Glasscox v. Argo, City of et al

Filing 37

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 9/27/16. (SAC )

FILED
2016 Sep-27 PM 03:24
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

BOB GLASSCOX,
Plaintiff,
v.
CITY OF ARGO; OFFICER DAVID
RAMSAY MOSES, in his Individual
Capacity,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO:
2:15-cv-1487-KOB

MEMORANDUM OPINION
Plaintiff Bob Glasscox sued Argo Police Officer David Moses for using excessive force
against him during an arrest in violation of his constitutional rights and for assault and battery
under state law. Mr. Glasscox also sued the City of Argo under 42 U.S.C. § 1983, alleging that:
(1) Officer Moses's violation of his constitutional rights was a result of an Argo custom or policy;
(2) Argo's hiring of Officer Moses was negligent; (3) Argo negligently trained Officer Moses;
and (4) that Argo failed to develop an adequate policy concerning taser use. Argo moved to
dismiss Mr. Glasscox's complaint, claiming that Mr. Glasscox had failed to state a claim upon
which relief could be granted. (Doc. 21). For the reasons discussed, the court GRANTS IN
PART Argo's motion as to Mr. Glasscox's claim for punitive damages and DENIES IN PART
Argo's motion as to Mr. Glasscox's substantive claims.
I.

STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss attacks the legal sufficiency of the complaint.

1

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). Rule 8 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).
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 identified “two working principles” for the district court to use in
2

applying the facial plausibility standard. 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.
II.

STATEMENT OF THE FACTS
Mr. Glasscox asserts four counts against Argo in his complaint. In Count I, Mr. Glasscox

alleges that Argo had a custom of being deliberately indifferent to excessive force claims. In
Count IV, Mr. Glasscox alleges that Argo was negligent in its hiring of Officer Moses. In Count
V, Mr. Glasscox claims that Argo failed to properly train Officer Moses to use a taser and to
respond to medical emergencies. In Count VI, Mr. Glasscox asserts that Argo's failure to adopt
an appropriate taser policy constituted deliberate indifference to the constitutional rights of its
citizens.
As a basis for those claims, Mr. Glasscox alleges the following relevant facts in his
complaint. On July 24, 2014, Mr. Glasscox was driving on I-59 South. Officer Moses pulled Mr.
3

Glasscox over after a several-mile pursuit. Officer Moses ran to Mr. Glasscox's vehicle, opened
the door, and ordered him to exit. Mr. Glasscox did not comply at first because he was having a
diabetic episode and did not understand the situation. Officer Moses deployed his taser on Mr.
Glasscox. Mr. Glasscox remained in the vehicle. Officer Moses tased Mr. Glasscox three
additional times. At one point during the incident, Officer Moses had his taser in one hand and
his firearm in the other, both pointed at Mr. Glasscox.
Mr. Glasscox also alleges that Officer Moses was employed by Alabama police
departments in the past and was disciplined for exercising poor judgment and failing to follow
department policies. Specifically, Mr. Glasscox alleges that before being hired by Argo, Officer
Moses had been disciplined for using a shotgun in a crowd control situation and destroying
evidence.
Mr. Glasscox also alleges that a civil suit was filed against Officer Moses related to an
incident where he, while off-duty, pursued two college students from Tuscaloosa to Calera.
Moses arrested the two students, but no charges where filed against them. After reviewing
Officer Moses's file, the Tuscaloosa Police Department Disciplinary Board recommended that he
be terminated. Officer Moses's file included two informal counseling sessions, one formal
counseling session, and documentation of two other incidents. In the Board's view, “all of these
incidents show that Officer Moses has grossly poor judgment.” One document in the file noted
that Officer Moses was “showing a pattern of using bad judgment dealing with situations
involving moderate levels of stress levels and tactics.” Officer Moses involuntarily resigned from
the Tuscaloosa Police Department.
Mr. Glasscox claims Argo failed to contact the Tuscaloosa Police Department to inquire
4

about Officer Moses's employment there, or in the alternative, ignored the department's
disclosure. Further, Mr. Glasscox alleges that information concerning the civil suit against
Officer Moses was publicly available.
III.

DISCUSSION
A.

Underlying Violation of Mr. Glasscox's Constitutional Rights

Argo first argues that Mr. Glasscox's claims against it should be dismissed based on the
arguments contained in Officer Moses's motion for summary judgment. However, the court has
denied Moses's motion. See (Docs. 35 and 36). Therefore, Glasscox's claims against Argo cannot
be dismissed on the basis that Officer Moses did not commit a constitutional violation of Mr.
Glasscox's rights.
B.

Count I: Argo's Custom or Policy

Argo contends that Mr. Glasscox's complaint contains only “general and conclusory”
allegations about a policy or custom of Argo being deliberately indifferent to Fourth Amendment
rights. (Doc. 21-1 at 8). To state a claim under § 1983 against a municipality, a plaintiff must
allege facts that, if proven, would show: “(1) that his constitutional rights were violated; (2) 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. 1994) (citing City of Canton v. Harris, 489 U.S. 378, 389 (1989)).
In support of Mr. Glasscox's claim, he alleges that Argo “permitted, encouraged, and
ratified a pattern and practice of misconduct” by “fail[ing] to discipline or prosecute or in any
manner deal with known incidents of misconduct, including excessive force” and “refus[ing] to
investigate complaints of excessive force, and, instead, officially claimed such incidents were
5

justified and proper.” (Doc. 1 at ¶ 49).
This court has previously found that identical language “toe[s] the line” of what is
acceptable under Iqbal's pleading standards but does sufficiently place the defendant on notice of
the claim against it. See Jackson v. City of Homewood, No. 2:12-CV-4199-KOB, 2013 WL
2352430, at *5 (N.D. Ala. May 29, 2013). Of course, Argo is free to challenge the sufficiency of
Glasscox's evidence of its policies or customs on summary judgment. See Crutcher v. Vickers,
No. CV-10-S-01176-NE, 2012 WL 3860557, at *9 (N.D. Ala. Sept. 5, 2012) (“[T]he proper
procedural posture for challenging a police misconduct claim that alleges a policy or custom of
violations is a motion for summary judgment, not a motion to dismiss.”). Therefore, the court
DENIES Argo's motion to dismiss Count I of the complaint.
C.

Count IV: Negligent Hiring

Argo argues that Mr. Glasscox's complaint fails to plead Twombly-sufficient facts that
would show that it was on notice of Officer Moses's past conduct. To state a claim, Mr. Glasscox
must allege facts that, if proven, would show that “a full review of [Officer Moses's] record
reveals that [Argo] should have concluded that [Officer Moses's] use of excessive force would be
a plainly obvious consequence of the hiring decision.” Bd. of Cty. Comm'rs of Bryan Cty., Okl. v.
Brown, 520 U.S. 397, 412–13 (1997).
Mr. Glasscox has alleged that Officer Moses has a history of violating the law and
exercising poor judgment. Further, Mr. Glasscox alleges that Argo failed to inquire–or inquired
and disregarded what it learned–into Officer Moses's conduct at the Tuscaloosa Police
Department. Thus, Mr. Glasscox has alleged that Argo had (at least) constructive notice of
Officer Moses's misconduct in Tuscaloosa. Though not required to do so, Mr. Glasscox has even
6

provided detailed, specific allegations about particular incidents and particular documentation in
Officer Moses's personnel file. Argo had notice of what Mr. Glasscox alleges it should have
known about Officer Moses had it conducted an investigation into his past employment, or if
such an investigation was conducted, what it should have revealed. These facts are sufficient to
show, if proven, that an obvious consequence of hiring Officer Moses would be that he would
repeat his prior behavior. Therefore, the court DENIES Argo's motion to dismiss Count IV of the
complaint.
D.

Count V: Negligent Training

Argo asserts that Mr. Glasscox's complaint “merely states, in an impermissibly
conclusory fashion, that Argo failed to supervise/train its officers.” (Doc 21-1 at 16). Inadequate
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, Ohio v. Harris, 489 U.S. 378, 388 (1989). To establish deliberate indifference, a
plaintiff must show a pattern of improper training and that the municipality was aware of its
training program's deficiencies. Skop v. City of Atlanta, 485 F.3d 1130, 1145 (11th Cir. 2007).
Further, Argo argues that Mr. Glasscox has not pled Twombly-sufficient facts to show
that Argo's policies were a “moving force” behind the violation of his rights. For a policy or
custom to be a moving force, the Eleventh Circuit requires that “[t]he municipality must be at
fault in some sense for establishing or maintaining the policy which causes the injurious result . .
.” See Owens v. City of Atlanta, 780 F.2d 1564, 1567 (11th Cir. 1986) (citing Fundiller v. City of
Cooper City, 777 F.2d 1436, 1442 (11th Cir. 1985)).
Contrary to Argo's assertions, these allegations are not impermissibly conclusory
7

statements that Argo failed to train Officer Moses. Rather, Mr. Glasscox alleges the specific
types of training the city failed to provide. Cf. Gray v. City of Roswell, 486 Fed. App'x 798,
801–02 (11th Cir. 2012) (dismissing a claim when it failed to plead how a city's training was
deficient).
Mr. Glasscox alleges that Argo's training was deficient in two ways. First, Mr. Glasscox
contends that Argo failed to train Officer Moses regarding the proper procedures for using the
taser. And given the allegations about Officer Moses's employment record, Argo was on notice of
its need to train and supervise him. Second, Mr. Glasscox alleges that Argo failed to train and
educate officers to recognize and respond to medical emergencies an individual might experience
while in Argo's custody. Mr. Glasscox alleges this failure was a pattern of Argo and not limited
to a single, isolated incident.
Mr. Glasscox has alleged sufficient facts to support an inference that Argo's failure to
train its officers was a moving force behind the violation of Mr. Glasscox's constitutional rights.
To be a moving force, the policy, custom, or practice must have a causal relationship with the
injury suffered such that the municipality maybe at fault for the policy. See Owens, 780 F.2d at
1567. Here, a reasonable inference suggests that if Argo had provided either sort of training, Mr.
Glasscox's injuries could have been avoided. Such an inference is sufficient for a claim to survive
a motion to dismiss.
Mr. Glasscox's allegations are not a recitation of the elements of the cause of action or
mere statements that Argo harmed him. As such, they sufficiently place Argo of the allegations
against it. Mr. Glasscox's inadequate training claim is plausible on its face and states a claim
upon which relief can be granted. Therefore, the court DENIES Argo's motion to dismiss Count

8

V of the complaint.
E.

Count VI: Inadequate Taser Policy

Mr. Glasscox alleges that Argo failed to adopt appropriate taser policies, and that such a
policy amounted to deliberate indifference. Mr. Glasscox alleges that Argo's taser policies were
inadequate to instruct officers in the proper use of force. See (Doc. 1 at ¶¶ 81–83). Again, these
allegations border on what is acceptable under Iqbal and Twombly. However, these allegations do
have sufficient detail to place Argo on notice of the claim against it. See Erickson v. Pardus, 551
U.S. 89, 93 (2007) (“Specific facts are not necessary.”). Mr. Glasscox has identified the specific
faulty policy and alleged how the policy is deficient. Further, a reasonable inference suggests that
if Argo's policy would have been adequate, Mr. Glasscox's rights would not have been violated.
Therefore, the court DENIES Argo's motion to dismiss Count VI of the complaint.
F.

Punitive Damages

Argue also contends it is immune from Mr. Glasscox's demand for punitive damages.
Generally, punitive damages are not allowed against a municipality unless expressly permitted by
statute. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259–61 (1981). Section 1983
does not permit a plaintiff to seek punitive damages from a municipality. See Walters v. City of
Atlanta, 803 F.2d 1135, 1148 (11th Cir. 1986). Therefore, the court GRANTS IN PART Argo's
motion to dismiss Mr. Glasscox's claims to the extent they seek punitive damages from Argo.
IV.

CONCLUSION
The court DENIES Argo's Motion to Dismiss the individual counts of Mr. Glasscox's

complaint but GRANTS IN PART the motion to the extent that such claims seek punitive
damages from Argo.
9

The court previously denied Mr. Glasscox's motion to amend his complaint because it
wanted to first address whether he had stated plausible claims and whether Officer Moses was
entitled to qualified immunity. See (Doc. 30). Because these issues have now been addressed,
Mr. Glasscox may file a second motion for leave to amend his complaint if he deems it necessary

DONE this the 27th day of September, 2016.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

10