Lucio v. Tarrant, Alabama, City of et al
MEMORANDUM OPINION. Signed by Judge R David Proctor on 7/16/2014. (AVC)
2014 Jul-16 PM 04:53
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
TAMMY L. LUCIO,
CITY OF TARRANT, ALABAMA, et al.,
Case No.: 2:13-CV-1970-RDP
This matter is before the court on Defendant Reno's Motion to Dismiss the Amended
Complaint. (Doc. # 63). The matter has been fully briefed. (Docs. # 72 and 75).
Relevant Background and Facts
On or about September 19, 2011, Plaintiff Tammy L. Lucio was taken into custody for
disorderly conduct and was transported to the City of Tarrant Jail. (Doc. # 56 at 5). While there,
Plaintiff alleges that Defendant Smith pushed her, causing her to break her arm. Thereafter,
among other things, Plaintiff alleges that she was denied medical attention for her arm, despite
repeated requests for same, which she claims caused permanent damage. (Doc. # 56).
Plaintiff filed her original Complaint against City of Tarrant in state court on September
19, 2013. (Doc. # 1-1). Plaintiff’s original Complaint listed fictitious defendants F,G and H, but
did not name Defendant Reno or the City of Tarrant’s Chief of Police (even generically). (Doc.
# 1-1). Over two years later, on December 30, 2013, Plaintiff filed an Amended Complaint in
which she named Defendant Reno for the first time. Defendant Reno argues that Plaintiff’s
claims against him are barred by the two-year statute of limitations. (Doc. # 63). Plaintiff argues
that her amendment relates back to the filing of the original complaint because she included
fictitious parties. (Doc. # 72).
Standard of Review
The Federal Rules of Civil Procedure require that a complaint provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Having said that, the complaint must include enough facts “to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 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 and
conclusions” or “naked assertion[s]” without supporting factual allegations. Twombly, 550 U.S.
at 555, 557. In deciding a Rule 12(b)(6) motion to dismiss, courts view the allegations in the
complaint in the light most favorable to the non-moving party. Watts v. Fla. Int’l Univ., 495
F.3d 1289, 1295 (11th Cir. 2007).
Under Twombly, Plaintiff’s Amended Complaint must present plausible theories of
liability and allege specific facts establishing each claim. To survive a motion to dismiss, a
complaint must “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 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. A plausible claim for relief requires “enough fact[s] to
raise a reasonable expectation that discovery will reveal evidence” to support the claim.
Twombly, 550 U.S. at 556.
The Supreme Court has identified “two working principles” for a district court to use in
applying the facial plausibility standard. First, 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 when they are “couched as  factual allegation[s].” Iqbal, 129
S. Ct. at 1950. Second, “only a complaint that states a plausible claim for relief survives a
motion to dismiss.” Id. Application of the facial plausibility standard involves two steps. Under
one prong, the court must determine the scope and nature of the factual allegations that are wellpleaded and assume their veracity; and under the other prong, the court must proceed 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
claims are due to be dismissed. Id.
Statute of Limitations
Defendant Reno argues, and Plaintiff does not dispute, that the applicable statute of
limitations for Plaintiff’s ' 1983 claims and her negligence claim is two years. Plaintiff’s
Amended Complaint naming Defendant Reno was not filed within two years of the actions on
which the Complaint is based. Alabama Rules of Civil Procedure 9(h) and 15(c)(4) “‘allow a
plaintiff to avoid the bar of a statute of limitations by fictitiously naming defendants for which
actual parties can later be substituted.’” Ex parte Chemical Lime of Alabama, Inc., 916 So.2d
594, 597 (Ala. 2005) (quoting Fulmer v. Clark Equip. Co., 654 So.2d 45, 46 (Ala. 1995)).
However, in order to invoke the relation-back principle of Rule 15(c) in regard to fictitious-party
practice under Rule 9(h), a plaintiff (1) must state a cause of action against the party named
fictitiously in the body of the original complaint and (2) must be ignorant of the identity of the
fictitiously named party, in the sense of having no knowledge at the time of the filing that the
later-named party was in fact the party intended to be sued. Ex parte Hensel Phelps Constr. Co.,
7 So.3d 999, 1002–03 (Ala. 2008); Crawford v. Sundback, 678 So.2d 1057, 1059 (Ala. 1996).
“[I]t is incumbent upon the plaintiff to exercise due diligence to determine the true identity of
defendants both before and after filing the original complaint.” Ex parte Hensel Phelps Constr.
Co., 7 So.3d at 1002–03 (quoting Crawford, 678 So.2d at 1060) (emphasis in original).
In her original Complaint, Plaintiff alleges in Count Three that “fictitious party
defendants 1-8 whose true name is otherwise unknown but will be substituted by amendment
when ascertained failed to monitor the activities of the law enforcement officers and negligently
failed to properly supervise their activities and conduct.” (Doc. # 1-1 at 9). It goes without
saying that the Chief of Police fits neatly within this description. However, for over three
months after the statute of limitations had run, Plaintiff did not amend her Complaint to properly
name the Chief of Police either in name or by title. As Defendant Reno correctly notes, Plaintiff
was able to ascertain the identity of the Chief of Police of the City of Tarrant with no more than
minimal effort. Based on the facts before the court, it cannot be said that Plaintiff exercised due
diligence to determine the true identity of Defendant Reno either before or after the filing of her
original complaint. Ex parte Hensel Phelps Constr. Co., 7 So.3d at 1003. Therefore, Plaintiff
may not avoid the bar of the statute of limitations under these circumstances and her 1983 Claim
and Negligence claims against Defendant Reno are due to be dismissed as time barred.
Despite this holding, the court will address alternative grounds for the dismissal of certain
Official Capacity Section 1983 Claims
Plaintiff purports to sue all of the individual defendants in both their individual and
official capacities. (Doc. # 56). Plaintiff’s “official capacity” section 1983 claims against all
Defendants are due to be dismissed because these claims are, in actuality, claims against the City
of Tarrant itself. “[O]fficial capacity suits generally represent only another way of pleading an
action against the entity of which an officer is an agent.” Brandon v. Holt, 469 U.S. 464, 472 n.
21 (1985). Suits against an individual acting in his official capacity impose liability on the
governmental entity the official represents. See Busby v. City of Orlando, 931 F.2d 764, 776
(11th Cir. 1991) (“Because suits against a municipal officer sued in his official capacity and
direct suits are functionally equivalent, there no longer exists a need to bring official-capacity
actions against local government officials, because local government units can be sued directly. .
. .”). Because Plaintiff’s official capacity section 1983 claims against Defendants are claims
against the City, they are due to be dismissed as duplicative of her claims against the City.
Negligent Hiring, Training and/or Supervision
Plaintiff’s Negligent Hiring, Training and/or Supervision Claim is also due to be
dismissed in its entirety. Alabama does not recognize a cause of action for a supervisor’s
negligent training or supervision of a subordinate. See e.g., Doe v. City of Demopolis, 799
F.Supp.2d 1300, 1312 (S.D. Ala. 2011) (“Alabama law does not recognize a cause of action
against a supervisor or municipality for negligent training or supervision.”); Ott v. City of
Mobile, 169 F.Supp.2d 1301, 1314-15 (S.D. Ala. 2001) (dismissing a negligent retention,
training, and supervision claim against a municipality because “Alabama recognizes no cause of
action against a supervisor for negligent failure to supervise or train a subordinate. . . .”).
In a similar action in the Middle District of Alabama, the court granted summary
judgment in favor a city police chief on a state law claim for negligent training, supervision, and
retention. See Borton v. City of Dothan, 734 F.Supp.2d 1237, 1262 (M.D. Ala. 2010) (emphasis
added). The Borton court reached its conclusion after citing the general rule that a police chief
could not be liable for negligent training or supervision because “no such cause of action exists
under Alabama law. . . .” Borton, 734 F.Supp.2d at 1258 (citing Hamilton v. City of Jackson, 508
F. Supp. 2d 1045, 1054-58 (S.D. Ala. 2007)); see also Crutcher v. Vickers, 2012 WL 3860557,
*13 (N.D. Ala. 2012).
Accordingly, Plaintiff’s claim for negligent hiring, training, and
supervision fails to state claim upon which relief can be granted and is due to be dismissed.
Defendant Reno did not move to dismiss Plaintiff’s Assault claim, which is
understandable because it is unclear against whom this claim has been asserted. However, what
is clear is that, in any event, an assault claim against Reno cannot lie. Not only has Plaintiff not
alleged any actions by Defendant Reno which could possibly constitute assault, but also he is
entitled to state agent immunity. Ala. Code § 6–5–338. By enacting § 6–5–338, the Legislature
intended to afford municipal law-enforcement officials the immunity enjoyed by their state
counterparts. Ex parte Dixon, 55 So.3d 1171, 1176 (Ala. 2010); Sheth v. Webster, 145 F.3d
1231, 1237 (11th Cir. 1998). By its terms, the statute extends state-agent immunity to peace
officers performing discretionary functions within the line and scope of their law-enforcement
duties. Ex parte Dixon, 55 So.3d at 1176; Moore v. Crocker, 852 So.2d 89, 90 (Ala. 2002).
Therefore, this claim, to the extent is it stated against Defendant Reno, is also due to be
The statute of limitations for assault is six years. Hoff v. Goyer, 2014 WL 1646396 *4 (Ala.Civ.App., 2014).
For the foregoing reasons, Defendant Reno’s Motion to Dismiss (Doc. # 63) is due to be
granted. A separate order will be entered.
DONE and ORDERED this July 16, 2014.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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