Collier v. Bessemer, City of et al
MEMORANDUM OPINION. Signed by Judge R David Proctor on 9/11/2018. (KAM)
2018 Sep-11 PM 12:35
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CITY OF BESSEMER, et al.,
Case No.: 2:17-CV-711-RDP
This case is before the court on Defendants’ Motion to Dismiss (Doc. # 52). After careful
consideration, and for the reasons explained below, the court concludes that the motion is due to
be granted in part and denied in part.
Procedural History and Background
Bobby Collier filed this civil action on May 3, 2017. (Doc. # 1). Mr. Collier has filed
three different complaints in this case: his original complaint (Doc. # 1), his first amended
complaint (Doc. # 23), and his second amended complaint (Doc. # 50). Because the factual
allegations of the various complaints are relevant to deciding Defendants’ motion to dismiss, the
court describes each in turn.
According to his original complaint, Mr. Collier was shot multiple times on May 3, 2015.
(Doc. # 1 at ¶ 17). After Mr. Collier was shot, he alleged a paramedic arrived on scene and
erroneously determined that he “had suffered only a graze” when in fact two bullets were lodged
in Mr. Collier’s buttocks. (Id. at ¶¶ 19, 35). Two Bessemer City police officers, identified as
“Defendants ‘A’ and ‘B,’” then arrested Mr. Collier for discharging a weapon and transported
him to the Bessemer City jail, despite his request to go to the hospital. (Id. at ¶¶ 11, 19, 21).
While being processed at the jail by “Defendants ‘C’ and ‘D,’” Mr. Collier removed his clothes,
revealing two wounds in his buttocks. (Id. at ¶ 22). Mr. Collier’s wounds were still bleeding at
this time, but “Defendants ‘C’ and ‘D’” simply gave Mr. Collier jail clothes and rushed him into
his cell, ignoring his continued requests for medical attention. (Id. at ¶¶ 23-24). During the
course of his time in custody, additional city employees (who were also designated as fictitious
defendants) ignored Mr. Collier’s requests for medical attention. (Id. at ¶¶ 25-33).
Mr. Collier was later released from custody, and all charges against him were dropped.
(Id. at ¶ 29). After his release, Mr. Collier’s mother smelled a strong odor coming from his
gunshot wounds and promptly took him to the emergency room. (Id. at ¶ 34). There, medical
personnel discovered the two bullets lodged in Mr. Collier’s buttocks. (Id. at ¶ 35). By this time,
the wounds were so infected that Mr. Collier had to undergo a week of treatment before he could
have surgery to remove the bullets. (Id. at ¶ 36). The surgeons were unable to remove every
piece of the bullet from Mr. Collier’s body, and Mr. Collier has since spent months recovering,
has experienced residual problems related to the injury, and has experienced significant pain and
suffering. (Id. at ¶ 38).
Almost eleven months after filing his original complaint, Mr. Collier filed his first
amended complaint. (Doc. #23). Mr. Collier’s first amended complaint tells much the same story
as his original complaint, with a few differences. First, the first amended complaint substituted
Defendants Ronald Wilder and Jamal Bouyer for fictitious defendants “A” and “B” in the
original complaint. (Doc. # 23 at ¶¶ 9-10). Defendants Wilder and Bouyer are the Bessemer City
police officers who arrested Mr. Collier. (Id.). The first amended complaint also clarifies that the
paramedic(s) who treated Mr. Collier before he was taken to jail arrived at the scene after
Officers Wilder and Bouyer had arrested Mr. Collier, not before. (Id. at ¶¶ 11-12). The first
amended complaint repeated Mr. Collier’s allegation that the paramedic(s) improperly diagnosed
his gunshot wounds as mere grazes and that Officers Wilder and Bouyer then took him to jail
without further medical treatment, despite his requests to go to the hospital. (Id. at ¶¶ 12-13). The
rest of the allegations in the first amended complaint are substantially similar to the original
Finally, in July 2018, Mr. Collier filed his second amended complaint. (Doc. # 50). The
second amended complaint, which now purports to be the operative pleading in this case, states
that Mr. Collier was shot twice in his buttocks prior to being arrested by Officers Wilder and
Bouyer and that the officers took him straight to jail upon arresting him, ignoring his requests for
medical treatment at a hospital. (Id. at ¶¶ 8-11). But the second amended complaint entirely
omits any reference to the paramedics who allegedly stated that Mr. Collier had only suffered a
graze. (Id.). The remainder of the allegations in the second amended complaint are substantially
similar to those in his first two complaints.
The only defendants remaining in this case are the City of Bessemer (“the City”) and
Officers Wilder and Bouyer1 (“the Officers”). (Doc. # 49; Doc. # 50). Those remaining
defendants now move to dismiss Mr. Collier’s second amended complaint for failure to state a
claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6); (Doc. # 52).
The Federal Rules of Civil Procedure require that a complaint provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
complaint must include enough facts “to raise a right to relief above the speculative level.” Bell
Officer Bouyer has not yet been served, but the court addresses the allegations against him for
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more than “a
formulaic recitation of the elements of a cause of action” do not satisfy Rule 8, and neither do
pleadings that are based merely upon “labels and conclusions” or “naked assertion[s]” without
supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6) motion to dismiss,
courts view the allegations in the complaint in the light most favorable to the nonmoving party.
Watts v. Fla. International Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).
In considering a motion to dismiss, a court should “1) eliminate any allegations in the
complaint that are merely legal conclusions; and 2) where there are well-pleaded factual
allegations, ‘assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.’” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136,
138 (11th Cir. 2011) (quoting Am. Dental Assn. v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir.
2010)). 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.” Iqbal, 556 U.S. at 679. If the court determines that well-pleaded
facts, accepted as true, do not state a claim that is plausible, the claims must be dismissed.
Twombly, 550 U.S. at 570.
Mr. Collier claims that both the City and the Officers violated the Fourteenth Amendment
through their deliberate indifference to his need for medical care,2 and that the City is also liable
for negligently failing to train and supervise its employees. (Doc. # 50 at ¶¶ 38, 40, 43). The
court will address Mr. Collier’s claims against the City and the Officers separately.
Though none of Mr. Collier’s complaints invoke 42 U.S.C. § 1983, the court assumes that Mr. Collier
intends to rely on that statute to provide a private right of action against Defendants for their alleged violations of
the Fourteenth Amendment.
A. Mr. Collier’s Claims Against the Officers
“The Due Process Clause of the Fourteenth Amendment requires government officials to
provide medical care to individuals who have been injured during apprehension by the police.”
Valderrama v. Rousseau, 780 F.3d 1108, 1116 (11th Cir. 2015) (citing City of Revere v.
Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983)). To prevail on a § 1983 claim alleging a
violation of that right, a plaintiff must show that government officials were deliberately
indifferent to an objectively serious medical need. Id. Mr. Collier claims Officers Wilder and
Bouyer violated the Fourteenth Amendment by being deliberately indifferent to his serious
medical needs when they took him to jail instead of to the hospital after arresting him. The
Officers make two arguments in support of their motion to dismiss Mr. Collier’s § 1983 claim
against them. First, they argue that his claim is time-barred by the applicable statute of
limitations. Second, they argue that Mr. Collier’s allegations do not plausibly suggest that the
Officers violated clearly established law and thus that the doctrine of qualified immunity requires
1. Dismissal on Statute of Limitations Grounds Would Be Improper
Because federal law does not contain a statute of limitations for § 1983 claims, federal
courts must look to state law to supply the appropriate limitations period. See Owens v. Okure,
488 U.S. 235, 239 (1989). The Supreme Court has instructed federal courts entertaining § 1983
actions to borrow the limitations period of a state’s residual or general personal injury statute of
limitations. Id. at 250. Thus, § 1983 claims brought in Alabama are subject to the two-year
statute of limitations found in Ala. Code § 6-2-38(l). Jones v. Preuit & Mauldin, 876 F.2d 1480,
1483 (11th Cir. 1989).
The Officers argue Mr. Collier’s claim is time-barred because he failed to name them as
defendants until after the two-year limitations period expired. Mr. Collier filed his original
complaint on May 3, 2017, exactly two years from the date of his arrest by Officers Wilder and
Bouyer and thus the final day of the limitations period. But the original complaint referred to the
arresting officers as fictitious defendants “A” and “B,” and Mr. Collier did not name Officers
Wilder and Bouyer as defendants until more than 10 months later, when he filed his first
amended complaint. Mr. Collier responds that his claim is timely because his substitution of
Officers Wilder and Bouyer in the first amended complaint relates back to the date of the original
Where state law supplies the applicable statute of limitations, a federal court must apply
the relation-back rules of that state. Saxton v. ACF Indus., Inc., 254 F.3d 959, 963-66 (11th Cir.
2001).3 Because Alabama law supplies the statute of limitations in this case, Alabama’s relationback rules govern whether Mr. Collier’s substitution of Officers Wilder and Bouyer for the
fictitious defendants named in the original complaint relates back to the date of the original
Under Alabama law, the substitution of named defendants for fictitious defendants relates
back to the date of the original complaint when “(1) the original complaint adequately described
the fictitious defendant; (2) the original complaint stated a claim against the fictitious defendant;
(3) the plaintiff was ignorant of the true identity of the defendant; and (4) the plaintiff used due
diligence to discover the defendant’s true identity.” Saxton, 254 F.3d at 965 (citing Jones v.
Resorcon, Inc., 604 So. 2d 370, 372-73 (Ala. 1992)). In his original complaint, Mr. Collier
Though Saxton was a diversity case involving state law claims, its reasoning applies squarely to any
situation where state law provides the applicable statute of limitations, whether the substantive claim arises under
federal or state law. See 254 F.3d at 963 (“[I]f an amendment relates back under the law that provides the applicable
statute of limitations, that amendment relates back under [Federal Rule of Civil Procedure] 15(c)(1) even if the
amendment would not relate back under the federal law rules.”).
described fictitious defendants “A” and “B” as the Bessemer city police officers who arrested
him on May 3, 2015 (Doc. # 1 at ¶ 11), and the court assumes for purposes of this ruling that the
description adequately identified the defendants. The court also assumes that the original
complaint stated a claim against the Officers, at least for purposes of Alabama’s relation-back
rules,4 and that Mr. Collier was ignorant of the true identity of the Officers when he filed the
Thus, whether Mr. Collier’s § 1983 claim against the Officers is time-barred depends on
whether he used due diligence to discover their true identity. Although there is a serious question
about whether Mr. Collier met this requirement,6 this question is properly resolved on summary
judgment, not a motion to dismiss. In the Eleventh Circuit, “a Rule 12(b)(6) dismissal on statute
The court does not hold that the allegations of the original complaint stated a claim against the Officers
under the federal pleading standard announced in Twombly and Iqbal. But since the court must apply Alabama’s
relation-back rules in this case, it must interpret Alabama’s requirement that the original complaint state a claim
against the fictitious defendant as the Alabama Supreme Court understood that requirement when it announced it.
The Alabama Supreme Court doubtless understood that requirement to mean that the original complaint must state a
claim against the fictitious defendant under Alabama’s pleading standard, not the federal standard. And in Alabama,
dismissal for failure to state a claim is appropriate only “when it appears beyond doubt that the plaintiff can prove
no set of facts in support of the claim that would entitle the plaintiff to relief.” Snider v. Morgan, 113 So. 3d 643,
651 (Ala. 2012). Under that (lenient) standard, the court is willing to assume that Mr. Collier’s original complaint
stated a claim against the fictitious defendants.
Mr. Collier’s counsel has represented to the court that “the individual officers’ identities were unknown”
to Mr. Collier when he filed his original complaint. (Doc. # 56 at 4).
The due diligence prong of Alabama’s relation-back test asks whether at the time of the original
complaint a plaintiff knew or should have known “that the substituted defendants were in fact the parties described
fictitiously.” Jones, 604 So. 2d at 373 (quoting Davis v. Mims, 510 So. 2d 227, 229 (Ala.1987)). A plaintiff’s
obligation to diligently pursue the true identity of defendants continues to apply even “after filing the original
complaint,” and a plaintiff must substitute a named defendant for a fictitious party “within a reasonable time after
determining the defendant’s true identity.” Ex parte Hensel Phelps Const. Co., 7 So. 3d 999, 1003 (Ala. 2008)
(emphasis omitted). Alabama courts have found due diligence lacking where the plaintiff failed to obtain relevant
reports prior to filing suit or failed to conduct formal discovery on the identity of fictitious defendants after bringing
suit. See Bowen v. Cummings, 517 So. 2d 617, 618 (Ala. 1987); Ex parte Hensel Phelps Const. Co., 7 So. 3d 999,
1003-04 (Ala. 2008).
In this case, Mr. Collier failed to identify the officers who arrested him until more than 10 months after the
statute of limitations expired and almost three years after the date of his arrest. The record is devoid of any attempts
by Mr. Collier to ascertain the Officers’ identity during that time through either formal or informal means. There is
no evidence that Mr. Collier ever asked for his arrest report, and in the 10 months between filing his original
complaint and his amended complaint Mr. Collier did not serve any written discovery on the City of Bessemer
requesting the identity of any individual. (Doc. # 57 at 6). Thus, it is unclear at this stage whether Mr. Collier used
due diligence to determine the true identities of the Officers.
of limitations grounds is appropriate only if it is apparent from the face of the complaint that the
claim is time-barred.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004)
(internal quotation marks omitted). Whether Mr. Collier pursued the true identities of the
Officers with due diligence cannot be determined solely by looking at his various complaints;
thus, the court may not grant the Officers’ Rule 12(b)(6) motion on that basis. The court will
defer ruling on the statute of limitations defense until the parties have conducted discovery on
2. Mr. Collier’s Allegations Plausibly Suggest a Violation of Clearly Established
It is clearly established law in the Eleventh Circuit that officers act with deliberate
indifference when they “intentionally delay seeking treatment for a life-threatening injury” or
“an urgent medical condition that would be exacerbated by delay.” Valderrama v. Rousseau, 780
F.3d 1108, 1121 (11th Cir. 2015). In Valderrama, the Eleventh Circuit held that police officers
violated clearly established law when they delayed calling an ambulance for an arrestee with a
life-threatening gunshot wound and purposefully misreported the gunshot wound to 911
dispatchers as a laceration. Id. at 1117-22. Here, Mr. Collier has alleged that the officers who
arrested him ignored his requests for medical treatment for his gunshot wounds and instead took
him straight to jail without receiving medical treatment.7 These factual allegations are enough to
raise Mr. Collier’s “right to relief above the speculative level,” and are thus enough to survive a
motion to dismiss for failure to state a claim. Twombly, 550 U.S. at 555. Further, the court
believes that some limited discovery is necessary before it can properly assess the qualified
immunity defense raised. The court will thus permit the parties to proceed with discovery on this
For purposes of this ruling, the court considers the Mr. Collier’s second amended complaint, which is the
operative pleading in this case.
issue and will reconsider whether qualified immunity bars Mr. Collier’s claims at the summary
B. Mr. Collier’s Claims Against the City
After careful review, the court concludes that Plaintiff’s claims against the City are due to
1. Deliberate Indifference
A municipality may be liable under § 1983 “if the governmental body itself subjects a
person to a deprivation of rights or causes a person to be subjected to such deprivation.” Connick
v. Thompson, 563 U.S. 51, 60 (2011) (internal quotation marks omitted). But local governments
may be liable “only for their own illegal acts” under § 1983. Id. (emphasis in original) (internal
quotation marks omitted). “They are not vicariously liable under § 1983 for their employees’
Additionally, to state a claim under § 1983 against a municipality, a plaintiff must allege
that “action pursuant to official municipal policy caused their injury.” Id. (internal quotation
marks omitted). A policy that forms the basis for § 1983 liability must be either an “officially
promulgated” municipal policy or “an unofficial custom or practice” of the municipality “shown
through the repeated acts of a final policymaker” of the municipality. Grech v. Clayton Cty., Ga.,
335 F.3d 1326, 1329 (11th Cir. 2003). In the case of an unofficial custom or practice, the
plaintiff must show that the custom or practice “is the moving force [behind] the constitutional
violation.” Id. at 1330 (alteration in original) (internal quotation marks omitted).
Here, Mr. Collier has alleged no facts that plausibly suggest an official or unofficial City
policy that was the “moving force” behind any deliberate indifference toward Mr. Collier’s
medical needs. The only references in the second amended complaint to any City policy are mere
legal conclusions unsupported by factual allegations. See (Doc. # 50 at ¶ 30) (“The decision[s] of
the individual Defendants to deny Plaintiff necessary and appropriate medical care were made
pursuant to one or more municipal policies and customs.”); (Id. at ¶ 40) (“The denial of medical
treatment to Plaintiff is directly attributable to one or more customs and/or policies of the City of
Bessemer.”). Pleadings such as these that rely on mere “labels and conclusions” do not satisfy
Rule 8. Twombly, 550 U.S. at 555; see also Papasan v. Allain, 478 U.S. 265, 286 (1986)
(explaining that on a motion to dismiss, courts “are not bound to accept as true a legal conclusion
couched as a factual allegation”). Accordingly, Mr. Collier’s § 1983 deliberate indifference
claim against the City is due to be dismissed.
2. Negligent Supervision and Training
Count II of the second amended complaint alleges that the City is liable for negligently
failing to provide adequate supervision and training to its employees. (Doc. # 50 at ¶ 43). The
complaint does not specify whether this claim is brought under § 1983 or state law, but in either
event the claim is due to be dismissed.
If the claim is brought under § 1983, it fails for the same reason Mr. Collier’s § 1983
deliberate indifference claim against the City fails—Mr. Collier has alleged no facts that
plausibly suggest an official or unofficial City policy that caused the constitutional violations Mr.
Collier complains of. Indeed, the only allegation made in the second amended complaint on this
count is that the City “negligently failed to provide adequate supervision and training to its
employees, Defendants Wilder and Bouyer.” (Id.). That bare allegation simply does not render
plausible a § 1983 claim for municipal liability.
If the claim is brought under Alabama state law, it fails because “Alabama law does not
recognize a cause of action against a municipality or supervisor for negligent training or
supervision.” Doe v. City of Demopolis, 799 F. Supp. 2d 1300, 1312 (S.D. Ala. 2011). Numerous
courts have recognized this principle. See, e.g., Borton v. City of Dothan, 734 F. Supp. 2d 1237,
1258 (M.D. Ala. 2010) (granting summary judgment for municipality on negligent
training/supervision claim because “no Alabama court has expressly recognized a cause of action
against a municipality for a supervisor’s negligent training or supervision of a subordinate”);
Hamilton v. City of Jackson, 508 F. Supp. 2d 1045, 1057-58 (S.D. Ala. 2007) (same); Ott v. City
of Mobile, 169 F. Supp. 2d 1301, 1314-15 (S.D. Ala. 2001) (same). And more to the point, Mr.
Collier failed to address the City’s argument that Alabama does not recognize a cause of action
against municipalities for negligent training or supervision in his response brief. (Doc. # 56).
Thus, Mr. Collier has conceded his negligent supervision and training claim. See Childress v.
Walker, 943 F. Supp. 2d 1332, 1349 (M.D. Ala. 2013) (“[W]hen a plaintiff files an opposition to
a dispositive motion and addresses only certain arguments raised by the defendant, a court may
treat those arguments that the plaintiff failed to address as conceded.”). The claim is accordingly
due to be dismissed.
For the reasons explained above, Defendants’ Motion to Dismiss (Doc. # 52) is due to be
granted in part and denied in part. All claims against the City of Bessemer are due to be
dismissed for failure to state a claim upon which relief can be granted. But Mr. Colliers’
deliberate indifference claim against the individual officers may proceed. An Order consistent
with this Memorandum Opinion will be entered.
DONE and ORDERED this September 11, 2018.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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