, DISMISSED with prejudice. Additionally, the court lacks jurisdiction over Plaintiff's claims arising under Alabama law and those claims are DISMISSED without prejudice. Signed by Judge Abdul K Kallon on 02/27/13. (CVA)

FILED
2013 Feb-27 PM 02:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LEE FRANK CUNNINGHAM,
JR,
Plaintiff,
v.
THE CITY OF ALABASTER,
and CURTIS RIGNEY,
Defendants.

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Civil Action Number
2:12-cv-03992-AKK

MEMORANDUM OPINION AND ORDER
Plaintiff Lee Frank Cunningham, Jr. (“Cunningham”) filed this action
against the City of Alabaster, Alabama (“Alabaster”) and Police Chief Curtis
Rigney (“Chief Rigney”), in his individual capacity, for alleged violations of the
First, Second, and Fourteenth Amendments arising from enforcement of
Alabaster’s gun carry ordinance. See doc. 31. At this time, Cunningham renews
his request for a preliminary injunction preventing enforcement of the ordinance,
while Defendants seek dismissal of the action due to immunity and lack of
jurisdiction. Docs. 11, 18-19. Since Cunningham failed to timely respond to
Defendants’ motions, the motions are fully briefed and ripe for review.1 Docs. 19,
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Additionally, Cunningham’s motions for a second extension of time in which to file his
response to Defendants’ motion to dismiss, docs. 37-38, are DENIED as untimely.

21. In light of the court’s finding that Defendants’ motion is due to be
GRANTED, and by extension that Cunningham cannot demonstrate that he is
substantially likely to succeed in his underlying action, the court sees no reason to
revisit its earlier ruling denying Cunningham’s motion for a preliminary
injunction. See doc. 10; Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223,
1225-26 (11th Cir. 2005). Accordingly, Cunningham’s amended motion for a
preliminary injunction is MOOT.
I. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a
short and plain statement of the claim showing that the pleader is entitled to
relief.” “[T]he pleading standard Rule 8 announces does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action” are
insufficient. Iqbal, 129 S. Ct. at 1949 (citations and internal quotation marks
omitted). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of
‘further factual enhancement.’” Id., at 1949 (citing Bell Atl. Corp., 550 U.S. at
557).
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Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to state a claim upon which relief can be granted. “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Iqbal, 129 S. Ct. at
1949 (citations and internal quotation marks omitted). A complaint states a
facially plausible claim for relief “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. (citation omitted). The complaint must establish
“more than a sheer possibility that a defendant has acted unlawfully.” Id.; see also
Bell Atl. Corp., 550 U.S. at 555 (“Factual allegations must be enough to raise a
right to relief above the speculative level.”). Ultimately, this inquiry is a “contextspecific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 129 S. Ct. at 1950.
II. PROCEDURAL AND FACTUAL BACKGROUND2
In February 2012, Cunningham obtained a permit from Shelby County
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“When considering a motion to dismiss, all facts set forth in the plaintiff’s complaint
‘are to be accepted as true and the court limits its consideration to the pleadings and exhibits
attached thereto.’” Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)
(quoting GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993)). However, legal
conclusions unsupported by factual allegations are not entitled to that assumption of truth. See
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950 (2009).
Additionally, Cunningham amended his complaint after Defendants moved to dismiss.
Doc. 31. Accordingly, the court takes the facts from the amended complaint.
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Sheriff Chris Curry, pursuant to Alabama Code § 13A-11-75, to carry a concealed
handgun. Doc. 31 at ¶ 29. Cunningham subsequently began researching the scope
of his new permit. Id. at ¶ 30. During his research, Cunningham discovered that
Alabaster, where he resides, promulgated an ordinance restricting the unconcealed
carry of a firearm within the city. Id. at ¶ 31. Based on Cunningham’s belief that
this ordinance directly contradicts Alabama state law governing unconcealed gun
carry, even though Cunningham does not have a permit to carry an unconcealed
gun, Cunningham sought clarification from former Police Chief Stanley Oliver
and current Chief Curtis Rigney. Id. at ¶ 32. Both officers informed Cunningham
that if he carried his pistol openly, they would arrest and prosecute him for
violating the Alabaster ordinance. Id. Following this exchange, Cunningham
spoke with the city Clerk, several city councilmen, and Chief Oliver in an attempt
to have the Alabaster ordinance repealed. Id. at ¶¶ 34-40. Eventually,
Councilwoman Sophie Martin informed Cunningham that she turned the matter
over to the city attorney Jeff Brumlow. Id. at ¶ 41. When Cunningham contacted
Brumlow, Brumlow allegedly suggested that Cunningham “violate the ordinance,
get arrested, and ‘work something out’ at trial.” Id. at ¶ 42.
Cunningham continued to contact other persons to obtain information
regarding the validity of Alabaster’s ordinance. Purportedly, Officer Tim Glasgow
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informed Cunningham that “it was not a crime to openly carry a pistol, except in
places like government buildings[,]” whereas Officer Davis stated that “‘open
carry’ was legal under Alabama law but it was illegal in the city of Alabaster due
to the city [o]rdinance[.]” Id. at ¶¶43-44. In light of this conflicting information,
Cunningham again sought advice regarding the ordinance from Chief Rigney, who
informed Cunningham that he would be “arrested ‘on the spot’” if he carried a
pistol openly in the city. Id. at ¶ 46.
Subsequently, Police Sergeant Grant Humphries from the “investigations
division” contacted Cunningham’s mother with questions about Cunningham and
asked that Cunningham contact him. Id. at ¶ 48. Cunningham contacted Sgt.
Humphries as instructed and relayed to Sgt. Humphries his concerns about the
ordinance and plans to file suit to challenge its validity. Id. at ¶ 50. This
conversation allegedly led the Alabaster police officers to begin harassing
Cunningham. Id. at ¶ 51. Cunningham’s mother then contacted Chief Rigney,
who stated that “he would have all of his officers treat [Cunningham] as ‘armed
and dangerous’ during any contact” and that he was working to have
Cunningham’s gun permit revoked by the Shelby County Sheriff’s Office. Id. at
¶¶ 52-53. Soon after, the Shelby County Sheriff’s Office revoked Cunningham’s
permit allegedly based on the request by the Alabaster Police Department. Id. at ¶
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55. Moreover, based on the allegedly false information provided by the Alabaster
officials that Cunningham had confronted the officers and threatened to challenge
an officer, and since the issuance of gun permits is discretionary, the Sheriff’s
Office informed Cunningham that “it would likely be years before [he] was issued
another permit.” Id. at ¶ 57, 62. Also, Chief Rigney allegedly posted
Cunningham’s picture in the police department “with an inscription describing
[Cunningham] as a threat to law enforcement or the community and posted it in a
place where it could be viewed by members of the general public” and also
flagged Cunningham’s driver’s license in the computer system as “armed and
dangerous.” Id. at ¶¶ 63-64.
III. ANALYSIS
Cunningham alleges claims under 42 U.S.C. § 1983 for racial
discrimination, Fourteenth Amendment due process violations, and First
Amendment infringement, and also seeks a declaratory judgment that the
Alabaster ordinance is preempted by Alabama law and the Second Amendment
and a permanent injunction to prevent the ordinance’s enforcement. See doc. 1.
However, Defendants contend that these claims are due to be dismissed for failure
to meet the pleading standards, lack of subject matter jurisdiction, and qualified
immunity. See docs. 18-21. The court agrees for the reasons stated below.
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A.

Dismissing In Forma Pauperis Actions
The in forma pauperis statute allows an indigent litigant to commence an

action in federal court without prepayment of fees or costs. 28 U.S.C. § 1915.
However, because these fees and costs “are assumed by the public,” the statute
authorizes federal courts to dismiss a litigant’s action “if satisfied that the action is
frivolous or malicious.” Neitzke v. Williams, 490 U.S. 319, 324 (1989); see also
28 U.S.C. § 1915. The court may, in its discretion, consider an in forma pauperis
litigant’s complaint frivolous if “it lacks an arguable basis either in law or in fact,”
Neitzke, 490 U.S. at 325, or fails to state a claim under Fed. R. Civ. P. 12(b)(6),
see Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002).
1.

Equal Protection Under the Fourteenth Amendment

In Count I of his complaint, Cunningham alleges that he was not afforded
equal protection of the laws when Defendants threatened to arrest and prosecute
him if he violated the gun ordinance and that similarly situated Caucasian persons
were not subject to such treatment.3 Doc. 1 at 19-20. Law enforcement officials
are tasked with enforcing the laws, including ordinances that citizens like

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Cunningham captions Count I as “Racial Discrimination” under § 1983, but alleges that
he was denied equal protection. Accordingly, the court presumes that Count I is a Fourteenth
Amendment Equal Protection claim.
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Cunningham allege are facially invalid, and arresting those suspected of violating
these laws. See Haney v. City of Cumming, 69 F.3d 1098, 1102 (11th Cir.1995).
Informing Cunningham that he could and would be arrested and prosecuted for
violating the gun ordinance is not wrongful conduct since those activities are
within the duties and responsibilities of the Alabaster officers. Moreover,
Cunningham failed to point to any alleged “similarly situated” Caucasian citizen
of Alabaster whom the officers failed to inform that the ordinance would be
enforced or to allege any facts suggesting that the Alabaster police told
Cunningham they would enforce the ordinance against him because of his race.
Accordingly, the court finds that Count I fails to state a claim and is frivolous
under § 1915. Since Cunningham’s amended complaint failed to redress this
deficiency, see doc. 31 at 15-16, Count I is DISMISSED.
2.

Due Process Under the Fourteenth Amendment

In Count II, Cunningham alleges that Defendants deprived him of liberty
and property without due process of law in violation of the Fourteenth
Amendment by causing the revocation of his Shelby County gun permit. Doc. 1 at
20-21. This claim fails for several reasons. First, Cunningham failed to properly
allege a liberty interest in a gun permit. “[L]iberty interests protected by the
fourteenth amendment may arise either from the Constitution itself, or from state
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law.” Barfield v. Brierton, 883 F.2d 923, 935, citing Hewitt v. Helms, 459 U.S.
460, 466 (1983). The Supreme Court has held that the Second Amendment’s right
to bear arms is not “a right to keep and carry any weapon whatsoever in any
manner whatsoever and for whatever purpose.” District of Columbia v. Heller,
554 U.S. 570, 625 (2008). It is instead well settled that, short of a complete ban,
states may regulate firearms. McDonald v.City of Chicago, Ill., 130 S.Ct. 3020,
3047 (2010). Therefore, the liberty interest Cunningham asserts here must be
state-created. Id. “To assert a state-created entitlement to a liberty interest, a party
must show that the state placed substantive limitations on official discretion.”
Barfield, 883 F.2d at 935 (quoting Olim v. Wakinekona, 461 U.S. 238, 249
(1983)). Cunningham failed to make this showing. Instead, in both the original
and amended complaint, Cunningham alleges that the issuance of gun permits in
Shelby County is entirely discretionary with no substantive limitations. See doc. 1
at ¶ 56; doc. 31 at ¶ 57. Accordingly, Cunningham’s liberty-based Due Process
claim lacks a colorable basis in law or in fact and is DISMISSED.
Second, Cunningham failed to properly allege a property interest in the
state-issued gun permit. “The hallmark of property, . . . is an individual
entitlement grounded in state law, which cannot be removed except ‘for cause.’”
Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982). However, as
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discussed above, Cunningham failed to allege that he is entitled to a gun carry
permit based on Alabama law or that such a permit, once issued, can only be
revoked for cause. See docs. 1, 31. Cunningham alleges instead that the issuance
and revocation of such permits are entirely discretionary. See id. In other words,
Cunningham failed to properly plead the requisite property interest. Alternatively,
even if he did properly plead his claim, it still fails because the revocation letter
incorporated into Cunningham’s amended complaint by attachment and reference
shows that the Shelby County Sheriff’s Office revoked his license “for cause.”
See doc. 31-1 at 2-3. Accordingly, Cunningham’s property-based Due Process
claim likewise lacks an arguable basis in law or in fact and is DISMISSED.
3.

Second Amendment Preemption

In Count III, Cunningham alleges that Alabaster’s gun carry ordinance is
preempted by the Second Amendment. Doc.1 at 27; doc. 31 at 22. However, as
discussed above, the Supreme Court has held that gun regulation by the states or
their cities is proper under the Constitution. See Section A(2), supra. Therefore,
the federal preemption claim fails as a matter of law and is DISMISSED.
4.

Right to Petition Under the First Amendment

Finally, in Count IV, Cunningham alleges that Defendants infringed upon
his First Amendment right to petition the government for redress of grievances by
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“threaten[ing] him with arrest, prosecution and incarceration, intimidat[ing] him
when he left home and traveling through the City . . ., stigmatized him by posting
his picture in a public fashion and labeled him a threat or danger to the police
department or the community at large, [and] compared him to the mass murderer
who had committed the well-known atrocities in Aurora, Colorado.” Doc. 1 at 31;
doc. 31 at 25-26. However, Cunningham also alleged that the Defendants
“threatened him with arrest, prosecution and incarceration” only in answering his
questions regarding the enforceability of the gun carry ordinance and after he
intimated that he desired to carry a gun in violation of this ordinance. See e.g.,
doc. 31 at ¶ 32. Nothing in the First Amendment precludes officers from telling
citizens that they face arrest if they violate a law. Therefore, as related to this
conduct, Cunningham’s First Amendment claim fails.
Further, Cunningham alleges that the “posting [of] his picture,” “label[ing]
him a threat or danger,” and “comparing him to [a] mass murderer” did not occur
in public. Id. at ¶¶ 63-65. Rather, the picture was allegedly posted on a flyer in
the police department and an officer purportedly told Cunningham’s mother that it
was only for police use and was taken down at her request, that the labeling of
Cunningham as “armed and dangerous” was only in the non-publicly available
police computer system and after Cunningham indeed obtained a permit to arm
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himself with a concealed weapon, and that the comparison to the Aurora shooter
was made in private in explanation for why Cunningham’s desire to openly carry a
weapon raised red flags regarding others’ safety. Id. Precautionary measures
designed to protect officers do not infringe on First Amendment rights, especially
where, as here, Cunningham failed to allege that Defendants attempted to prevent
him from challenging the validity of the ordinance. See e.g., doc. 31.
Accordingly, Cunningham failed to allege a colorable basis for his First
Amendment claim and thus Count IV is DISMISSED.
B.

Subject Matter Jurisdiction
In light of the court’s decision to dismiss the federal claims, Cunningham’s

only remaining claims arise under Alabama law. As the court stated in its
December 13, 2012 Order, doc. 8, federal courts are courts of limited jurisdiction
that may only handle cases arising under federal law or involving disputes
between parties with diverse citizenship. See 28 U.S.C. §§ 1331-1332; Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Because diversity of
citizenship does not exist here and no federal claims remain, this court lacks
jurisdiction to hear Cunningham’s state law claims. Therefore, the state law
claims are DISMISSED.
IV. CONCLUSION
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For the reasons stated above, Cunningham’s claims arising under federal
law are frivolous under 28 U.S.C. § 1915 and, accordingly, DISMISSED with
prejudice. Additionally, the court lacks jurisdiction over Cunningham’s claims
arising under Alabama law and those claims are DISMISSED without prejudice.
DONE this 27th day of February, 2013.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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