Southall et al v. Birmingham Jefferson Convention Center et al

Filing 52

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 9/19/2017. (PSM)

FILED
2017 Sep-19 AM 09:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MERCUTIO TERRELL
SOUTHALL, SR., et al.,
Plaintiffs,
v.
BIRMINGHAM JEFFERSON
CONVENTION CENTER
AUTHORITY, et al.,
=
Defendants.

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2:16-cv-01687-LSC

MEMORANDUM OF OPINION
I. Introduction
Before the Court are Motions to Dismiss, filed by the three defendants,
Birmingham Jefferson Civic Center Authority (“BJCCA”) (doc. 27), Donald J.
Trump for President Inc. (“the Trump Campaign”) (doc. 39), and City of
Birmingham (“the City”) (doc. 43). The issues raised in Defendants’ Motions have
been fully briefed by all parties and are now ripe for decision. For the reasons
stated below, all Motions to Dismiss are due to be GRANTED.
II. Background
A. Procedural History

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Plaintiffs Mercutio Terrell Southall, Sr. (“Southall”), and Carlos Montez
Chaverst, Jr. (“Chaverst”) brought this action alleging deprivation of constitutional
rights under 42 U.S.C. § 1983; state law premises liability and breach of contract
offenses; and violations of Alabama Code § 11-47-190. Plaintiffs filed this action
against Defendants on October 17, 2016 (doc. 1).

Plaintiffs filed their First

Amended Complaint on November 22, 2016 (doc. 9). They then submitted a
Second Amended Complaint on December 22, 2016 (doc. 23). On January 11,
2017, Defendant BJCCA filed its Motion to Dismiss (doc. 27).

The Trump

Campaign filed a Motion to Dismiss on March 6, 2017 (doc. 39). The City of
Birmingham filed its Motion to Dismiss (doc. 43) on March 17, 2017.
B. Facts 1
In November 2015, Southall and Chaverst obtained free tickets from an
online vendor to attend the Donald J. Trump for President Campaign rally held at
the Birmingham Jefferson Convention Center (“BJCC”). Prior to attending the
rally, on November 18, 2015, Chaverst also obtained a municipal permit for

1

At the motion to dismiss stage, the Court must accept the plaintiff’s version of the facts as true,
and construe “the reasonable inferences therefrom . . . in the light most favorable to the
plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir. 1999) (citing
Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998)). The following facts
are, therefore, taken from Southall and Chaverst’s allegations contained in their Second
Amended Complaint (doc. 23), and the Court makes no ruling on their veracity.

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“Public Demonstration of Public Right of Way” for the purpose of protesting the
rally.
On November 21, 2015, Southall and Chaverst attended the Campaign Rally
at the BJCC. Before the event began, Southall entered the building security area,
just outside main BJCC auditorium, with a third party. As Southall and the third
party proceeded to enter the BJCC auditorium, they noticed several Birmingham
Police Officers who appeared to recognize them.

Around the time President

Trump walked onto the stage, Chaverst entered the BJCC, which by that time was
filled with nearly 2,000 attendees, and met up with Southall and the third party.
Chaverst then raised his cellular phone to record a video of the event. While his
phone was raised, as part of the protest effort, Chaverst stated, “we’re at the
Donald Trump rally, here in Birmingham, Alabama, and we want to inform Donald
Trump he’s not welcome here. We need to dump the Trump.” (Doc. 23 at 15 ¶44.)
At that time, an unidentified man slapped the cellular phone out of Chaverst’s
hand.

There was a verbal exchange; then Southall intervened and ended the

scuffle.
Southall then guided Chaverst and the third party through the crowd. The
crowd began to become aggressive and yelled racial slurs and other obscenities.
Chaverst and Southall were separated by the pushing and kicking of the crowd. An
attendee of the rally blocked their paths.

Pushing ensued and Southall was

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knocked to the ground. He was kicked, choked, punched, and scratched while
racial slurs were being yelled at him by unidentified members of the crowd. Police
arrived, attempted to stop the incident and guided Chaverst and Southall from the
rally. During the police escort from the rally, now President Trump shouted, “Get
him the hell out of here,” as well as other unspecified statements. (Doc. 23 at 19 ¶
60.)
III. Standard
All three Defendants, BJCCA, the City, and the Trump Campaign, move to
dismiss under Federal Rule Civil Procedure 12(b)(6) for failure to state a claim.
To survive a 12(b)(6) motion to dismiss, a plaintiff must generally satisfy the
pleading requirements in Fed. R. Civ. P. 8. Rule 8 requires a pleading to contain
“a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). “Rule 8 marks a notable and generous departure
from the hyper-technical, code-pleading regime of a prior era, but it does not
unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678–679 (2009). Instead, “[t]o
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim for relief that is plausible on its face.” Id. at 678
(internal quotations omitted). Iqbal establishes a two-step process for evaluating a
complaint. First, the Court must “begin by identifying pleadings that, because they
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are no more than conclusions, are not entitled to the assumption of truth.” Id. at
679. Second, “[w]hen there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.” Id. Factual allegations in a complaint need not be detailed,
but they “must be enough to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In reviewing the plaintiff’s
complaint, the Court must “draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679.
A party need not specifically plead each element in his or her cause of
action, but the pleading must contain “enough information regarding the material
elements of a cause of action to support recovery under some viable legal theory.”
Am. Fed’n of Labor & Cong. of Indus. Orgs. v. City of Miami, Fla., 637 F.3d 1178,
1186 (11th Cir. 2011). Ultimately, the Court must be able to draw a reasonable
inference from the facts that the other party is liable. Reese v. Ellis, Painter,
Ratterree & Adams, LLP, 678 F.3d 1211, 1215 (11th Cir. 2012). Regardless, the
Court must construe pleadings broadly and resolve inferences in the nonmoving
party’s favor. Levine v. World Fin. Network Nat’l Bank, 437 F.3d 1118, 1120
(11th Cir. 2006).
IV. Discussion
A. Count One : Negligence and Wantonness/Premises Liability against
the BJCCA and Trump Campaign
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In Alabama, “[i]t is well settled that absent a special relationship or special
circumstances, a person has no duty to protect another from criminal acts of a third
person”—such as the assaults at issue in this case. Baptist Mem. Hosp. v. Gosa,
686 So. 2d 1147, 1149 (Ala. 1996) (emphasis added); see Moye v. A.G. Gaston
Motels, Inc., 499 So. 2d 1368, 1370 (Ala. 1986); see also Carroll v. Shoney’s, Inc.,
775 So. 2d 753, 756 (Ala. 2000). Accordingly, in order to state a cause of action
on this claim, Southall and Chaverst must establish that the BJCCA and the Trump
Campaign owed them a duty to protect by a showing of a special relationship or a
special circumstance.
i.

Special Relationship

Plaintiffs have not alleged the existence of a special relationship between the
parties warranting imposition of premises liability. By not addressing the special
relationship exception, they have waived any argument that it applies. See Coal.
for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326
(11th Cir. 2000) (“[F]ailure to brief and argue [an] issue during the proceedings
before [a] district court is grounds for finding that the issue has been abandoned.”);
see Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So. 2d 914, 923 (Ala.
2002); see also Smelser v. Trent, 698 So. 2d 1094, 1095 n.1 (Ala. 1997).
Even if the special relationship exception were considered, Plaintiffs have
not shown the “dependence or mutual dependence among the parties,” required for
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it to apply. Young v. Huntsville Hosp., 595 So. 2d 1386, 1388-89 (Ala. 1992)
(citation and internal quotation marks omitted); see Finley v. Patterson, 705 So.2d
826, 828 (Ala. 1997) (noting plaintiff must be “completely dependent upon the
defendants for protection”); see also Saccuzzo v. Krystal Co., 646 So. 2d 595, 597
(Ala. 1994) (plaintiff must be “uniquely” dependent on defendant for protection)
(discussing Young, 595 So. 2d 1386)).
ii.

Special Circumstances

For a finding of special circumstances imposing a duty to protect on a
premises owner, Alabama law requires a plaintiff to prove three elements. “First,
the particular criminal conduct must have been foreseeable. Second, the defendant
must have possessed ‘specialized knowledge’ of the criminal activity. Third, the
criminal conduct must have been a probability.” Carroll, 775 So. 2d at 756 (citing
Moye, 499 So. 2d at 1370; see Tenn Tom Bldg. v. Olen, Nicholas, & Copeland,
P.C., 908 So. 2d 230, 233 (Ala. 2005); see also New Addition Club, Inc. v. Vaughn,
903 So. 2d 68, 73 (Ala. 2004). However, Alabama courts have been unwilling to
apply this exception absent extraordinary circumstances, and none exists here. See
Williams v. First Ala. Bank, 545 So. 2d 26, 27 (Ala. 1989); see also CIE Service
Corp. v. Smith, 460 So. 2d 1244, 1247 (Ala. 1984) (“[I]t is difficult to impose
liability on one person for an intentional criminal act committed by a third
person.”); see also Moye, 499 So. 2d at 1372–73 (“When the number and
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frequency of crimes on the premises rise, and notice is shown on the part of the
owner, then, and only then, would criminal activity become reasonably
foreseeable.”).
First, Plaintiffs must show, “the particular criminal activity, not just any
criminal activity, [was] foreseeable.” New Addition Club, Inc., 903 So. 2d at 75
(emphasis added).

They have failed to do so.

Plaintiffs allege the criminal

conduct at issue was foreseeable based on 1) “threats of violence” in media reports;
2) incidents at other Trump rallies; 3) the general environment of the BJCC; 4) the
history of Birmingham; 5) one Plaintiff received a permit to demonstrate at the
rally; and 6) President Trump’s offer to pay legal fees for a supporter arrested at
his rally. (Doc. 23 at 7-8, 10, 19¶ 18, 20, 27, 61.) None of these allegations
meets the exacting standard required for liability under the law.
Next, to satisfy the second prong of the Carroll test, Southall and Chaverst
must show the BJCCA and the Trump Campaign possessed “specialized
knowledge” of the eventuality of the alleged assaults. See Carroll, 775 So. 2d at
756.

They have not done so.

The facts alleged do not indicate this was a

circumstance in which either Defendant “was given actual, express, and specific
notice that a specific person might attempt to commit a criminal act against another
specific person.” Gosa, 686 So. 2d at 1151. Plaintiffs claim both the BJCCA and
the Trump Campaign had actual knowledge that an incident to suppress opposing
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political viewpoints was imminent. They cite to Birmingham’s history of violence
as evidence of this knowledge. (Doc. 23 at 4.) However, general conclusory
statements of past violence in Birmingham are not enough to show the BJCCA or
the Trump Campaign knew or should have foreseen that there would be attacks at
this campaign rally. See Carroll, 775 So. 2d at 756. Plaintiffs also cite violence at
other Trump rallies to show the BJCCA and the Trump Campaign were on notice
of imminent violence at this rally in particular. However, the websites Plaintiffs
cite as evidence of past violence at Trump rallies show only one incident of
violence before the rally in Birmingham, the others reference incidents at rallies
subsequent to the one at issue in this case. Based on the facts pled, prior incidents
did not put the BJCCA or the Trump Campaign on notice that the assault by these
particular perpetrators was foreseeable.
In their Response to the BJCCA’s Motion to Dismiss, Plaintiffs allege for
the first time that campaign staff or BJCCA staff intercepted them at the entrance
to the rally saying the Plaintiffs were “[not] wanted [t]here,” stating, “We’ve been
expecting you.” (Doc. 49 at 13¶16.) However, in general, Plaintiffs cannot
amend their complaint by making additional factual allegations in a brief filed in
response to a motion to dismiss. See Schneider v. Cal. Dep’t of Corr., 151 F.3d
1194, 1197 n.1 (9th Cir. 1998); Harrell v. U.S., 15 F.3d 232, 236 (7th Cir. 1993);
accord Com. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir.
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1988) (“[I]t is axiomatic that the complaint may not be amended by the briefs in
opposition to a motion to dismiss.”) (internal quotations omitted)); cf. Gilmour v.
Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (noting that a party
cannot amend her complaint through argument in a brief opposing summary
judgment). However, even if permitted, these allegations do not rise to the level
required to avoid a Motion to Dismiss. While Plaintiffs do allege in their Second
Amended Complaint that as they entered the building they “noticed several . . .
Police Officers who appeared to recognize Southall and/or [the third party],” these
allegations are not enough to prove Defendants were on notice that Southall might
be involved in a potential incident at the rally. (Doc. 23 at 14.) The circumstances
surrounding the event were of no special import as to put either the BJCCA or the
Trump Campaign on notice of any imminent unlawful activity.
The circumstances here are far less egregious than those present in Carroll
and New Addition Club, neither of which held the premises owner liable. In New
Addition Club, a club patron was shot and killed by another patron outside the
club. 903 So. 2d at 69. The owner of the club knew the shooter had a propensity
for violence and was “hot-tempered” based on prior incidents—one in which he
had driven up to the door of the club wielding his shotgun, and another in which he
punched his girlfriend in the face in the club parking lot. Id. at 75. There had also
been one prior shooting at the club involving a different patron. Id. Even in light
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of the premises owner’s actual knowledge of the violent nature of this particular
patron, the Alabama Supreme Court still held that the club owner could not be held
liable because the murder was not foreseeable, nor was the killing of this particular
decedent a probability. Id.
In Carroll, the defendant restaurant owner was not liable even though the
attacker threatened the decedent on the defendant’s premises the night before she
was murdered at the restaurant. Carroll, 775 So. 2d at 754. Mrs. Harris arrived for
her restaurant shift one evening and voiced her fears about her husband beating,
choking and threatening her again as he had the night before at their home. Id. at
754. During that shift, Mr. Harris entered the restaurant and threatened her further.
Id. That night coworkers assisted Mrs. Harris in obtaining a motel room because
she was so afraid of her husband. Id. The next day, the events that had transpired
were communicated to the manager on duty and Mrs. Harris called in to ask if she
could be excused from her shift for fear that her husband would again attack her at
the restaurant. Id. at 755. However, the restaurant manager refused. Id. That day
during her shift, Mr. Harris entered the restaurant and killed Mrs. Harris. Id.
Despite the restaurant owner’s actual knowledge of the prior violence between the
spouses, on the restaurant premises and elsewhere, the Alabama Supreme Court
ruled that no employee of the restaurant “was told, or should have reasonably
foreseen” that Mr. Harris would kill his wife there. Id. at 757.
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Plaintiffs do not establish that the criminal conduct was foreseeable, nor do
they show that the Defendants, BJCCA and the Trump Campaign, possessed
special knowledge that these particular unidentified individuals would commit
violence against these particular Plaintiffs. Neither do they show that either
Defendant was aware those actions were probable as required to create special
circumstances under Alabama law.

Further, Plaintiffs have shown no special

connection between themselves and the private citizen rally attendees who
allegedly assaulted them. The BJCCA and the Trump Campaign owed no duty to
protect Plaintiffs from the actions of any unknown assailants. See Carroll, 775 So.
2d at 756; see also New Addition Club, Inc., 903 So. 2d at 75. Accordingly, the
BJCCA’s and the Trump Campaign’s Motions to Dismiss are due to be granted on
this claim.
B. Count Two: Breach of Contract by BJCCA & Trump
The Court declines address the state law breach of contract allegations in Count
One because, as explained below, after dismissal of the federal claims, we elect not
to exercise supplemental jurisdiction over the remaining state law claims. 28
U.S.C. § 1367(c)(3); see Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir.
2004).
C. Count Three: Violation of Constitutional Rights against the City of
Birmingham, BJCCA, and Trump Campaign

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An action may be brought under § 1983 if a person, acting under authority of
a statute, ordinance, regulation, custom, or usage of any State deprives a citizen of
any rights, privileges, or immunities secured by the Constitution. 42 U.S.C. § 1983
et seq.

However, “nothing in the language of the Due Process Clause itself

requires the State to protect the life, liberty, and property of its citizens against
invasion by private actors. The clause is phrased as a limitation on the State’s
power to act, not as a guarantee of certain minimal levels of safety and security.”
DeShaney v. Winnebago Cty. Dept. of Social Servs., 489 U.S. 189, 195 (1989)
(emphasis added).

Only custodial relationships such as incarceration or other

forms of involuntary confinement automatically give rise to a governmental duty to
protect citizens from harm by third parties. White v. Lemacks, 183 F.3d 1253,
1257 (11th Cir. 1999). The only other time a government entity may otherwise be
liable is where an official’s conduct is considered “arbitrary or conscious
shocking.” Id. (quoting Collins v. City of Harker Heights, 503 U.S. 115, 128
(1992)).
In White, nurses brought a § 1983 action against two sheriffs and the county.
183 F.3d at 1259.

Because the plaintiffs’ jobs necessitated close proximity to

inmates who had propensity for violence, the defendants affirmatively promised to
provide them protection and security. Id. at 1254. The defendants breached their
promise. Id. During one of their nursing shifts at the jail infirmary, the plaintiffs
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were assaulted and severely beaten by an inmate. Id. Even so, the Eleventh
Circuit affirmed the trial court’s grant of the defendants’ motion to dismiss for
failure to state a claim, finding no substantive due process violations. Id. at 1259.
In DeShaney, the Supreme Court ruled the State had no constitutional duty
to protect a son against his father’s violence even after receiving multiple reports
of child abuse which culminated in the child lapsing into a coma and suffering
permanent brain damage. 489 U.S. 189 at 195. The State’s failure to intervene did
not impose liability on the state caseworkers nor on the State, even though social
workers noticed bruising and lacerations on the four-year-old while he was in state
custody. Id. at 192-93.
Plaintiffs allege the City is liable for its failure to provide enough security at
the rally and for failing to make arrests after the incident occurred; the BJCCA is
liable for failing to prevent violence of this type from occurring on its premises;
and the Trump Campaign is liable for failing to take precautions against an
incident like this occurring.

However, “[t]he Due Process Clause is not a

guarantee against incorrect or ill-advised personnel decisions.” White, 183 F.3d at
1257 (quoting Collins, 503 U.S. at 129)). Plaintiffs’ assertions of wrong-doing by
Defendants are precisely that: personnel decisions. The Eleventh Circuit has been
consistent in its “reluctance to second-guess policy decisions about resources to be
allocated to safety, which are best left to ‘locally elected representatives, rather
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than . . . federal judges interpreting the basic charter of Government for the entire
country.’” Nix v. Franklin County Sch. Dist., 311 F.3d 1373, 1377 (11th Cir.
2002) (quoting Collins, 503 U.S. at 128–29; citing White, 183 F.3d at 1258)).
Plaintiffs have not provided sufficient factual allegations as to how the
section 1983 claim claims apply to Defendants or how Defendants violated the
rights guaranteed them by the Constitution.

They have only averred, in a

conclusory fashion, that Defendants acted with “deliberate indifference” toward
them. (Doc. 23 at 25-26.) The Eleventh Circuit “has been explicit in stating that
‘deliberate indifference’ is insufficient to constitute a due-process violation in a
non-custodial setting.” Nix, 311 F.3d at 1377. For these reasons, Plaintiffs have
not pled sufficient facts to show that they have section 1983 claims against the
Defendants.
Even assuming the claims were proper, Plaintiffs have not pled sufficient
facts to show Defendants’ acts shock the conscience. See Maddox v. Stephens, 727
F.3d 1109, 1119 (11th Cir. 2013) (“[P]laintiffs face a high bar when attempting to
establish a substantive due process violation.”) (quoting Waddell v. Hendry Cnty.
Sherriff’s Office, 329 F.3d 1300, 1305)). Courts seldom find government action by
government officials conscience-shocking; and “[o]nly the most egregious official
conduct can be said to be ‘arbitrary in the constitutional sense.’” Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (quoting Collins v. City of Harker
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Heights, Tex., 503 U.S. 115, 129 (1992)).

“To rise to the conscience-shocking

level, conduct most likely must be ‘intended to injure in some way unjustifiable by
any government interest.’” Davis v. Carter, 555 F.3d 979, 982 (11th Cir. 2009)
(quoting Lewis, 523 U.S. at 849). No facts have been pled showing Defendants
intended to injure Plaintiffs. Additionally, we have found no precedent to support
the assertion that a City, a venue or a political campaign’s failure to protect from
the intentional acts of a third party can be characterized as arbitrary or conscience
shocking in a constitutional sense.
Furthermore, because Plaintiffs were not incarcerated or otherwise
involuntarily confined, no special connection existed as to automatically give rise
to a governmental duty. See White, 183 F. 3d at 1257. Plaintiffs were simply
harmed by the utilization of allegedly insufficient security while attending the
rally. See id. at 1258 (“[W]hen someone not in custody is harmed because too few
resources were devoted to their safety and protection, that harm will seldom, if
ever, be cognizable under the Due Process Clause.”).

As such, Plaintiffs’

constitutional deprivation claims are not cognizable as Due Process violations and,
thus, fail as a matter of law. Southall and Chaverst’s claims under §1983 are due
to be dismissed and Defendants’ Motions to Dismiss are due to be granted as to
this claim.
D. Count Four: Violation of Ala. Code § 11-47-190 by the City
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Like Count Two, the Court declines to address allegations contained in this
Count because after dismissal of the federal claims we elect not to exercise
supplemental jurisdiction over the remaining state law claims. See Raney, 370
F.3d at 1089.
E.

State-Law Claims

After dismissal of the § 1983 claims, no federal claims remain. Plaintiffs,
Southall and Chaverst, and Defendants, BJCCA and the City, are all alleged to be
citizens of Alabama. Therefore, complete diversity does not exist. See 28 U.S.C.
§ 1332. Even if a claim has been stated under state law in Count One, it is
summarily dismissed in the alternative.

The Court declines to exercise

supplemental jurisdiction over the state law claims contained in Counts One, Two
and Four, and the claims are due to be dismissed without prejudice. 28 U.S.C. §
1367(c)(3); see Raney, 370 F.3d at 1089 (“We have encouraged district courts to
dismiss any remaining state claims when, as here, the federal claims have been
dismissed prior to trial.”).
V. Conclusion
For the reasons stated, the BJCCA’s Motion to dismiss (doc. 27) is due to be
GRANTED. The Trump Campaign’s Motion to Dismiss (doc. 39) is due to be
GRANTED. The City’s Motion to Dismiss (doc. 43) is due to be GRANTED.
An order will be entered along with this opinion.
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DONE and ORDERED on September 19, 2017.

_____________________________
L. Scott Coogler
United States District Judge
190685

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