Buttram v. City of Bessemer et al
Filing
15
MEMORANDUM OPINION AND ORDER GRANTING IN PART and DENYING IN PART 5 MOTION to Dismiss as set out herein, GRANTING 7 MOTION to Strike and all fictitious defendants are hereby STRICKEN. Signed by Judge Virginia Emerson Hopkins on 1/17/2018. (JLC)
FILED
2018 Jan-17 PM 03:25
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NANCY BUTTRAM,
)
)
Plaintiff,
)
)
v.
) Case No.: 2:17-CV-0846-VEH
)
CITY OF BESSEMER, a municipal )
corporation, and EBBONI PERDUE, )
in her official and individual capacity, )
)
Defendants.
)
MEMORANDUM OPINION AND ORDER
This civil action was originally filed in the Circuit Court of Jefferson County,
Alabama by the Plaintiff, Nancy Buttram, against the City of Bessemer (the “City”),
and Ebboni Perdue, a police officer with the City of Bessemer police department. The
Complaint also names four “fictitious defendants.” The Plaintiff sets out the following
counts against all Defendants: negligence (Count One); negligent supervision, hiring,
and maintenance (Count Two); excessive force (Count Three), and a count entitled
“Violations of 42 U.S.C. § 1983[:] False Arrest[,] False Imprisonment [,] & Unlawful
Detention” (Count Four). All counts arise out of the following facts, taken directly from
the Complaint:
On or about April 5, 2015 at the Beer Garden Facility in Bessemer,
Alabama, the Plaintiff was detained by Defendant Perdue in a response
to a call made from The Beer Garden Facility. That upon Defendant
Perdue detaining the Plaintiff, Defendant Perdue grabbed the Plaintiff by
the back of her head, slammed Plaintiff into the trunk of her vehicle and
hit the Plaintiff in the back of her head with a clipboard. Moreover, after
Plaintiff was detained, Plaintiff was not secured in the patrol car unit in
which she was traveling in as she was being transported to the Bessemer
City Jail. As a result of Plaintiff being unsecured, Defendant Perdue on
multiple occasion while traveling slammed on her brakes causing the
Plaintiff to slam her head against the police vehicle glass shield. After said
arrival to the Bessemer Jail, Defendant Perdue shoved the Plaintiff
thereby causing her to fall and hit her head against an object inside of the
jail cell.
(Doc. 1-2 at 3, ¶7).
The case was removed to this Court on May 22, 2017. (Doc. 1). After removal,
Office Purdue filed an Answer to Counts One and Three. (Doc. 8). Thereafter, both
Defendants filed a Motion To Dismiss, pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure, alleging that the Complaint failed to state a claim upon which relief
may be granted. (Doc. 5). That Motion is before the Court now. In it, Officer Price
seeks dismissal of Counts Two and Four, and the City seeks dismissal of all Counts.
Also before the Court is the Defendants’ Motion To Strike the fictitious parties. (Doc.
7). For the reasons stated herein, the Motion To Strike will be GRANTED and the
Motion To Dismiss will be GRANTED in part and DENIED in part.
I.
THE MOTION TO STRIKE (DOC. 7)
The Eleventh Circuit has stated:
2
As a general matter, fictitious-party pleading is not permitted in federal
court. See, e.g., New v. Sports & Recreation, Inc., 114 F.3d 1092, 1094
n. 1 (11th Cir.1997). We have created a limited exception to this rule
when the plaintiff's description of the defendant is so specific as to be “at
the very worst, surplusage.” Dean v. Barber, 951 F.2d 1210, 1215–16
(11th Cir.1992).
Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010). In the caption of the
Complaint, the “fictitious defendants” are described as follows:
A, whether singular or plural, being the correct legal name of the entity
known only to the Plaintiffs [sic] as the City of Bessemer; B, whether
singular or plural, being any officer in the police vehicle who or assisted
in unlawful detention and arrest of the Plaintiff which made the basis of
this lawsuit, or any component part thereof; C, whether singular or plural,
that individual, entity or entities who negligence, wantonness or other
wrongful conduct caused or contributed to cause the injuries and damages
complained herein; D, whether singular or plural, being that entity or
individual who are or which is or are successor in interest of any of the
Defendants name or described herein[.]
(Doc. 1-2 at 1). In the body of the Complaint, they are described as follows:
Fictitious Defendant A, B, C, and D are those individuals, entities,
corporations or partnerships who are not known at this time, but will be
added by amendment when ascertained including one of the following:
a. Parties responsible in some manner for the events and
happenings herein referred to that caused injuries and damages
proximately thereby to the Plaintiff as herein alleged;
b. Parties that are the agents, servants, employees, employers,
and/or contractors of the Defendant, each of them acting within the course
and scope of their agency, employment or contract[.]
(Doc. 1-2 at 3, ¶4). The quoted passages do not describe specific individuals or entities
3
who are responsible for the alleges injuries to the Plaintiff. The fictitious defendants
will be STRICKEN.
II.
THE MOTION TO DISMISS (DOC. 5)
A.
Standard
Generally, the Federal Rules of Civil Procedure require only that the complaint
provide “a short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a). However, to survive a motion to dismiss brought under
Rule 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (“Twombly”).
A claim has facial plausibility “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556) (“Iqbal”). That is, the complaint must include enough facts “to raise a right
to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation and footnote
omitted). 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 assertion[s]” without
supporting factual allegations. Id. at 555, 557 (citation omitted).
Once a claim has been stated adequately, however, “it may be supported by
4
showing any set of facts consistent with the allegations in the complaint.” Id. at 563
(citation omitted). Further, when ruling on a motion to dismiss, a court must “take the
factual allegations in the complaint as true and construe them in the light most favorable
to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) (citing
Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308 (11th Cir. 2006)).
B.
Analysis
1.
Negligence (Count One)
As noted above, only the City moves to dismiss this Count. Count One alleges
that
The named Defendant[s] and Fictitious Defendants “A”, “B”, “C”, and
“D” negligently, carelessly, recklessly, willfully, and wantonly committed
tortious and harmful acts against the Plaintiff thereby causing her to suffer
injuries.
(Doc. 1-2 at 3, ¶7). To the extent that this count, despite being labeled “Negligence,”
actually seeks to hold the City liable for “willful” and “wanton” conduct, it is due to
be dismissed. See, Ex Parte Labbe, 156 So. 3d 368, 374 (Ala. 2014) (noting that “the
City cannot be held liable for wanton or intentional conduct”); Ex parte City of
Bessemer, 142 So. 3d 543, 550 (Ala. 2013) (no exception to “the general rule of
municipal immunity from liability in the case of intentional or malicious actions by the
agents or officers of the municipality”). However, the Alabama Supreme Court has
5
noted that:
[Ala. Code] § 11–47–190 creates an exception to the general rule
of immunity for municipalities . . . when a plaintiff has suffered injury as
a result of “the neglect, carelessness or unskillfulness” of some agent, or
when the plaintiff suffers injury as a result of the “neglect or carelessness
or failure to remedy some defect” in public works caused by a third party.
Ex parte City of Bessemer, 142 So. 3d at 550. Although the City argues that “[t]his
claim seems to have been made only against Officer Perdue . . .” (doc. 6 at 5), the
allegations in Count One can fairly be read to state a claim against the City which falls
under Ala. Code §11-47-190.
The City’s only basis for dismissal of the negligence claims in Count One is that
the Plaintiff failed to comply with the jurisdictional prerequisites to filing suit against
a municipality found in Ala. Code §§ 11-47-24 and 11-47-192.1 (See doc. 6 at 6-8).
That is, the City argues that the Plaintiff failed present to the City’s clerk a sworn
statement of claim. However, the Complaint clearly alleges that such a claim was filed
“within the time frame required.” (See doc. 1-2 at 3, ¶6). Although the Complaint states
1
In its reply brief, the City argues the plausibility standards from Twombly and Iqbal,
stating that because “the claims in Count One do not appear to have been made against the City of
Bessemer,” the “[C]omplaint does not sufficiently plead facts allowing for the ‘reasonable
inference that the [City] is liable for the misconduct alleged.’” (Doc. 11 at 3) (quoting Iqbal 556
U.S. at 678). Although the City argued in its initial brief that Count One did not seem to be made
against it, it did not argue that the facts as set out in the Complaint did not “plausibly” set out a
claim. This new argument, raised for the first time in the City’s reply brief, will not be considered.
See, Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) (arguments raised for
the first time in a reply brief are not properly before a reviewing court). Additionally, the Court
concludes that the facts set out in the Complaint plausibly support Count One.
6
that the claim itself is attached to the Complaint as “Exhibit A,” it is not. Regardless,
the Complaint alleges that the requirement was satisfied, and the Plaintiff has produced
the claim in response to the Motion To Dismiss. (Doc. 9 at 15-18).2 Count One will not
be dismissed to the extent that it brings negligence claims against the City. However,
any claims against the City in such count for “willful” or “wanton” conduct will be
dismissed with prejudice.
2.
Negligent Hiring, Training, and Supervision (Count Two)
a.
Officer Perdue’s Motion
Both Defendants move to dismiss this claim. Although this claim is brought
against “the named Defendants,” Officer Perdue cannot be liable for negligently hiring,
training, and supervising herself. Furthermore, no facts are alleged which plausibly
support such a claim. To the extent that the Plaintiff intended to bring this claim against
Officer Perdue, it will be dismissed with prejudice.
b.
The City’s Motion
The City argues that this claim is not cognizable against a municipality under
Alabama law. Indeed, “‘no Alabama court has expressly recognized a cause of action
2
In response, the City “reserve[s] its right to argue that [the claims against it] should be
dismissed due to the [claim] having failed to legally comply with the requirements of §§11-47-23,
-192.” (Doc. 11 at 4, n. 2). “Reserved” it may be, but that argument is not before the Court in the
instant motion and will not be addressed at this time.
7
against a municipality for a supervisor's negligent training or supervision of a
subordinate.’” Barr v. Jefferson Cty. Barber Comm'n, 250 F. Supp. 3d 1245, 1258
(N.D. Ala. 2017) (Hopkins, J.) (quoting Borton v. City of Dothan, 734 F.Supp.2d 1237,
1258–59 (M.D. Ala. 2010) (Watkins, J.)). The Plaintiff cites authority only for the
recognition of such conduct in the context of a section 1983 claim. (See doc. 9 at 7)
(citing Owens v. City of Fort Lauderdale, 174 F. Supp. 2d 1298, 1310 (S.D. Fla. 2001)
and City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 1204, 103 L.
Ed. 2d 412 (1989)). Furthermore, no facts are alleged which plausibly establish such
a claim in this count. Count Two will be dismissed as to the City.3
3.
Excessive Force (Count Three) and False Arrest, False
Imprisonment, and Unlawful Detention (Count Four)
a.
The City’s Motion
The City moves to dismiss Counts Three and Four. Although not clearly set out
in the Complaint, in her response to the Motion To Dismiss, the Plaintiff makes it clear
that the claims in these two counts allege a violation of 42 U.S.C. § 1983. The Eleventh
Circuit has stated:
A municipality may be liable under § 1983 for the actions of its
police officers only if the municipality is “found to have itself caused the
constitutional violation at issue; it cannot be found liable on a vicarious
3
To the extent that Count Two can be read to allege a section 1983 claim against the City,
it is due to be dismissed for the reasons set out in the next section of this opinion.
8
liability theory.” Skop v. City of Atlanta, GA, 485 F.3d 1130, 1145 (11th
Cir.2007). “It is only when the execution of the government's policy or
custom ... inflicts the injury that the municipality may be held liable under
§ 1983.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir.1998)
(internal quotation marks omitted). Thus, to establish municipal liability
under § 1983, the plaintiff must show that: (1) his constitutional rights
were violated, (2) the municipality had a custom or policy that constituted
deliberate indifference to his constitutional rights, and (3) the policy or
custom caused the violation of his constitutional rights. McDowell v.
Brown, 392 F.3d 1283, 1289 (11th Cir.2004). “A policy is a decision that
is officially adopted by the municipality, or created by an official of such
rank that he or she could be said to be acting on behalf of the
municipality.” Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir.2005).
“A custom is a practice that is so settled and permanent that it takes on
the force of law.” Id.
“In order for a plaintiff to demonstrate a policy or custom, it is
generally necessary to show a persistent and wide-spread practice.”
McDowell, 392 F.3d at 1290. And “state and local positive law determine
whether a particular official has final policymaker authority for § 1983
purposes.” Cooper, 403 F.3d at 1221 (quotation marks omitted).
Ludaway v. City of Jacksonville, Fla., 245 F. App'x 949, 951 (11th Cir. 2007).
The Complaint fails to allege any facts supporting a plausible inference that a
municipal policy, custom, or practice caused the Plaintiff’s injuries.4 Indeed, in her
response to the Motion To Dismiss, the Plaintiff confirms that these facts are not pled
because “there has not been sufficient time allowed for the mandatory disclosures and
4
Indeed, the words “policy” and “custom” appear nowhere in the Complaint. The word
“practice” appears only once, on the first page of the Complaint, in the following sentence:
“Through its agents, the City of Bessemer is responsible for the policies, procedures and practices
implemented through its various agencies, agents, departments, and employees.” (Doc. 1-2 at 1,
¶3). No facts are alleged as to which “practices” caused the Plaintiff’s injuries.
9
discovery requests for Plaintiff . . .to assess whether said Defendant has any history,
policy and or customs.” (Doc. 9 at 10). However, “‘[a] litigant may not use discovery
to determine whether there is a cause of action. The purpose of discovery is to find out
additional facts about a well-pleaded claim, not to find out whether such a claim
exists.’” Miller v. MP Glob. Prod., LLC, No. CIV.A. 12-00747-KD-N, 2014 WL
1017887, at *4 n.5 (S.D. Ala. Mar. 17, 2014) (Nelson, M.J.) (quoting Hughes v.
LaSalle Bank, N.A., No. 02Civ.6384MBMHBP, 2004 WL 414828 (S.D.N.Y. Mar.4,
2004) (Pollack, J.)); see also, Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d
1313, 1330 (11th Cir. 2015) (dismissing section 1983 claim for failure to contain
“sufficient, non-conclusory allegations that there is an official ‘policy or custom’”).
Counts Three and Four, to the extent that they are brought against the City, will be
dismissed.5
b.
Officer Perdue’s Motion
Officer Perdue moves to dismiss Count Four. The Supreme Court has stated:
We hold that, in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by
5
As to the City, Count Four is also due to be dismissed pursuant to the doctrine
established in Heck v. Humphrey, 512 U.S. 477 (1994), discussed infra.
10
a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.
A claim for damages bearing that relationship to a conviction or sentence
that has not been so invalidated is not cognizable under § 1983.
Heck v. Humphrey, 512 U.S. 477, 486–87, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d 383
(1994) (footnote omitted). The Plaintiff’s claims under section 1983 for False Arrest,
False Imprisonment, and Unlawful Detention all arise out of conduct for which she was
convicted. The Plaintiff admits that these charges are “still pending,” and thus her
convictions have not been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such determination, or called
into question by a federal court’s issuance of a writ of habeas corpus. Therefore, her
claims are not cognizable under section 1983. Count Four is due to be dismissed as to
Officer Purdue.
III.
CONCLUSION
For the reasons stated herein, it is hereby ORDERED, ADJUDGED, and
DECREED as follows:
1.
The Motion To Strike is GRANTED. All fictitious defendants are
STRICKEN.
2.
The Motion To Dismiss is GRANTED in part.
a.
The City’s Motion is GRANTED and Count One is DISMISSED
WITH PREJUDICE as to any claims it based on “willful” or
11
“wanton” conduct.
b.
The City’s Motion is DENIED as to any claims in Count One
based on “negligence.”
c.
Officer Perdue’s Motion is GRANTED as to Count Two and any
claims against her in this count are DISMISSED WITH
PREJUDICE.
d.
The City’s Motion is GRANTED as to Count Two and any claims
against it in this count are DISMISSED WITH PREJUDICE.
e.
The City’s Motion is GRANTED as to Counts Three and Four and
any claims against it in these counts are DISMISSED WITHOUT
PREJUDICE.
f.
Officer Perdue’s Motion is GRANTED as to Count Four and any
claims against her in this count are DISMISSED WITHOUT
PREJUDICE.
3.
Except as otherwise set out herein, the motions to dismiss are DENIED.
DONE and ORDERED this 17th day of January, 2018.
VIRGINIA EMERSON HOPKINS
United States District Judge
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?