Tolbert v. Trammell et al

Filing 44

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 8/4/14. (SAC )

FILED
2014 Aug-04 PM 03:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOSEPH ADAM TOLBERT,
Plaintiff,
v.
MARTIN TRAMMELL, et al.,
Defendants.

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CIVIL ACTION NO.
2:13-CV-02108-WMA

MEMORANDUM OPINION
This case comes before the court on a motion to dismiss filed
by defendant Martin Trammell (“Trammell”) and joint motions to
dismiss filed by defendants City of Birmingham (“City”) and Chief
of Police A.C. Roper (“Roper”). Plaintiff, Joseph Adam Tolbert,
instituted this action claiming that Trammell, an officer of the
Birmingham Police Department (“BPD”), violated state and federal
laws when he stopped plaintiff’s vehicle and that the City and
Roper had unconstitutional practices and unlawfully failed to train
and supervise Trammell and other BPD officers.
For the reasons stated below, the court will deny Trammell’s
motion to dismiss in part but will grant the City’s and Roper’s
joint motions to dismiss.

By separate order, the court will

dismiss counts three and four of the amended complaint as against
the City and Roper in his individual and official capacities,
counts one and two as against Trammell in his official capacity,
and counts eleven and twelve as against Roper in his individual and

official capacities. The case will proceed with counts one and two
only as against Trammell in his individual capacity and counts five
through ten as against Trammell in his individual capacity.
FACTS
For the purposes of a motion to dismiss for failure to state
a claim, the court accepts plaintiff’s well-pled facts as true and
draws all reasonable inferences in his favor. Am. United Life Ins.
Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007).

Trammell

disputes, but the City and Roper do not have sufficient information
to admit or deny, plaintiff’s allegations as to Trammell’s conduct
upon stopping plaintiff’s car on November 20, 2011. The parties do
not dispute that Trammell was an officer with the BPD on that date.
Trammell stopped plaintiff’s car near Trussville, Alabama,
after plaintiff had exited from the interstate.

Plaintiff had as

passengers his family, consisting of a woman and her three minor
children. Trammell sped past plaintiff’s car, cut in front of him,
and braked, causing plaintiff to stop suddenly.

Trammell ran to

the driver’s side window of plaintiff’s car, while showing his BPD
badge in his hand, and screamed through the open window, “You don’t
know who you are messing with!”
area

around

his

eye,

Trammell then hit plaintiff in the

either

intentionally

as

a

punch

or

unintentionally while flailing around his arms.
The woman yelled for Trammell to stop and told him that there
were children in the car.

Trammell pulled his handgun and pointed
2

it first at plaintiff, then at the woman, then at each of her three
children.

Plaintiff got out of his car, while Trammell held the

handgun and cursed and insulted plaintiff.

The woman shouted out

that she had called the police, at which point Trammell ran back to
his truck and drove away in it.
PROCEDURAL HISTORY
The City and Roper filed a joint motion to dismiss the
original complaint based on Federal Rules of Civil Procedure
12(b)(5) and 12(b)(6).

The court denied this motion insofar as it

was based on Rule 12(b)(5).

The City and Roper supplemented their

12(b)(6) motion in their original answers.

Specifically, their

second affirmative defenses asserted that the complaint fails to
state a claim upon which relief may be granted under 42 U.S.C. §
1983 (“§ 1983”); their fourteenth affirmative defenses asserted
immunity; and their eighteenth affirmative defenses asserted stateagent immunity pursuant to ALA. CODE § 6-5-338.

In its order of

April 24, 2014, the court gave notice to plaintiff of its intent to
consider all claims as against the City and as against Roper in his
individual and official capacities for possible dismissal. See
Davken, Inc. v. City of Daytona Beach Shores, 159 F. App'x 970, 973
(11th Cir. 2005); Jefferson Fourteenth Assocs. v. Wometco de Puerto
Rico, Inc., 695 F.2d 524, 527 (11th Cir. 1983).
Following briefing on the City’s and Roper’s 12(b)(6) motion,
plaintiff filed a motion to amend his complaint to supplement the
3

factual content.

The court held an oral hearing and granted the

motion pursuant to Federal Rule of Procedure 15(a)(2). At hearing,
plaintiff consented to dismissal of his state law claims as against
the City based on plaintiff’s failure to satisfy ALA. CODE §
11–47–23.

Plaintiff thereafter filed his amended complaint, which

added factual allegations and removed all state law claims as
against the City.

Pursuant to the schedule set by court order,

Trammell filed a motion to dismiss the amended complaint, and the
City

and

Roper

complaint.

filed

a

joint

motion

to

dismiss

the

amended

After briefing by all parties, defendants’ motions are

under submission to the court.
DISCUSSION
Defendants may move to dismiss a complaint pursuant to Rule
12(b)(6) if the plaintiff has failed to state a claim upon which
relief can be granted. FED. R. CIV. P. 12(b)(6).

To survive a

12(b)(6) motion, a complaint must “contain sufficient factual
matter, accepted as true, to state a claim for relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).

The court must view the complaint “in the light most

favorable to the plaintiff and accept all of the plaintiff's
well-pleaded facts” and any reasonable inferences drawn from those
facts as true. Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043,
1057 (11th Cir. 2007).

However, the court is “not bound to accept

as true a legal conclusion couched as a factual allegation.” Bell
4

Atl.

Corp.

omitted).

v.

Twombly,

550

U.S.

544,

555

(2007)

(quotation

Mere conclusory statements in support of “threadbare

recitals of the elements of a cause of action” do not suffice to
defeat a 12(b)(6) motion. Iqbal, 556 U.S. at 678.
Defendants seek dismissal of all claims based on the failure
to state a claim and based on qualified immunity.

The court

addresses the parties’ arguments in the following order: (I) the §
1983 claims, (II) the claim for declaratory and injunctive relief,
(III) the state law claims against Trammell, and (IV) the state law
claims against Roper.
I.

Section 1983 Claims – Counts 1-3
Trammell contends that plaintiff’s amended complaint fails to

state a claim against him under § 1983 and that he is entitled to
federal qualified immunity (counts 1-2).

The City and Roper

contend that plaintiff’s amended complaint fails to state a claim
against them under § 1983 and that Roper is entitled to federal
qualified immunity (count 3).

For both types of allegations——that

a complaint fails to state a claim and that a defendant is entitled
to federal qualified immunity——the first step in assessing § 1983
claims requires “isolat[ing] the precise constitutional violation”
alleged. Baker v. McCollan, 443 U.S. 137, 140 (1979); see Hope v.
Pelzer, 536 U.S. 730, 736 (2002). Section 1983 does not confer any
substantive rights, so § 1983 claims must plead violations of
“federal rights elsewhere conferred.” Graham v. Connor, 490 U.S.
5

386, 394 (1989) (quoting Baker, 443 U.S. at 144 n.3).
Plaintiff’s amended complaint pleads violations of his rights
under the Fourth, Fifth, Eighth, and Fourteenth Amendments.

As

discussed further below, the court will dismiss the § 1983 claims
insofar as they are based on the Fifth, Eighth, or Fourteenth
Amendments; the court will dismiss some but not all of the § 1983
claims insofar as they are based on the Fourth Amendment.
A.

Eighth Amendment

Plaintiff asserts that Trammell, the City, and Roper are
liable for Trammell’s violations of plaintiff’s Eighth Amendment
rights, presumably the right to be free from cruel and unusual
punishment.

The facts indicate that Trammell’s interactions with

plaintiff occurred during a vehicle stop, not during any postconviction

detention.

“It

is

beyond

cavil

that

the

Eighth

Amendment applies only after a prisoner is convicted.” United
States v. Myers, 972 F.2d 1566, 1571 (11th Cir. 1992) (emphasis
added); see also Lancaster v. Monroe Cnty., Ala., 116 F.3d 1419,
1425 n. 6 (11th Cir. 1997).

Thus, plaintiff’s § 1983 claims as

against Trammell, the City, and Roper will be dismissed insofar as
the claims are based on the Eighth Amendment.
B.

Fourteenth Amendment

Plaintiff claims that Trammell, the City, and Roper are liable
for Trammell’s

violations

of

plaintiff’s
6

Fourteenth

Amendment

rights, presumably his right to substantive due process.1
Fourteenth

Amendment,

section

1,

restrains

the

states

The
from

depriving any person of life, liberty, or property without due
process of law.

However, “[a]ll claims that law enforcement

officers have used excessive force ... in the course of an arrest,
investigatory stop, or other seizure of a free citizen should be
analyzed

under

the

Fourth

Amendment

and

its

reasonableness

standard, rather than under a substantive due process approach.”
Graham v.

Connor,

490

U.S.

386,

394

(1989)

(quotation

marks

omitted).

Following this directive, claims that a police officer

used an objectively unreasonable amount of force during a stop
under color of law, like plaintiff’s claims, should be analyzed
under the Fourth Amendment rather than the Fourteenth Amendment.
See

id.

Accordingly,

plaintiff’s

§

1983

claims

as

against

Trammell, the City, and Roper will be dismissed insofar as the
claims are based on the Fourteenth Amendment.
C.

Fifth Amendment

Plaintiff asserts that Trammell violated his Fifth Amendment

1

The amended complaint does not contain allegations that suggest
violations of the Fourteenth Amendment’s Privileges or Immunities Clause
or Equal Protection Clause. Although “[c]overing up the use of excessive
force may hinder a criminal defendant's access to the courts to redress a
constitutional violation, a right protected by several constitutional
provisions,” plaintiff does not claim that the City and Roper tried to
cover up misconduct, only that they failed to train and supervise
Trammell and the BPD. See Hadley v. Gutierrez, 526 F.3d 1324, 1332 (11th
Cir. 2008) (citation omitted); see also Christopher v. Harbury, 536 U.S.
403, 415 n. 12 (2002).

7

rights in paragraph 30, although he does not reference the Fifth
Amendment elsewhere in the amended complaint. Doc. 35 at 9-10. The
court infers that plaintiff intended to plead violations of his
Fifth Amendment right to substantive due process.2

As noted above,

police officer excessive force claims “should be analyzed under the
Fourth Amendment and its reasonableness standard, rather than under
a substantive due process approach.” Graham v. Connor, 490 U.S.
386, 394 (1989) (quotation marks omitted).

Thus, plaintiff’s §

1983 claims as against Trammell, the City, and Roper will be
dismissed insofar as the claims are based on the Fifth Amendment.
D.

Fourth Amendment

The Fourth Amendment is the proper source for assessing claims
of constitutional violations in relation to police officer force in
the course of an investigatory stop. Id.

This section analyzes

plaintiff’s § 1983 claims based on the Fourth Amendment as against
(1) the City, (2) Roper in his official capacity, (3) Trammell in
his official capacity, (4) Trammell in his individual capacity, and
(5) Roper in his individual capacity. The court concludes that the
amended complaint

states

a

claim

as against

Trammell

in

his

individual capacity, but fails to state a claim as against the

2

Although incorporated against the states under the Due Process
Clause of the Fourteenth Amendment, the Fifth Amendment’s Double Jeopardy
Clause, privilege against self-incrimination, and Just Compensation
Clause do not apply naturally to the facts of the case. See McDonald v.
City of Chicago, Ill., 561 U.S. 742 n.12 (2010). The grand jury
indictment requirement has not been incorporated. Id. at 742 n.13.

8

City, Roper

in

either

capacity,

or

Trammell

in

his

official

capacity.
The City
Liability for a municipality under § 1983 for the conduct of
its employee does not rest on respondeat superior or any other
theory of vicarious liability. Bd. of Cnty. Comm'rs of Bryan Cnty.,
Okla. v. Brown, 520 U.S. 397, 403 (1997). Rather, the municipality
can be held directly responsible for constitutional deprivations
only if they resulted from an official policy or a custom so
widespread as to have the force of law. Monell v. Dep't of Soc.
Servs. of City of New York, 436 U.S. 658, 690-91 (1978).

Plaintiff

must show “a direct causal link between the municipal action and
the

deprivation

municipal

action

of

federal

was

rights”

taken

with

and
the

must

show

requisite

that
degree

“the
of

culpability.” Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown,
520 U.S. 397, 404 (1997).

In the context of inadequate police

training and supervision, as claimed by plaintiff, “only where a
municipality’s failure to train its employees in a relevant respect
evidences

a

‘deliberate

indifference’

to

the

rights

of

its

inhabitants can such a shortcoming be properly thought of as a city
‘policy or custom’ that is actionable under § 1983.” City of
Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989).

Deliberate

indifference may be shown by “evidence that the municipality knew
of a need to train and/or supervise in a particular area and the
9

municipality made a deliberate choice not to take any action.” Gold
v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998).

The

Eleventh Circuit has made clear that a municipality cannot be held
liable for failing to train or supervise “without notice of a need
to

train

or

supervise in

a

particular

area,”

which

requires

awareness of a pattern of “similar” constitutional violations. Id.
at 1351.
It is not enough that plaintiff’s amended complaint asserts
the conclusions that the City acted with “deliberate indifference”
and

had

“direct

notice”

of

Trammell’s

and

other

officers’

“widespread abuse,” or asserts that Trammell acted pursuant to the
“customs or practice” of the City. Doc. 35, ¶¶ 24, 27, 28, 47.
This court is “not bound to accept as true a legal conclusion
couched as a factual allegation.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quotation omitted).
In the present case, plaintiff has not alleged sufficient
facts to plausibly indicate that the City knew of specific prior
incidents of similar constitutional deprivations that would give
the City notice of the need to further train or supervise the BPD.
Although the amended complaint presents some statistical data, the
court

agrees

with

Magistrate

Judge

Putnam

that

“[t]he

raw

statistical evidence ..., in the absence of some context or expert
explanation, simply fails to present anything probative on the
question of whether the City is on notice of a need for more

10

supervision

or

training.”

Thompson

v.

City

of

Birmingham,

2:12-CV-00623-TMP, 2014 WL 1043631, at *12 (N.D. Ala. Mar. 14,
2014); see Doc. 35 ¶ 29.
whether

2,449

Use

of

No fact-finder has any means of knowing
Force

Reports

and

203

excessive

force

complaints between January 1, 2007, and February 1, 2012, are large
or small numbers in proportion to Birmingham’s population, or
whether a percentage of such reports and complaints are presumed to
be well-founded. See id.

Furthermore, these numbers are not

subdivided by year in the amended complaint; they may well show a
significant decrease per annum. Without context and analysis, this
raw data does nothing to establish a pattern of constitutional
violations——much less similar violations——that would give the City
notice of the need to further train or supervise the BPD.
In the amended complaint, plaintiff also references multiple
excessive force allegations that resulted in state and federal
lawsuits.

The Eleventh Circuit has held that complaints of police

misconduct alone, without a demonstration that such complaints have
merit,

do

not

establish

a

pattern

of

similar

constitutional

violations and do not give the city notice of police misconduct.
Gold v. City of Miami, 151 F.3d 1346, 1351 (11th Cir. 1998) (citing
Brooks v. Scheib, 813 F.2d 1191 (11th Cir. 1987)).

As the Eleventh

Circuit has observed, “‘the number of complaints bears no relation
to their validity.’” Id. (quoting Brooks, 813 F.2d at 1191).

The

amended complaint does not allege the dispositions of the five
11

excessive force cases or show that the cases have (or had) any
merit.3

This court, perhaps of its own motion, could take judicial

notice of the records for those cases, but no party has submitted
the records or even listed the case numbers, and the court declines
to conduct massive research on its own time and initiative.

The

mere fact that five lawsuits were filed and included excessive
force

allegations

does

not

establish

a

pattern

of

similar

constitutional violations that gave the City notice of a need to
further train or supervise the BPD.

Likewise, the number of

excessive force complaints that the BPD investigated over five
years has little significance without information about how many of
the complaints had merit. See id.; Doc. 35, ¶ 29.
Even if the claims of excessive force referenced in the
amended complaint were demonstrated to have merit, they are not so
“substantially similar” to Trammell’s alleged misconduct that they
form a pattern of similar constitutional violations. See Mercado v.
City of Orlando, 407 F.3d 1152, 1162 (11th Cir. 2005); Gold, 151
F.3d at 1351.

The limited information in the amended complaint

indicates that the police conduct complained of in at least five of

3

The City and Roper claim in their joint Reply that none of the
alleged instances of excessive force referenced in plaintiff’s amended
complaint has been sustained. Doc. 43 at 4-5. The court has not taken
judicial notice of any court records, so the court considers only the
information in the amended complaint. The amended complaint mentions
five lawsuits; it mentions none relating to the sixth incident, only
internal investigations. See Doc. 35, ¶ 27(a). Regardless, the sixth
incident involved dissimilar facts, so it could not form a pattern even
though the sustained improper use of force complaints suggest that those
complaints had merit.

12

the

six

claims

occurred

arrests.4

during

Doc.

35,

¶

27.

Hypothetically, if none of those officers encountered resistence
and a plaintiff demonstrated that all five claims had merit, those
five claims might provide notice to the City that the BPD requires
further training and supervision on appropriate force when an
officer makes an arrest and encounters no resistance.

However,

plaintiff does not claim that Trammell engaged in substantially
similar conduct.

Using excessive force during an arrest when o

resistance is offered differs markedly from pulling over a vehicle
for no reason and shouting and pointing a gun at the passengers
with no provocation. Plaintiff also does not allege specific facts
indicating

that

Trammell

himself

committed

other

similar

constitutional violations such that the City might have notice that
Trammell as an individual requires further training or supervision.
In

sum,

Trammell’s

plaintiff

claimed

has

not

misconduct

alleged
fits

facts

within

a

showing
pattern

that
of

substantially similar constitutional violations such that the City
would have notice that the BPD or any officer requires further
training or supervision in a specific area.

4

Without any facts to

The sixth excessive force claim in the amended complaint (listed
first) does not fit naturally with the other five because plaintiff does
not specify the status of the “unconscious man,” i.e., the circumstances
under which the man came to be thrown from a car, unconscious, and in the
presence of police officers. See Doc. 35, ¶ 27(a). Certainly, the facts
provided about this claim differ significantly from plaintiff’s
narrative. Plaintiff was not thrown from a car and beaten while
unconscious. Thus, this claim also would not be “similar” to plaintiff’s
claim for the purposes of establishing a pattern of similar
constitutional violations.

13

show that the City had notice, the City’s alleged failure to train
or supervise does not evidence “deliberate indifference” or rise to
the level of a custom actionable under § 1983. See City of Canton,
Ohio v. Harris, 489 U.S. 378, 388 (1989). Accordingly, plaintiff’s
§ 1983 claims as against the City will be dismissed insofar as they
are based on the Fourth Amendment.
Roper in his official capacity
Suits

against

government

officials

in

their

official

capacities “‘generally represent only another way of pleading an
action against an entity of which an officer is an agent’” and, “in
all respects other than name, [are] to be treated as a suit against
the entity.” Id. (quotation and citation omitted).

Plaintiff’s §

1983 claim based on the Fourth Amendment will be dismissed as
against Roper in his official capacity for the same reasons that it
will be dismissed as against the City.

Trammell in his official capacity
Suits

against

government

officials

in

their

official

capacities “‘generally represent only another way of pleading an
action against an entity of which an officer is an agent’” and, “in
all respects other than name, [are] to be treated as a suit against
the entity.” Kentucky v. Graham, 473 U.S. 159, 165–66 (1985)
(quotation and citation omitted).

Plaintiff’s § 1983 claim based

on the Fourth Amendment will be dismissed as against Trammell in
14

his

official

capacity

for

the

same

reasons

that

it

will

be

dismissed as against the City.

Trammell in his individual capacity
Under

the

doctrine

of

qualified

immunity,

a

government

official acting within his discretionary authority is immune from
suit unless the official's conduct violates “‘clearly established
statutory or constitutional rights of which a reasonable person
would have known.’” Hope v. Pelzer, 536 U.S. 730, 738 (2002)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

As an

initial step, the official has the burden to demonstrate that he
was acting within his discretionary authority by showing “objective
circumstances which would compel the conclusion that his actions
were undertaken pursuant to the performance of his duties and
within the scope of his authority.” See Jordan v. Doe, 38 F.3d 1559
(11th Cir. 1994) (quoting Rich v. Dollar, 841 F.2d 1558, 1564 (11th
Cir. 1988), modified in part by Hope, 536 U.S. at 736-38.

Trammell

asserts, and plaintiff does not contest, that Trammell’s selfidentification as a BPD officer and presentation of his BPD badge
upon stopping plaintiff’s car satisfies this burden. See Doc. 37 at
5; Doc. 40, ¶¶ 4-9.

The court is satisfied that these objective

circumstances compel the conclusion that Trammell stopped plaintiff
in performance of his duties as a BPD officer and did so within the
scope of that authority.
Having

established

that

Trammell
15

was

acting

within

his

discretionary authority, plaintiff has the burden to show that
Trammell is not entitled to qualified immunity. See Caldwell v.
Warden, FCI Talladega, 748 F.3d 1090, 1102 (11th Cir. 2014).

The

Supreme Court has created a two-part test for whether an official
is entitled to qualified immunity. Id.
whether

plaintiff’s

allegations,

The court must determine
if

true,

constitutional violation.” Hope, 536 U.S. at 736.

“establish

a

If they do, the

court next must assess whether the constitutional right allegedly
violated was “clearly established” at the time. Saucier v. Katz,
533 U.S. 194, 202 (2001).

For the second step of evaluating

whether a right is clearly established, “the relevant, dispositive
inquiry is ‘whether it would be clear to a reasonable officer that
his

conduct

was

unlawful

in

the

situation

he

confronted.’”

Caldwell, 748 F.3d at 1102 (quoting Cottone v. Jenne, 326 F.3d
1352, 1359 (11th Cir. 2003)).

Applied to the present case, the

court finds that plaintiff has satisfied his burden such that
Trammell is not entitled to qualified immunity at this juncture.
Interpreting the facts alleged in the light most favorable to
plaintiff, Trammell’s conduct was such that no reasonable officer
could have believed that his actions were lawful even without
reference to materially similar cases. See Mercado v. City of
Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005) (citations omitted).5

5

For the sake of brevity, the court does not address the other two
ways in which a right can be clearly established. See Mercado, 407 F.3d
at 1159.

16

Plaintiff claims that Trammell stopped plaintiff’s car for no
reason, hit plaintiff in the face, and pointed a gun at plaintiff,
his female passenger, and her three minor children——all without
Trammell having any cause, without plaintiff posing any threat, and
without any “legitimate law enforcement purpose.” See Lee v.
Ferraro, 284 F.3d 1188, 1199 (11th Cir. 2002).

These specific

allegations of fact, if proven, lie “so obviously at the very core
of what the Fourth Amendment prohibits that the unlawfulness of the
conduct was readily apparent to the official, notwithstanding the
lack of case law.”•See id. (quoting Priester v. City of Riviera
Beach, 208 F.3d 919, 926 (11th Cir. 2000)); see also Graham v.
Connor, 490 U.S. 386, 396-97 (1989) (thereby clearly violating the
Fourth Amendment’s “objective reasonableness” standard for use of
force in an investigatory stop).

Thus, Trammell’s alleged conduct

is “clearly established as a constitutional violation because no
reasonable officer could have believed that [his] actions were
legal.” Ferraro, 284 F.3d at 1199.
Interpreting the facts favorably to plaintiff, Trammell is not
entitled to qualified immunity and plaintiff has stated a claim
upon which relief can be granted, so plaintiff’s § 1983 claims as
against Trammell in his individual capacity will not be dismissed
insofar as they are based on the Fourth Amendment.
Roper in his individual capacity
As discussed above, a government official acting within his
17

discretionary authority is immune from suit unless the official's
conduct violates “‘clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Hope v.
Pelzer, 536 U.S. 730, 738 (2002) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)).

Roper has asserted, and plaintiff has

conceded, that Roper was acting within his discretionary authority
when training and supervising Trammell. Doc. 38 at 12, n.4; Doc.
26, ¶ 7.

Thus, plaintiff must show that Roper is not entitled to

qualified immunity. Hope, 536 U.S. at 736.
next

considers

constitutional

whether

plaintiff’s

violation and whether

Accordingly, the court

allegations
the

establish

constitutional

a

right

allegedly violated was clearly established at the time. See id.
For the purposes of this section, the court assumes that Trammell’s
conduct, as described by plaintiff, violated plaintiff’s Fourth
Amendment rights.

The focus of this section, then, shifts to the

second step of the qualified immunity analysis and whether “it was
or should have been obvious to [Roper] that what [he] was doing was
in

violation

of

federal

law”

when

training

and

supervising

Trammell. See Braddy v. Fla. Dep't of Labor & Emp’t Sec., 133 F.3d
797, 801-02 (11th Cir. 1998).
Supervisors can violate federal law and be held individually
liable for the conduct of their subordinates under § 1983 “when
there is a causal connection between actions of the supervising
official and the alleged constitutional deprivation.” Brown v.

18

Crawford, 906 F.2d 667, 671 (11th Cir. 1990) (citations omitted).6
Such a causal connection exists (1) when “a history of widespread
abuse” put the supervisor on notice of the need to correct the
constitutional deprivation, and he failed to do so; (2) when the
supervisor’s custom or policy resulted in deliberate indifference
to constitutional rights; or (3) when facts support the inference
that the supervisor directed his subordinates to act unlawfully or
knew that they would and failed to stop them. Gonzalez v. Reno, 325
F.3d 1228, 1234 (11th Cir. 2003) (quoting Brown, 906 F.2d at 671)
(other citations omitted).

The standard for supervisory liability

is “extremely rigorous.” Braddy, 133 F.3d at 801-02.
Plaintiff’s amended complaint uses buzzwords for supervisory
liability

but

contains

few

supporting

factual

allegations.

Plaintiff claims that “Defendant Trammell and other officers’
obvious, flagrant, and rampant behavior, has continued across a
lengthy period of time and in doing so is sufficient to put
Defendant

Roper

deprivations

...

which

on

notice

resulted

in

of

the

the

widespread

violation

constitutional rights ....” Doc. 35, ¶ 27.

of

abuse

and

citizens’

The amended complaint

also claims that Roper acted with “deliberate indifference” and “as
a matter of custom and practice.” Doc. 35, ¶¶ 47-48. This language

6

Supervisor liability can also occur when the
participates in the constitutional deprivation, see
of Labor & Emp’t Sec., 133 F.3d 797, 801 (11th Cir.
does not allege that Roper directly participated in
misconduct.

19

supervisor directly
Braddy v. Fla. Dep't
1998), but plaintiff
Trammell’s alleged

clearly mirrors the first two categories of causal connections for
supervisory liability above, but the court is not required to
accept

as

true

“legal

conclusions[]

couched

as

factual

allegation[s].” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quotation omitted). Plaintiff’s bare assertions that Roper
had notice and knowledge do not suffice; the “conclusory nature” of
such assertions “disentitles them to the presumption of truth.” See
Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009).
As for factual content, the amended complaint includes six
other specific incidents involving alleged excessive force in
addition
Trammell.

to

plaintiff’s
The

amended

allegations
complaint

about

notably

his

encounter

lacks

any

with

specific

allegation that Trammell himself committed any other misconduct.7
Plaintiff

claims

that

one

of

the

six

other

excessive

force

incidents resulted in the BPD internally sustaining five improper
use of force claims but, otherwise, makes no allegations as to the
results of the associated lawsuits and does not seek judicial
notice of their findings. See Doc. 35, ¶ 27.

This incomplete

information does not reasonably allow an inference that all six
incidents generated meritorious excessive force claims that gave
7

Plaintiff claims that Roper said that BPD supervisors “need to do
a better job of reporting and documenting uses of force by police
officers,” Doc. 26, ¶ 24 (quoting Thompson v. City of Birmingham,
2:12-CV-00623-TMP, 2014 WL 1043631, at *12 (N.D. Ala. Mar. 14, 2014)).
Another plaintiff made this allegation, and plaintiff did not include it
in his amended complaint as a sworn factual allegation. Accordingly,
this court does not consider it as part of the pleadings in the motions
to dismiss.

20

notice to Roper that the BPD and Trammell required further training
or supervision, or to otherwise infer that Roper had knowledge.
Without

Roper

demonstrate

having

the

notice

causal

or

knowledge,

connection

plaintiff

required

for

cannot

supervisory

liability under the first two categories.
Plaintiff tacitly acknowledges the lack of factual support by
stating, “that is what discovery is for,” emphasizing the pleading
standard, and arguing for time to gather more details during
discovery. Doc. 41, ¶¶ 8-9.

Rebutting qualified immunity imposes

more of a burden than stating a claim, however, and even stating a
claim “does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions.” Iqbal, 556 U.S. at 679.
Pleadings that fail to state a claim are not entitled to discovery
to improve their factual foundation. Id.
Lacking

factual

allegations

to

support

plaintiff’s

bare

assertions, the amended complaint does not plausibly show a causal
connection

between

Roper’s

actions

and

Trammell’s

alleged

misconduct or satisfy the “extremely rigorous” standard for § 1983
supervisory liability. See Braddy, 133 F.3d at 801-02.

Therefore,

the court concludes that Roper is entitled to qualified immunity,
and plaintiff’s § 1983 claim as against Roper in his individual
capacity based on the Fourth Amendment will be dismissed.
II.

Declaratory and Injunctive Relief — Count 4
In count four of the amended complaint, plaintiff seeks
21

declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201-02.
More specifically, plaintiff asks the court to order the City and
Roper to cease the acts leading to the claimed unlawful conduct and
to adopt remedial policies and practices.

The court notes that

plaintiff, the City, and Roper explicitly rely on their arguments
from the first round of briefing.8 Doc. 38 at 12; Doc. 41 at 7 n.2.
However, those earlier arguments only addressed the facts alleged
in the original complaint, not the facts alleged in the amended
complaint.

Although plaintiff did not alter the language of count

four in the amended complaint, he did add to the incorporated
factual allegations.

The added facts significantly affect the

request for injunctive relief and limit the relevance of the
parties’ earlier arguments. The court must consider all facts from
the amended complaint in the light most favorable to plaintiff.
To obtain injunctive relief, a party must prove “a real and
immediate——as opposed to a merely conjectural or hypothetical——
threat of future injury.” Church v. City of Huntsville, 30 F.3d
1332, 1337-38 (11th Cir. 1994).

In cases involving police force,

two critical factors in showing the threat of future injury are
whether the police target a particular group, and whether the

8

The City and Roper point out that plaintiff conceded count four at
hearing on June 2, 2014. However, the court stated at hearing that it
would not consider the concession as a dismissal of the claim. Instead,
plaintiff could include count four in the amended complaint, and the
parties could argue its merits in the renewed motions to dismiss. The
parties did not argue the merits anew or at length, but the court still
will consider them.

22

police have an affirmative policy of ordering or authorizing
officers to act in such a way. See id. at 1337; 31 Foster Children
v. Bush, 329 F.3d 1255, 1266 (11th Cir. 2003).
These factors were prima facie present in Church v. City of
Huntsville,9 when the plaintiffs alleged that the police had an
affirmative policy of harassing and arresting homeless persons as
part of a campaign to drive the homeless out of the city. 30 F.3d
at 1339.

Thus, homeless persons as a group were “far more likely

to have [similar] future encounters with the police” than other
citizens. Id. at 1337.

Conversely, these factors were absent in

City of Los Angeles v. Lyons, when the police stopped Lyons for a
traffic violation and, “without provocation or legal excuse,”
seized him and applied a chokehold. 461 U.S. 95, 97, 111 (1983).
Lyons could not show that he was “more entitled to an injunction
than any other citizen of Los Angeles,” and he did not claim that
the police ordered or authorized officers to use chokeholds on all
citizens without provocation. Id. at 106, 108.
In the present case, the amended complaint does not claim that
the

City

or

Roper

is

targeting

a

particular

group,

or

that

plaintiff and the six other alleged victims of excessive force have
any characteristics in common. The amended complaint also does not

9

The Eleventh Circuit found these factors sufficiently present to
confer standing, but did not find that plaintiffs had shown such a
substantial likelihood of success on the merits to be granted a
preliminary injunction. Church, 30 F.3d at 1337-38, 1342-46.

23

claim that the City or Roper has an affirmative policy of ordering
or authorizing BPD officers to stop vehicles without cause and hit
drivers without provocation or to use excessive force during
arrests.

Rather, plaintiff claims that the City and Roper have

shown “implicit approval” of the unlawful conduct by their “failure
to compose, implement and/or enforce policies and procedures to
insure [sic] the police employees are not violating the federally
protected and Constitutional rights of citizens.” Doc. 35, ¶ 55-56
(emphasis added). Such claims, if proven, parallel Lyons more than
Church.

Thus, because the amended complaint does not claim that

a particular citizen or group of citizens would be threatened by
future harm and does not claim that an affirmative policy exists
whereby BPD officers are ordered or authorized to violate citizens’
rights, the court will dismiss count four as against the City and
as against Roper.
III. State Law Claims Against Trammell — Counts 5-10
Trammell seeks dismissal of counts five through ten of the
amended complaint based on his assertion of state-agent immunity
pursuant to ALA. CODE § 6-5-338.
the

state

law

claims

of

Counts five through ten consist of

negligence/

wantonness,

harassment,

assault, menacing, outrage, and assault and battery.
Section

6-5-338

“extends

state-agent

immunity

to

peace

officers performing discretionary functions within the line and
scope of their law-enforcement duties.” Howard v. City of Atmore,
24

887 So. 2d 201, 203 (Ala. 2003) (quotation marks and quotation
omitted).

More specific to Trammell’s duties, state agents are

immune from personal civil liability “when the conduct made the
basis of the claim against the agent is based upon the agent's ...
exercising judgment in the enforcement of the criminal laws of the
State, including, but not limited to, law-enforcement officers'
arresting or attempting to arrest persons ...” Ex parte Cranman,
792 So. 2d 392, 405 (Ala. 2000).

Plaintiff does not dispute that

§ 6-5-338 applies to Trammell and that Trammell was acting within
his discretionary authority. Doc. 40 at 8-9.

The undisputed facts

indicate that Trammell stopped plaintiff’s car using his authority
as a BPD officer and that he identified himself as such when he
approached. Plaintiff disputes, however, that Trammell is entitled
to state-agent immunity.
Trammell has raised the affirmative defense of state-agent
immunity and shown that he was acting within his discretionary
authority. In order to nullify state-agent immunity, plaintiff has
the

burden

to

allege

facts

showing

that

Trammell

has

acted

willfully, maliciously, fraudulently, in bad faith, beyond his
authority, or under a mistaken interpretation of the law. See Ex
parte

Estate

of

Reynolds,

946

So.

2d

450,

452

(Ala.

2006).

Plaintiff has alleged sufficient specific facts that are “plausible
on [their] face” to meet this initial burden. See Ashcroft v.

25

Iqbal, 556 U.S. 662, 678 (2009).10

The amended complaint claims

that Trammell stopped plaintiff’s car without grounds for doing so,
hit plaintiff despite not being threatened, and pointed his gun at
the

car’s

occupants

without

provocation.

These

specific

allegations, if proven, surely qualify as actions taken willfully,
in bad faith, and beyond Trammell’s authority as a BPD officer.
Trammell will have the opportunity to file a motion for summary
judgment arguing on this issue after the parties have had time to
conduct discovery. See Ex parte Butts, 775 So. 2d 173, 178 (Ala.
2000).

For now, however, Trammell is not entitled to state-agent

immunity, and the court will deny his motion to dismiss the state
law claims against him on this ground.
IV.

State Law Claims Against Roper — Counts 11-12
Plaintiff does not specify in counts eleven or twelve of the

amended complaint whether he makes these claims as against Roper in
his individual capacity only.

During the first round of briefing,

plaintiff conceded that his state law claims both as against the
City and as against Roper in his official capacity were due to be
10

Plaintiff argues that he need show only that he “may possibly
prevail” and that “[i]t is conceivable that [he] could prove [the
required] facts ...” See Ex parte Butts, 775 So. 2d 173, 177 (Ala. 2000)
(quoting Patton v. Black, 646 So.2d 8, 10 (Ala. 1994) (emphasis added).
However, the cited cases employ the Alabama 12(b)(6) standard, rather
than the federal 12(b)(6) standard that this court must employ, and the
cited cases predate Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)
and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Twombly and Iqbal require
that the complaint “raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. Plaintiff’s amended complaint meets the
federal standard, but it is the federal standard that applies.

26

dismissed. Doc. 26, ¶ 22.

Plaintiff also has conceded that he did

not present notice of his claims to the City in compliance with ALA.
CODE § 11-47-23, see Doc. 26, ¶ 22; and Alabama law deems suits
against agents of the city in their official capacities to be
“simply another way of suing the City.” Dickinson v. City of
Huntsville, 822 So. 2d 411, 415 (Ala. 2001); see also Wheeler v.
George, 39 So.3d 1061, 1085, 1088 (Ala. 2009).

The court finds

that to the extent plaintiff intended to make the claims in counts
eleven and twelve as against Roper in his official capacity,
plaintiff’s conceded failure to comply with § 11-47-23 also bars
those claims.

Accordingly, plaintiff’s removal of counts twelve

and thirteen of the original complaint in the amended complaint
also entails dismissal of counts eleven and twelve of the amended
complaint as against Roper in his official capacity.
A.

Respondeat Superior

In count eleven, plaintiff seeks to hold Roper liable in his
individual capacity for Trammell’s actions based on respondeat
superior. Respondeat superior rests on the theory that an employer
retains a

right

consequently,

of

control

remains

liable

over
for

his

employee’s

those

Timmons, 954 So. 2d 545, 549 (Ala. 2006).

actions.

actions
See

and,

Ware

v.

“To recover against a

defendant under the theory of respondeat superior, it is necessary
for

the

plaintiff

to

establish

27

the

status

of

employer

and

employee——master

and

servant.”

Id.

(quotation

omitted).

The

amended complaint, however, states that Trammell “was at all times
relevant to this complaint, a police employee of the City of
Birmingham Police Department,” not Roper personally. Doc. 35, ¶ 5
(emphasis added). Trammell’s answer “admits that he is an employee
of the Birmingham Police Department.” Doc. 36, ¶ 5.

The City also

admits that Trammell was an employee of the City. Doc. 19, ¶ 11.
Given that all parties agree that the City was Trammell’s
employer, the law of Alabama is that the City would be liable for
Trammell’s conduct under respondeat superior only to the extent
that the court found Trammell liable and not protected by stateagent immunity. See Borders v. City of Huntsville, 875 So. 2d 1168,
1183 (Ala. 2003); Howard v. City of Atmore, 887 So. 2d 201, 211
(Ala. 2003).

The City, not Roper in his individual capacity, is

the proper defendant in plaintiff’s respondeat superior claim.
Unfortunately for plaintiff, the time to present notice of such a
claim against the City has passed. See § 11–47–23.

Therefore, the

court will dismiss count eleven as against Roper in his individual
capacity.
B.

Negligent Failure to Train/ Supervise

In response to count twelve of the amended complaint, the
claim of negligent failure to train/ supervise, Roper asserts
state-agent immunity pursuant to ALA. CODE § 6-5-338.

28

Section

6-5-338 “extends state-agent immunity to peace officers performing
discretionary

functions

within

the

line

and

scope

of

their

law-enforcement duties.” Howard, 887 So. 2d at 203 (quotation marks
and quotation omitted).

Plaintiff does not contest that this

provision applies to Roper as Chief of Police because he “is
responsible for supervising BPD personnel.” Doc. 20, ¶ 12; Doc. 26,
¶ 7.

State agents are immune from personal civil liability “when

the conduct made the basis of the claim against the agent is based
upon

the

agent's

...

exercising

his

or

her

judgment

in

the

administration of a department or agency of government ...” Ex
parte Cranman, 792 So. 2d 392, 405 (Ala. 2000).

Roper’s duties

fall under this category of activities qualifying for state-agent
immunity. See Howard, 887 So. 2d at 203, 210.

Thus, Roper is

entitled to immunity unless plaintiff can show that Roper acted
“willfully, maliciously, fraudulently, in bad faith, beyond his or
her authority, or under a mistaken interpretation of the law.” See
Ex parte Estate of Reynolds, 946 So.2d 450, 452 (Ala. 2006).
Plaintiff contends that Roper is not entitled to state-agent
immunity because Roper acted willfully, maliciously, fraudulently,
in

bad

faith,

beyond

his

authority,

or

under

a

mistaken

interpretation of the law. See id.

Plaintiff claims that he has

made such a showing in two ways.11

First, plaintiff says that he

11

For count twelve, plaintiff explicitly relies on his arguments
from the first round of briefing, Doc. 41 at 7, n. 2, except to the
extent that he addresses this count in document 41. See Doc. 41 at 5-6,

29

“alleged that Roper has acted with ‘deliberate indifference’ in
failing to correct rampant and flagrant constitutional violations
by his officers.” Doc. 26, ¶ 24.

Although the amended complaint

does include such allegations, legal conclusions do not suffice as
replacements for factual allegations. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quotation omitted).
plaintiff

asserts as

evidence

the

facts

section

of

Second,
a recent

district court opinion, which included the plaintiff’s allegation
that Roper had acknowledged that BPD supervisors “need to do a
better job of reporting and documenting uses of force by police
officers.” Doc. 26, ¶ 24 (quoting Thompson v. City of Birmingham,
2:12-CV-00623-TMP, 2014 WL 1043631, at *12 (N.D. Ala. Mar. 14,
2014)).

The Thompson court’s factual summary and that plaintiff’s

allegation have no relevance to the present case; this case’s
plaintiff did not include Roper’s alleged statement in the amended
complaint, so it has no place in this court’s consideration.
Plaintiff obliquely addresses the dearth of facts to nullify
state-agent immunity by stating that “whether Roper’s failures to
train and supervise were willful, malicious, fraudulent, or in bad
faith ... are all particularly within the knowledge of the City,
Roper, and the BPD, and are not things to which Tolbert has ready
access pre-suit.” See Doc. 41 at 5-6.

While discovery may yield

helpful information, it is plaintiff’s burden to allege facts

n.1.

30

sufficient to state a claim at the pleading stage——including facts
showing

that

Roper

is

not

entitled

to

state-agent

immunity.

Plaintiff cannot “unlock the doors of discovery ... armed with
nothing more than conclusions.” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009).

The court concludes that plaintiff has not satisfied

this burden with the few facts presented.

Therefore, the court

will dismiss count twelve as against Roper in his individual
capacity based on state-agent immunity.
CONCLUSION
For the reasons detailed above, the court will dismiss counts
three and four of the amended complaint as against the City and
Roper in both capacities, counts one and two as against Trammell in
his official capacity, and counts eleven and twelve as against
Roper in both capacities.

An appropriate, separate order will be

entered.

DONE this 4th day of August, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

31