Jackson v. City of Homewood et al
MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 5/29/13. (SAC )
2013 May-29 AM 10:51
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CITY OF HOMEWOOD, OFFICER
JASON DAVIS, and CHIEF OF
POLICE JIM ROBERSON,
This matter comes before the court on the motions to dismiss filed by the City of
Homewood (doc. 16) and Homewood Chief of Police Jim Roberson (doc. 18). Plaintiff Marquita
Jackson claims that Defendant Homewood Police Officer Jason Davis used excessive force while
arresting her, causing her physical harm and emotional damage and that both the City and Chief
Roberson should be held liable for Officer Davis’ deprivation of her constitutional rights. Officer
Davis has not filed a motion to dismiss, but the City and Chief Roberson have. For the following
reasons, the court will GRANT Chief Roberson’s motion to dismiss and GRANT IN PART and
DENY IN PART the City’s motion to dismiss.
STATEMENT OF FACTS
At about 10:00 p.m. on or about July 17, 2012, Officer Davis and other Homewood
police officers responded to a call by Destiny Ross at 202 Robert Jennison Road, Apartment 2A,
Homewood, Alabama. When the police officers arrived, Ms. Ross and her son, Zin Benson, were
inside the residence and Aquilla Bridges, Tabitha Moore, and Ms. Jackson were in the front yard.
Ms. Ross told the police officers that Ms. Jackson had a weapon. Ms. Jackson alleges that she
was already on the ground when Officer Davis put his foot on her back and pointed a shotgun at
her head. Ms. Jackson and Officer Davis were cursing at each other. Ms. Jackson was
handcuffed, no longer armed, and lying down when Officer Davis pressed his boot into her upper
back, “grinding her into the asphalt.” (Doc. 14, at ¶ 17). Ms. Jackson alleges that she turned her
face to tell Officer Davis to get off her back, but then Officer Davis jabbed the barrel of his
shotgun into the side of her face pushing her face back into the asphalt and yelled “Shut the f---up, N-----!” Id. at ¶ 19. Ms. Jackson alleged that this behavior continued for several minutes and
that Officer Davis continued to grind his boot into her back, stick his shotgun in her face, and
taunt her. Ms. Jackson alleged that Officer Davis’ face was “a mask of anger” and his “finger was
on the trigger.” Id. at ¶ 25. Ms. Ross, who initiated the call to the police, begged Officer Davis to
stop jabbing Ms. Jackson with the shotgun, but Officer Davis did not cease until one of the other
officers came over and pulled Ms. Jackson out from underneath Officer Davis and put her in the
The above paragraph summarizes all of the specific factual allegations contained in Ms.
Jackson’s Amended Complaint. Her Amended Complaint also contains four counts: Count I
against Officer Davis individually for excessive force under §1983; Count II against the City for
Officer Davis’ alleged “unskillfulness” under Alabama Code § 11-47-190; Count III against the
City for a pattern and practice of excessive force under Monell v. Dept. of Social Services, 436
U.S. 658 (1978); and Count IV against the City and Chief Roberson for failure to train and
supervise Officer Davis under Alabama state law and § 1983.
In Count III, Ms. Jackson alleges that Officer Davis’ unlawful actions were “pursuant to a
City policy and custom” and she states:
Prior to the arrest of the plaintiff, the City permitted, encouraged, and ratified a
pattern and practice of misconduct, including the use of excessive force, in that
failed to discipline or prosecute or in any manner deal with known
incidents of misconduct, including incidents involving the use of
excessive force; and
refused to investigate complaints of misconduct, including
complaints of the use of excessive force, and instead officially
claimed such incidents were justified and proper.
(Doc.14, at ¶ 42). Additionally, Ms. Jackson alleges that the “systematic failures and deficiencies
are policies and customs of the City and caused the police officers of this municipality to believe
that the use of excessive force and other misconduct would be tolerated and that complaints
would not be honestly or properly investigated, with the foreseeable result that officers would
unlawfully use excessive force against citizens.” Id. at ¶ 43.
In Count IV, Ms. Jackson alleges that “Defendants City and Chief Roberson failed to
train and supervise Officer Davis in the non-use of excessive force which was the direct cause of
injuries to the Plaintiff. It was foreseeable that the failure to adequately train Officer Davis in the
proper use of force would violate the constitutional rights of those citizens the officer
encountered. Defendants therefore exhibited reckless disregard for and deliberate indifference to
the plaintiff.” Id. at ¶ 46. Ms. Jackson alleges that Chief Roberson was the policy maker for the
City and that he made the deliberate or conscious choice not to instruct, train, supervise, control,
or discipline his subordinates. In Count IV, Ms. Jackson also replicates the above block-quoted
allegation against Chief Roberson. See supra ¶ 42.
STANDARD OF REVIEW
Generally, the Federal Rules of Civil Procedure require only that the complaint provide
“‘a short and plain statement of the claim’ that will give the defendant fair notice of what the
plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47
(1957) (quoting Fed. R. Civ. P. 8(a)). A plaintiff must provide the grounds of his entitlement,
but Rule 8 generally does not require “detailed factual allegations.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley, 355 U.S. at 47). It does, however, “demand[ ] more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal 556 U.S.
662, 678 (2009). Pleadings that contain nothing more than “a formulaic recitation of the
elements of a cause of action” do not meet Rule 8 standards nor do pleadings suffice that are
based merely upon “labels or conclusions” or “naked assertions” without supporting factual
allegations. Twombly, 550 U.S. at 555, 557.
The Supreme Court explained that “[t]o 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, 556 U.S. at 678 (quoting and explaining its decision in Twombly, 550 U.S. at 570)
(emphasis added). To be plausible on its face, the claim must contain enough facts that “allow[ ]
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. Although “[t]he plausibility standard is not akin to a
‘probability requirement,’” the complaint must demonstrate “more than a sheer possibility that a
defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent
with a defendant’s liability, it ‘stops short of the line between possibility and plausibility of
entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
The Supreme Court has recently identified “two working principles” for the district court
to use in applying the facial plausibility standard. The first principle is that, in evaluating
motions to dismiss, the court must assume the veracity of well-pleaded factual allegations;
however, the court does not have to accept as true legal conclusions even when “couched as 
factual allegation[s]” or “threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements.” Iqbal, 556 U.S. at 678.
The second principle is that “only a
complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. Thus,
under prong one, the court determines the factual allegations that are well-pleaded and assumes
their veracity, and then proceeds, under prong two, to determine the claim’s plausibility given the
well-pleaded facts. That task is “context-specific” and, to survive the motion, the allegations
must permit the court based on its “judicial experience and common sense. . . to infer more than
the mere possibility of misconduct.” Id. If the court determines that well-pleaded facts, accepted
as true, do not state a claim that is plausible, the claim must be dismissed. Id.
The court will not address Count I of the Amended Complaint because it is against
Officer Davis individually, and he did not file a motion to dismiss. Additionally, the court will
not address Count II under Alabama law of the Amended Complaint because the City did not
include any substantive argument on the claim in its motion to dismiss or its reply brief. But, as
the City pointed out in its reply brief, Ms. Jackson failed to respond to the City’s arguments that
Ms. Jackson cannot maintain a § 1983 claim against it for excessive force under the Fourteenth
Amendment and that the City is immune from Ms. Jackson’s claim for punitive damages. Courts
in the Eleventh Circuit have held that the failure of a party to respond to or oppose a pending
motion may constitute an abandonment of the claims at issue in that motion. See Coal. for the
Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000)
(finding that a party's failure to brief and argue an issue before the district court is grounds for
declaring it abandoned). Therefore, the court will GRANT the City’s motion to dismiss Ms.
Jackson’s § 1983 claim for excessive force under the Fourteenth Amendment and any claims of
punitive damages made against the City and will DISMISS those claims WITH PREJUDICE.
Count III against the City
Count III charges the City with an unlawful pattern and practice under § 1983 of allowing
its officers to exert excessive force when making arrests. For the sake of this motion, the court
will assume that Ms. Jackson has made a sufficient showing of the underlying constitutional
violation, excessive force, because the court need not analyze the merits of her excessive force
claim to rule on the instant motion.1 In Monell v. Dep’t of Social Services, the Supreme Court
ruled that plaintiffs may bring a § 1983 claim against local governments for damages or
declaratory or injunctive relief for an action taken pursuant to the municipality’s policy or
custom. 436 U.S. 658 (1978). “A plaintiff . . . has two methods by which to establish a
[municipality’s] policy: identify either (1) an officially promulgated [City] policy or (2) an
unofficial custom or practice of the [City] shown through the repeated acts of a final policymaker
for the [City].” Grech v. Clayton County, Ga., 335 F.3d 1326, 1329 (11th Cir. 2003) (citing
Monell, 436 U.S. at 690-91).
“[A]n inquiry into a governmental entity’s custom or policy is relevant only when a
constitutional deprivation has occurred.” Rooney v. Watson, 101 F.3d 1378, 1381 (citing
Vineyard v. County of Murray, Ga., 990 F.2d 1207, 1211 (11th Cir.), cert. denied, 510 U.S. 1024
In a case such as this one where Ms. Jackson has not alleged any official City policy, she
“must show that the [City] has a custom or practice of permitting it and that the [City’s] custom
or practice is ‘the ‘moving force [behind] the constitutional violation.’” Grech, 335 F.3d at 1330
(alteration in original) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989)). “[T]o
impose § 1983 liability on a municipality, a plaintiff must show: (1) that his constitutional rights
were violated; (2) that the municipality had a custom or policy that constituted deliberate
indifference to that constitutional right; and (3) that the policy or custom caused the violation.”
McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (citing City of Canton, 489 U.S. at
388). The Supreme Court recently elaborated on the deliberate indifference standard:
[D]eliberate indifference is a stringent standard of fault, requiring proof that a
municipal actor disregarded a known or obvious consequence of his action. . . . Thus,
when city policymakers are on actual or constructive notice that a particular omission
in their training program causes city employees to violate citizens’ constitutional
rights, the city may be deemed deliberately indifferent if the policymakers choose to
retain that program. . . . The city's policy of inaction in light of notice that its program
will cause constitutional violations is the functional equivalent of a decision by the
city itself to violate the Constitution. . . . Policymakers’ continued adherence to an
approach that they know or should know has failed to prevent tortious conduct by
employees may establish the conscious disregard for the consequences of their
action—the deliberate indifference—necessary to trigger municipal liability.
Connick v. Thompson, ___ U.S. ___, ___, 131 S.Ct. 1350, 1360 (2011) (citations omitted)
(internal quotations omitted).
The allegations that support the City’s liability for Officer Davis’ use of excessive force
are contained in paragraphs 41 to 43 of the Amended Complaint discussed above. Viewed in the
light most favorable to the Plaintiff, these allegations support the existence of a widespread
pattern of similar violations of an individual’s right to be free from excessive force. The
Amended Complaint alleges that the City knew about previous incidents of police officers using
excessive force and permitted, encouraged, or even ratified such conduct.
Although the Amended Complaint in this case may toe the line of what is acceptable
under Iqbal’s pleading standards, the City is still on fair notice of the claim against it in this
instance. The federal courts operate on a notice pleading system, and Twombly and Iqbal have
not changed the fundamentals of notice pleading under Rule 8. See Meyer v. Snyders Lance, Inc.,
2012 WL 6913724, *1 (M.D. Ga. 2012) (stating that Iqbal and Twombly “did not suggest that the
Supreme Court intended to rewrite Rule 12(b)(6) or abandon notice pleading”). Ms. Jackson’s
Amended Complaint alleged sufficient detail to put the City on adequate notice of the claim
asserted against it in Count III. Accordingly, the court will DENY the City’s motion to dismiss
Count III of the Amended Complaint.
Count IV against the City
Count IV charges the City with failure to properly train or supervise Officer Davis, but
the Amended Complaint does not make clear whether this claim rests upon state law or federal
law. As the City pointed out in its reply brief, Ms. Jackson failed to respond to the City’s
argument that her Alabama state law claim against the City for failure to train and supervise is
not cognizable. The failure of a party to respond to or oppose a pending motion may constitute
an abandonment of the claims at issue in that motion. See Coal. for the Abolition of Marijuana
Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000) (finding that a party's failure
to brief and argue an issue before the district court is grounds for declaring it abandoned). Thus,
the court will GRANT the City’s motion to dismiss and will DISMISS any Alabama state law
claim for failure to train or supervise against the City WITH PREJUDICE.
To the extent Ms. Jackson did intend to hold the City liable for failure to train or
supervise its police officers under federal law and § 1983, the court finds that Ms. Jackson has
sufficiently pled a plausible claim for relief. “[T]he inadequacy of police training may serve as
the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to
the rights of persons with whom the police come into contact.” City of Canton, 489 U.S. at 388.
“Only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality-a
‘policy’ as defined by our prior cases-can a city be liable for such a failure under § 1983.” Id. at
The allegations that support the City’s liability for failure to train and supervise its police
officers are contained in paragraphs 48 through 50 of the Amended Complaint discussed above.
Notably, one of these paragraphs is almost identical to Ms. Jackson’s allegations of the City’s
liability for Officer Davis’s use of excessive force under Monell in Count III. For the same
reasons that the court will allow Count III against the City to go forward, it will not dismiss
Count IV against the City. The claim as contained in the Amended Complaint was sufficient to
put the City on notice of a federal claim for failure to train and supervise against it, and the court
finds that is sufficient. Thus, the court will DENY the City’s motion to dismiss Count IV for a
federal claim for failure to train or supervise against the City.
Count IV against Chief Roberson
Count IV charges Chief Roberson with failure to properly train and supervise Officer
Davis on the lawful use of force, but the Amended Complaint does not make clear whether this
count rests upon state law or federal law. As Chief Roberson pointed out in his reply brief, Ms.
Jackson failed to respond to his argument that her Alabama state law claim against Chief
Roberson for failure to train and supervise is not cognizable. As stated before, the failure of a
party to respond to or oppose a pending motion may constitute an abandonment of the claims at
issue in that motion. See Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219
F.3d 1301, 1326 (11th Cir. 2000) (finding that a party's failure to brief and argue an issue before
the district court is grounds for declaring it abandoned). Thus, the court will GRANT Chief
Roberson’s motion to dismiss and will DISMISS any Alabama state law claim for failure to train
or supervise against Chief Roberson WITH PREJUDICE.
To the extent Ms. Jackson did intend to hold Chief Roberson liable for failure to train or
supervise the City’s police officers under federal law and § 1983, Ms. Jackson’s claim is barred
by the doctrine of qualified immunity. Qualified immunity protects government officials
performing discretionary functions from suit in their individual capacities unless the official
violates “clearly established statutory or constitutional rights of which a reasonable person would
have known.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citing Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). “The purpose of this immunity is to allow government officials to carry out
their discretionary duties without the fear of personal liability or harassing litigation, protecting
from suit all but the plainly incompetent or one who is knowingly violating the federal law.” Lee
v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation marks and citations
To receive qualified immunity, a government official “must first prove that he was acting
within the scope of his discretionary authority when the allegedly wrongful acts occurred.”
Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002). Government officials act within the scope of their
discretionary authority if “the actions were (1) ‘undertaken pursuant to the performance of [their]
duties’ and (2) ‘within the scope of [their] authority.’” Lenz v. Winburn, 51 F.3d 1540, 1545
(11th Cir. 1995) (quoting Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1998)). “Exercising
judgment . . . in the administration of a department or agency of government” is a recognized
discretionary function. Ex parte, 405 (Ala. 2000).
The court agrees with the Honorable Judge Albritton that “It cannot be seriously
contested that decisions concerning hiring, training, and supervision of officers fall within the
discretionary authority of the Chief of Police.” Hardy v. Town of Hayneville, 50 F. Supp. 2d
1176, 1189 (M.D. Ala. 1999). The burden now shifts to Ms. Jackson to show that qualified
immunity is inapplicable in this case. See Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)
(“Once the defendant establishes that he was acting within his discretionary authority, the burden
shifts to the plaintiff to show that qualified immunity is not appropriate.”).
The Supreme Court has articulated a two-part test to determine whether qualified
immunity is appropriate. See Saucier v. Katz, 533 U.S. 194, 201 (2001). First, the court must
ask this threshold question: “Taken in the light most favorable to the party asserting the injury,
do the facts alleged show the officer’s conduct violated a constitutional right[?]” Gonzalez v.
Reno, 325 F.3d 1228, 1234 (11th Cir. 2003) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
Second, “[i]f a violation could be made out on a favorable view of the parties’ submissions, the
next, sequential step is to ask whether the right was clearly established.” Id. (citing Saucier, 533
U.S. at 201).
The court does not even get to the second step in the Saucier analysis because even if the
court were to take every factual assertion in Ms. Jackson’s Amended Complaint as true, the court
still could not find any factually-based allegation sufficient to show that Chief Roberson violated
Ms. Jackson’s rights by failing to train and supervise Officer Davis. Ms. Jackson’s Amended
Complaint contains no specific factual allegations about Chief Roberson at all, and it does not
allege how he failed to train or supervise Officer Davis, or what action he took or failed to take
that allegedly deprived Ms. Jackson of her constitutional right to be free from excessive force.
Notably, the Amended Complaint also does not allege any specific instance or incident that
should have put Chief Roberson on notice that he needed to train, re-train, more closely
supervise, or even discipline the police officers under his command on the issue of lawful versus
excessive force. Notwithstanding Chief Roberson’s name, paragraphs 48 through 51 of the
Amended Complaint are such general assertions that they could be lifted from this pleading and
placed in any federal court complaint alleging a claim for failure to train or supervise. Because
such generic allegations without any factual support cannot be interpreted by this court to meet
the pleading standard set forth in Iqbal, the court will GRANT Officer Roberson’s motion to
dismiss Count IV and DISMISS any federal law claim for failure to train or supervise against
Officer Roberson WITHOUT PREJUDICE.
For the reasons discussed above, the court will GRANT IN PART and DENY IN PART
the City’s motion to dismiss and DISMISS WITH PREJUDICE any claims made by Ms. Jackson
under the Fourteenth Amendment and all claims for punitive damages against the City. The court
will DENY the City’s motion to dismiss Count III of the Amended Complaint. The court will
GRANT the City’s motion to dismiss any claim under Alabama law for failure to train and
supervise in Count IV and DISMISS that claim WITH PREJUDICE. The court will DENY the
City’s motion to dismiss any claim under federal law for failure to train and supervise in Count
Additionally, the court will GRANT Chief Roberson’s motion to dismiss. The court will
DISMISS WITH PREJUDICE any claim under Alabama law for failure to train and supervise in
Count IV and DISMISS WITHOUT PREJUDICE any claim under federal law for failure to train
and supervise in Count IV.
Counts I and II remain before the court to the extent that they seek compensatory
damages from the City and do not allege violations of Ms. Jackson’s rights under the Fourteenth
Amendment. The court will issue an order simultaneously to that effect.
DONE and ORDERED this 29th day of May, 2013.
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
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