Cole et al v. Tarrant, City of et al

Filing 29

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 20 22 25 MOTIONS to Dismiss as set out herein. Further, the remaining defenses raised in Defendants' Motions are TERMED as MOOT. Finally, the deadline for Plaintiffs to replead their Complaint is on or before December 15, 2014. Signed by Judge Virginia Emerson Hopkins on 11/17/2014. (JLC)

FILED
2014 Nov-17 PM 12:17
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ARTELETTE COLE and
ANTHONY BROWN,
Plaintiffs,
v.
CITY OF TARRANT, ANGELA
MOON, LOXCIL TUCK, DENNIS
RENO, LAURA HORTON, BETTY
MIDDLEBROOKS, CATHY
ANDERSON, DEBORAH
MATHEWS, and JOHN T.
BRYANT,
Defendants.

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MEMORANDUM OPINION AND ORDER
I.

Introduction and Procedural History
This case was originated by Plaintiffs Artelette Cole and Anthony D. Brown

in Jefferson County Circuit Court on July 31, 2014, against Defendants City of
Tarrant (the “COT”), Angela Moon, Loxcil Tuck, Dennis Reno, Laura Horton, Betty
Middlebrooks, Cathy Anderson, Deborah Mathews, and John T. Bryant (Doc. 1-3 at
3)1 and was removed to this court by Defendants on September 10, 2014. (Doc. 1 at

1

All page references to Doc. 1-3 correspond with the court’s CM/ECF numbering system.

1). On October 3, 2014, Plaintiffs filed a first amended complaint. (Doc. 16). As
described in this amended pleading, Plaintiffs’ lawsuit arises out of each one’s arrest,
which they contend occurred because of an alleged inaccurate and improper
accounting of their payments of fees and fines attributable to prior criminal charges
and/or traffic citations that were filed against them in the COT. (See generally Doc.
16).
The case caption of Plaintiffs’ amended complaint suggests that all persons
named as defendants in this action have been sued in their individual capacity (i.e.,
using “an individual” after each person’s name), and makes no reference to their
official status.2 However, in describing the individual defendants as parties within the
body of their complaint, Plaintiffs refer to these parties’ official roles and do not
indicate in which capacity or capacities each has been sued. (See Doc. 16 at 2 ¶¶ 7-10
(identifying Angela Moon as a municipal court magistrate for COT, Loxcil Tuck as
the mayor of COT, Dennis Reno as the chief of police for COT, and the remaining
five individuals as city council members of COT)).
Plaintiffs’ amended pleading contains four counts. Count One asserts violations

2

A § 1983 claim against a person in her official capacity seeks to impose liability on the
entity which she represents, and not on her personally. See, e.g., Welch v. Laney, 57 F.3d 1004, 1008
(11th Cir. 1995) (“Welch’s action against the Sheriff and Chief Deputy Sheriff in their official
capacities imposes liability on the entity they represent, and not on them as individuals.” (citing
Brandon v. Holt, 469 U.S. 464, 471-72, 105 S. Ct. 873, 877-78, 83 L. Ed. 2d 878 (1985))).
2

of the Fourth Amendment to the United States Constitution against Defendants COT,
Tuck, Reno, and the City Council Members. (Doc. 16 at 9-11 ¶¶ 78-86). Count Two
claims violations of the Fifth Amendment to the United States Constitution against
Defendants COT, Tuck, Reno, and the City Council Members. (Id. at 11-12 ¶¶ 8793).
Count Three is for malicious prosecution under Alabama law against all
defendants. (Id. at 12-13 ¶¶ 94-99). Finally, Count Four is a request for equitable
relief brought pursuant to § 1983 against all defendants. (Id. at 13-15 ¶¶ 100-08).
Pending before the court are (1) the City of Tarrant’s Motion To Dismiss First
Amended Complaint (Doc. 20) (“COT’s Motion”); (2) Defendants Cathy Anderson,
John T. Bryant, Laura Horton, Deborah Mathews, Betty Middlebrooks, Loxcil Tuck’s
Motion To Dismiss First Amended Complaint (Doc. 22) (the “Individuals’ Collective
Motion”); and (3) Motion of Defendant Dennis Reno To Dismiss the Plaintiff’s First
Amended Complaint (“Chief Reno’s Motion”), all of which were filed on October 24,
2014, and which are supported by separate briefs filed on this same date. (Docs. 21,
23, 26).
Plaintiffs have failed to file any opposition, which deadline ran on November
7, 2014, under Appendix III to the court’s uniform initial order (Doc. 3) entered on
September 3, 2014. (See id. at 23 ¶ B.2 (The opponent’s responsive brief shall be
3

filed no later than fourteen (14) calendar days thereafter.”) (emphasis in original)).
For the reasons explained below, COT’s Motion, the Individuals’ Collective
Motion, and Chief Reno’s Motion are GRANTED IN PART, DENIED IN PART,
and otherwise TERMED as MOOT.
II.

Standard(s)
A.

Rule 12(b)(1)

Unlike state courts, federal tribunals are bodies of limited jurisdiction, meaning
that the grounds for the court’s jurisdiction over the claims asserted by the plaintiff
must be present at the time the complaint is filed and must be obvious on the face of
the complaint. Fed. R. Civ. P. 8(a); 28 U.S.C. § 1330, et seq. The law is clear that
Plaintiffs, the parties seeking to invoke federal jurisdiction in this case, have the
burden to demonstrate that the court has subject matter jurisdiction. See McNutt v.
General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed.
1135 (1936) (“They are conditions which must be met by the party who seeks the
exercise of jurisdiction in his favor . . . . [and a]s he is seeking relief subject to this
supervision, it follows that he must carry throughout the litigation the burden of
showing that he is properly in court.”); see also McCormick v. Aderholt, 293 F.3d
1254, 1257 (11th Cir. 2002) (per curiam) (“[T]he party invoking the court’s
jurisdiction bears the burden of proving, by a preponderance of the evidence, facts
4

supporting the existence of federal jurisdiction.”).
Further, lack of subject matter jurisdiction cannot be waived or expanded by
judicial interpretation, and a jurisdictional deficiency can be raised at any time by
either the parties or the court. See, e.g., Am. Fire & Cas. Co. v. Finn, 341 U.S. 6,
17-18, 71 S. Ct. 534, 542, 95 L. Ed. 702 (1951) (“The jurisdiction of the federal
courts is carefully guarded against expansion by judicial interpretation or by prior
action or consent of the parties.”); Sosna v. Iowa, 419 U.S. 393, 398, 95 S. Ct. 553,
557, 42 L. Ed. 2d 532 (1975) (“While the parties may be permitted to waive
nonjurisdictional defects, they may not by stipulation invoke the judicial power of the
United States in litigation which does not present an actual ‘case or controversy,’ and
. . . we feel obliged to address the question of mootness before reaching the merits of
appellant’s claim.”) (citation omitted).
B.

Rule 12(b)(6)

A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed.
R. Civ. P. 12(b)(6) (“[A] party may assert the following defenses by motion: (6)
failure to state a claim upon which relief can be granted[.]”). 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, 78 S. Ct. 99,
5

103, 2 L. Ed. 2d 80 (1957) (footnote omitted) (quoting Fed. R. Civ. P. 8(a)(2)),
abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955,
1965, 167 L. Ed. 2d 929 (2007); see also Fed. R. Civ. P. 8(a) (setting forth general
pleading requirements for a complaint including providing “a short and plain
statement of the claim showing that the pleader is entitled to relief”).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47, 78 S.
Ct. at 103). However, at the same time, “it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). “[O]nce a claim has been
stated adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550 U.S. at 563, 127 S. Ct. at 1969.
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950. “While legal
conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Id. “When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to
6

an entitlement to relief.” Id. (emphasis added). “Under Twombly’s construction of
Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge[] [any] claims’ . . . ‘across the line
from conceivable to plausible.’ Ibid.” Iqbal, 556 U.S. at 680, 129 S. Ct. at 1950-51.
A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at
556, 127 S. Ct. at 1965).
C.

Qualified Immunity

All individual defendants assert that qualified immunity bars Plaintiffs’ § 1983
claims brought against them in their personal capacities. “The defense of qualified
immunity completely protects government officials performing discretionary
functions from suit in their individual capacities unless their conduct violates ‘clearly
established statutory or constitutional rights of which a reasonable person would have
known.’” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003) (internal quotation
marks omitted) (quoting Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003)).
“To receive qualified immunity, a government official first must prove that he was
acting within his discretionary authority.” Id.
7

This is a two-part test. Under the first step, “the defendant must [prove that he
or she was] performing a function that, but for the alleged constitutional infirmity,
would have fallen within his legitimate job description.” Holloman ex rel. Holloman
v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). Next, the defendant must prove
that he or she was “executing that job-related function.” Id. at 1267. “Once a
defendant establishes that he was acting within his discretionary authority, the burden
shifts to the plaintiff to show that the defendant is not entitled to qualified immunity.”
Cottone, 326 F.3d at 1358.
Until 2009, the Supreme Court required a two-part inquiry to determine the
applicability of qualified immunity, as established by Saucier v. Katz, 533 U.S. 194,
201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). Under the Saucier test, “[t]he
threshold inquiry a court must undertake in a qualified immunity analysis is whether
[the] plaintiff’s allegations, if true, establish a constitutional violation.” Hope v.
Pelzer, 536 U.S. 730, 736, 122 S. Ct. 2508, 2513,153 L. Ed. 2d 666 (2002).
If, under the plaintiff’s allegations, the defendants would have violated a
constitutional right, “the next, sequential step is to ask whether the right was clearly
established.” Cottone, 326 F.3d at 1358 (quoting Saucier, 533 U.S. at 201, 121 S. Ct.
at 2156). The “clearly established” requirement is designed to assure that officers
have fair notice of the conduct which is proscribed. Hope, 536 U.S. at 739, 122 S. Ct.
8

at 2515. This second inquiry ensures “that before they are subjected to suit, officers
are on notice their conduct is unlawful.” Saucier, 533 U.S. at 206, 121 S. Ct. at 2158.
The “unlawfulness must be apparent” under preexisting law.3 Anderson v.
Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987) (citing
Malley v. Briggs, 475 U.S. 335, 344-45, 106 S. Ct. 1092, 1097-98, 89 L. Ed. 2d 271
(1986)). Therefore, a temporal requirement exists related to this inquiry. More
particularly, a plaintiff must show that a reasonable public officer would not have
believed her actions to be lawful in light of law that was clearly established at the
time of the purported violation. See Anderson, 483 U.S. at 639,107 S. Ct. at 3038
(“[W]hether an official protected by qualified immunity may be held personally liable
for an allegedly unlawful official action generally turns on the ‘objective legal
reasonableness’ of the action[,] assessed in light of the legal rules that were ‘clearly
established’ at the time it was taken[.]”) (emphasis added) (citation omitted);
Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 599, 160 L. Ed. 2d 583
(2004) (“If the law at that time did not clearly establish that the officer’s conduct
would violate the Constitution, the officer should not be subject to liability or, indeed,

3

Only Supreme Court, Eleventh Circuit, and Alabama Supreme Court cases can “clearly
establish” the law in this litigation. See Thomas v. Roberts, 323 F.3d 950, 953 (11th Cir. 2003) (“In
this circuit, rights are ‘clearly established’ by decisions of the Supreme Court, this court, or the
highest court of the state in which the case arose.” (citing Hamilton v. Cannon, 80 F.3d 1525, 1532
n.7 (11th Cir. 1996))).
9

even the burdens of litigation.”) (emphasis added); Brosseau, 543 U.S. at 198, 125
S. Ct. at 599 (“Because the focus is on whether the officer had fair notice that her
conduct was unlawful, reasonableness is judged against the backdrop of the law at the
time of the conduct.”) (emphasis added); see also Johnson v. Clifton, 74 F.3d 1087,
1093 (11th Cir. 1996) (“We know of no [preexisting] case which might have clearly
told Clifton that he could not take the disciplinary action indicated by an investigation
which was initiated before he even knew about the allegedly protected speech, and
in circumstances where the public concern implication was doubtful.”).
However, the Saucier framework was made non-mandatory by the Supreme
Court in Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818, 172 L. Ed. 2d
565 (2009), in which the Court concluded that, “while the sequence set forth [in
Saucier] is often appropriate, it should no longer be regarded as mandatory.” Thus,
“judges of the district courts and the courts of appeals should be permitted to exercise
their sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case
at hand.” Id.
Despite the Supreme Court’s modification of Saucier’s analytical process, the
substantive analysis remains unchanged; an officer is entitled to qualified immunity
protection as long as he “could have believed” his conduct was lawful. Hunter v.
10

Bryan, 502 U.S. 224, 227, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589 (1991).Therefore,
to deny immunity, a plaintiff must affirmatively demonstrate that “no reasonable
competent officer would have” acted as the public official did. Malley v. Briggs, 475
U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986).
In determining whether the plaintiff meets this burden in the context of a
motion to dismiss, this court is guided by the Eleventh Circuit’s holding in Randall
v. Scott, 610 F.3d 701 (11th Cir. 2010), which clarifies that the so-called heightened
pleading rule no longer applies to civil rights cases in which a qualified immunity
defense is asserted:
While Swann, GJR, and Danley reaffirm application of a
heightened pleading standard for § 1983 cases involving defendants able
to assert qualified immunity, we agree with Randall that those cases
were effectively overturned by the Iqbal court. Pleadings for § 1983
cases involving defendants who are able to assert qualified immunity as
a defense shall now be held to comply with the standards described in
Iqbal. A district court considering a motion to dismiss shall begin by
identifying conclusory allegations that are not entitled to an assumption
of truth-legal conclusions must be supported by factual allegations. The
district court should assume, on a case-by-case basis, that well pleaded
factual allegations are true, and then determine whether they plausibly
give rise to an entitlement to relief. . . .
After Iqbal it is clear that there is no “heightened pleading
standard” as it relates to cases governed by Rule 8(a)(2), including civil
rights complaints. All that remains is the Rule 9 heightened pleading
standard.
Randall, 610 F.3d at 709-10 (emphasis added) (footnote omitted).
11

D.

Plaintiffs’ Failure To Oppose

Plaintiffs’ failure to file any opposition does not automatically mean that all
three motions are due to be granted. As explained by Judge Steele in Branch Banking
and Trust Co. v. Howard, No. 12–0175–WS–N, 2013 WL 172903, *1 (S.D. Ala. Jan.
16, 2013):
As noted, Churchill and Howard elected not to be heard in
response to BB & T’s Amended Motion to Dismiss. Notwithstanding
that omission, BB & T (as Rule 12(b)(6) movant) bears the initial
burden of demonstrating that it is entitled to dismissal of the
counterclaims. Churchill’s and Howard’s lack of response to the Rule
12(b)(6) Motion does not trigger the kneejerk granting of such Motion
on an abandonment theory. See Gailes v. Marengo County Sheriff’s
Dep’t, 2013 WL 81227, *5 (S.D. Ala. Jan. 4, 2013) (“the Court will not
treat a claim as abandoned merely because the plaintiff has not defended
it in opposition to a motion to dismiss”). Rather, it remains BB & T’s
burden as movant to establish its entitlement to relief under Rule
12(b)(6). In light of these circumstances, the Court scrutinizes BB & T’s
Motion to Dismiss in accordance with the following legal standard: “the
Court will review the merits of the [movant]’s position and, if it is
clearly incorrect or inadequate to satisfy the [movant]’s initial burden,
will deny the motion despite the [nonmovant]’s failure to respond. If,
however, the [movant]’s presentation is adequate to satisfy its initial
burden, the Court will not deny the motion based on arguments the
[nonmovant] could have made but by silence elected not to raise.” Id.
Branch Banking, 2013 WL 172903, *1 (footnotes omitted).
III.

Analysis
General Rulings
12

The court has studied Defendants’ motions and concludes that many of the
arguments presented are well-taken, including specifically those premised upon
Plaintiffs’ failure to plead their claims against each defendant in a plausible and
unambiguous manner. In particular, the overall vagueness of Plaintiffs’ pleading,
including a lack of clarity about which claims are asserted against which individual
defendant(s), personally, officially, or both, makes an evaluation of qualified
immunity and other asserted defenses impractical.
The court also finds the shotgun characteristics of Plaintiffs’ first amended
complaint to be unacceptable and determines that an order of repleader is appropriate.
See, e.g., Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 & n.54 (11th
Cir. 2008) (“The complaint is a model ‘shotgun’ pleading of the sort this court has
been roundly, repeatedly, and consistently condemning for years, long before this
lawsuit was filed.”);4 Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp.,
4

Davis footnote 54 gives numerous examples of Eleventh Circuit anti-shotgun references
and states in full:
See, e.g., United States ex el. Atkins v. McInteer, 470 F.3d 1350, 1354 n.6
(11th Cir. 2006); M.T.V. v. DeKalb County Sch. Dist., 446 F.3d 1153, 1156 n.1 (11th
Cir. 2006); Ambrosia Coal and Constr. Co. v. Morales, 368 F.3d 1320, 1330 n.22
(11th Cir. 2004); Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp.,
305 F.3d 1293, 1296 nn.9-10 (11th Cir. 2002); Byrne v. Nezhat, 261 F.3d 1075,
1128–34 (11th Cir. 2001); Magluta v. Samples, 256 F.3d 1282 (11th Cir. 2001);
BMC Indus., Inc. v. Barth Indus., Inc., 160 F.3d 1322, 1326-27 n.6 (11th Cir. 1998);
GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1368 (11th Cir. 1998);
Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997); Ibrahimi v. City of
Huntsville Bd. of Educ., 114 F.3d 162 passim (11th Cir. 1997); Anderson v. Dist. Bd.
13

305 F.3d 1293, 1295 (11th Cir. 2002) (“The typical shotgun complaint contains
several counts, each one incorporating by reference the allegations of its
predecessors, leading to a situation where most of the counts (i.e., all but the first)
contain irrelevant factual allegations and legal conclusions.”).
In repleading, Plaintiffs must study the Davis decision and the numerous cases
cited therein and draft a much more definite and comprehendible pleading. The
claims of each plaintiff against each defendant must be set forth in separately
numbered counts and, with respect to each individual defendant and each separate
claim, clarify whether Plaintiffs are suing such person individually only, officially
only, or in both capacities. Additionally, Plaintiffs should refrain from incorporating
allegations by reference, endeavor to streamline their claims and allegations, and
reduce unnecessary duplication of their contentions. Further, Plaintiffs’ restated
pleading must include only plausibly stated claims and avoid lumping any causes of

of Trustees of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366-67 (11th Cir. 1996); Beckwith
v. City of Daytona Beach Shores, 58 F.3d 1554, 1567 (11th Cir. 1995); Cesnik v.
Edgewood Baptist Church, 88 F.3d 902, 905 (11th Cir. 1996); Oladeinde v. City of
Birmingham, 963 F.2d 1481, 1483-84 (11th Cir. 1992); Pelletier v. Zweifel, 921 F.2d
1465, 1518 (11th Cir. 1991); T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520,
1543-44 n.14 (11th Cir. 1986) (Tjoflat, J., dissenting). This list is just a teaser—since
1985 we have explicitly condemned shotgun pleadings upward of fifty times.
Davis, 516 F.3d at 979 n.54.
14

action together.5
For example, as it pertains to Plaintiffs’ enumerated counts, Plaintiffs have only
superficially alleged that Defendants have violated federal constitutional and state
law without either breaking down each claim into its requisite elements or, much less,
connecting those elements to facts, which Plaintiffs allege to plausibly support why
that defendant or those defendants are liable to them under that specific claim. Such
a state of disorganization not only violates Twombly and Iqbal, but also, if permitted
to continue, constitutes an impediment to this court’s and the parties’ ability to justly
deal with other stages of this case (assuming that, upon repleader, a cognizable claim
ultimately remains), including discovery, summary judgment, and, if necessary, trial.
Additionally, in the absence of requiring a clearer pleading from Plaintiffs, the
Eleventh Circuit may deem the record too ambiguous for it to decide the viability of
a qualified immunity defense (or other issues) on appeal. Cf. Magluta v. Samples, 256
F.3d 1282, 1284 (11th Cir. 2001) (“We are unwilling to address and decide serious
constitutional issues on the basis of this [shotgun] complaint.”); id. (“In the past when
5

By way of further illustration, while Plaintiffs do not set forth any separate counts for
conspiracy or the tort of outrage, they confusingly incorporate allegations of such misconduct into
various portions of their complaint. (See, e.g., Doc. 16 at 3 ¶ 23 (“conspired to allow defendant
Moon to quietly retire from her position”); id. at 8 ¶ 70 (“Defendants conspired together to undertake
this course of conduct believing that if they acted in a unified manner . . . .”); id. at 8-9 ¶¶ 72-76
(alleging outrageous conduct on the part of Defendants); id. at 11 ¶ 90 (“The conduct of defendants
. . . was so outrageous in character and so extreme in degree as to go beyond all possible bounds of
decency . . . .”)).
15

faced with complaints like this one, we have vacated judgments and remanded with
instructions that the district court require plaintiffs to replead their claims.”).
Count Specific Dismissals
While the court is giving Plaintiffs the opportunity to replead their complaint,
such repleader shall not include Counts Two and Four. Concerning Count Two,
Defendants are correct that Plaintiffs have not and cannot plausibly state a violation
of the Fifth Amendment against them as such provision “only protects against federal
government action and does not apply to municipalities” or municipal officials. (Doc.
26 at 7); see also Public Utilities Commission of District of Columbia v. Pollak, 343
U.S. 451, 461, 72 S. Ct. 813, 820, 96 L. Ed. 1068 (1952) (clarifying that Fifth
Amendment “restrict[s] only the Federal Government and not private persons.” (citing
Corrigan v. Buckley, 271 U.S. 323, 330, 46 S. Ct. 521, 523, 70 L. Ed. 969 (1926)));
Riley v. Camp, 130 F.3d 958, 972 n.19 (11th Cir. 1997) (“The Fifth Amendment
obviously does not apply here-the acts complained of were committed by state rather
than federal officials.”)). Accordingly, the Fifth Amendment portion of each motion
is GRANTED, and Count Two of Plaintiffs’ First Amended Complaint is HEREBY
DISMISSED WITH PREJUDICE.
Count Four of Plaintiffs’ amended complaint is due to be dismissed for lack of
subject matter jurisdiction. More specifically, because there is no indication that
16

either plaintiff is still subject to further arrest for his or her failure to pay a fine or fee,
both of them lack standing to pursue equitable or prospective injunctive relief against
Defendants on behalf of themselves or other persons. Certainly, Plaintiffs have not
alleged that they have “a real and immediate—as opposed to a merely conjectural or
hypothetical—threat of future injury.” Wooden v. Board of Regents of University
System of Georgia, 247 F.3d 1262, 1284 (11th Cir. 2001) (emphasis in original)
(citing City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660, 1665, 75 L.
Ed. 2d 675(1983)). Accordingly, the jurisdictional portion of each motion is
GRANTED, and Count Four of Plaintiffs’ First Amended Complaint is HEREBY
DISMISSED WITHOUT PREJUDICE.
IV.

Conclusion
Therefore, COT’s Motion, the Individuals’ Collective Motion, and Chief

Reno’s Motion are GRANTED IN PART, but such dismissal is subject to Plaintiffs’
right to replead their claims (with the exception of any purportedly arising under
Counts Two and Four) in a plausible manner that adequately addresses all of
Defendants’ arguments as well as the court’s specific concerns as stated herein.
COT’s Motion, the Individuals’ Collective Motion, and Chief Reno’s Motion are
DENIED to the extent that they seek a dismissal of this entire case with prejudice.
Further, the remaining defenses raised in Defendants’ motions are TERMED as
17

MOOT.6
Plaintiffs are HEREBY CAUTIONED that their failure to replead in a concise
and meaningful manner may result in the dismissal of their entire case with or without
prejudice. Finally, the deadline for Plaintiffs to replead their complaint is on or
before December 15, 2014.
DONE and ORDERED this the 17th day of November, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

6

Defendants have raised several defenses which the court has chosen not to address in this
memorandum opinion and order. If, after repleader, any defendant still believes in good faith that
a pleadings stage dismissal based upon qualified immunity or some other defense remains
appropriate, then such defendant(s) may file a subsequent motion to dismiss.
18