Lowe v. Warrior, Alabama, City of et al
Filing
19
MEMORANDUM OPINION. Signed by Judge R David Proctor on 6/21/2018. (JLC)
FILED
2018 Jun-21 PM 05:18
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CRYSTAL NICOLE LOWE,
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Plaintiff,
v.
SERGEANT STEVE SCOTT,
Defendant.
Case No.: 2:17-cv-01436-RDP
MEMORANDUM OPINION
This case is before the court on Defendant’s Motion to Dismiss Plaintiff’s Amended
Complaint. (Doc. # 12). The parties have fully briefed the Motion (see Docs. # 12, 15-16), and
it is ripe for decision. After careful review, and for the reasons explained below, Defendant’s
Motion to Dismiss is due to be granted.
I.
Background
On August 16, 2016, Plaintiff and Hoyt Lowe (“Hoyt”) finalized their divorce. (Doc. #
11 at ¶ 8). Their divorce agreement granted Hoyt sole and exclusive use and occupancy of the
marital residence. (Id. at ¶ 8). Nevertheless, after an Alabama circuit court entered a divorce
judgment, Plaintiff and Hoyt entered into a verbal agreement whereby “Plaintiff and their three
children were to stay at the marital residence until they were able to find a place to live.” (Id. at
¶ 9). According to the Amended Complaint, this agreement created a tenancy at will between
Plaintiff and Hoyt. (Id.).
On the evening of August 24, 2016, Hoyt called the police to his residence. (Id. at ¶ 10).
Defendant, a sergeant with the Warrior Police Department, responded to the “domestic call.”
(See id. at ¶¶ 6, 10-11).
Hoyt insisted that Plaintiff and their three children -- ages 2, 7, and
10 -- be removed from the residence.1 (Id. at ¶ 10). Defendant allegedly instructed Plaintiff to
leave the residence or she would be taken to jail. (Id. at ¶ 11). When Plaintiff attempted to
explain the situation and her oral agreement with Hoyt, Defendant interrupted her and reiterated
that she would be taken to jail if she did not leave the residence. (Id.). Defendant instructed
Plaintiff to gather her belongings and leave the residence. (Id. at ¶ 12). Ultimately, Plaintiff left
the residence with her three children. (Id. at ¶ 13).
II.
Standard of Review
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).
However, the complaint must include enough facts “to raise a right to relief above the
speculative level.” Bell 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 meet Rule
8 standards, nor do pleadings suffice 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 non-moving party. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir.
2007).
To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible
on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
1
To be clear, Hoyt Lowe is a non-party to this action, and the court is not being asked to discuss or decide
the propriety of Hoyt’s insistence that not only Plaintiff but their three children (ages 10 and under) be evicted from
the home late in the evening of August 24, 2016. And, although the court is having difficulty conceiving of any
justification for Hoyt’s conduct, the propriety of his demand to put three young children on the street is not a matter
for the court to adjudicate.
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liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 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. A plausible claim for
relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal
evidence” to support the claim. Twombly, 550 U.S. at 556.
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 Ass’n 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 all of the
well-pleaded facts, accepted as true, do not state a claim that is plausible, the claims are due to be
dismissed. Twombly, 550 U.S. at 570.
III.
Analysis
In her Amended Complaint, Plaintiff raises one 42 U.S.C. § 1983 claim against
Defendant in his individual and official capacities. (Doc. # 11 at ¶¶ 14-18). Plaintiff claims that
Defendant deprived her of her due process rights by removing her children and her from the
residence despite her valid oral lease. (Id. at ¶ 17). Defendant argues that Plaintiff’s procedural
due process claim fails as a matter of law because: (1) Plaintiff has not pled a Monell policy or
custom to justify an official capacity claim; (2) Plaintiff had no property interest in the residence
under a tenancy at will; (3) Plaintiff could have obtained an adequate post-deprivation remedy
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through a wrongful eviction suit in Alabama state court; and (4) Defendant is entitled to qualified
immunity. The court begins its analysis by discussing the official capacity claim remaining in
this action. Then, the court proceeds to address whether Defendant is entitled to qualified
immunity for the procedural due process claim. Because the court concludes that the claims
against Defendant are due to be dismissed based on those arguments, the court does not address
Defendant’s other contentions.
A.
Plaintiff’s Official Capacity Claim is Due to be Dismissed
Plaintiff has sued Defendant in his individual and official capacities. (Doc. # 11 at p. 1).
A suit against a municipal officer in his official capacity is functionally equivalent to a suit
against the municipality itself. Snow ex rel. Snow v. City of Citronelle, Ala., 420 F.3d 1262,
1270 (11th Cir. 2005). It is axiomatic that a municipality cannot be held liable under § 1983
under a respondeat superior theory. Id. Instead, to hold a municipality liable, a plaintiff “must
show: (1) that his constitutional rights were violated; (2) that the municipality had a custom or
policy that constituted deliberate indifference to that constitutional right; and (3) that the policy
or custom caused the constitutional violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th
Cir. 2004) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)). Here, Plaintiff’s
Amended Complaint contains no factual allegations whatsoever to support the existence of a
municipal policy or custom that caused the alleged constitutional violation. (See generally Doc.
# 11). Nor has Plaintiff argued in support of an official capacity claim in her opposition brief.
(See generally Doc. # 15). Accordingly, the court agrees with Defendant that any official
capacity § 1983 claim remaining in this action is due to be dismissed.
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B.
Defendant is Entitled to Qualified Immunity with Regard to Plaintiff’s
Procedural Due Process Claim
To state a procedural due process claim, a plaintiff must assert a deprivation of a
protected liberty or property interest, state action that deprives her of that interest, and
constitutionally inadequate process. Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003).
Federal courts look to state law to define the scope of a plaintiff’s property interests. Marine
One, Inc. v. Manatee Cty., 898 F.2d 1490, 1492 (11th Cir. 1990). Generally, a person enjoys a
protected property interest in continued residency under a lease or tenancy arrangement. E.g.,
Grayden, 345 F.3d at 1232 (citing Greene v. Lindsey, 456 U.S. 444, 450-51 (1982), and Ward v.
Downtown Dev. Auth., 786 F.2d 1526, 1530-31 (11th Cir. 1986)). “As a general rule, an eviction
must be preceded by notice and an opportunity to be heard” unless “exigent circumstances”
justify a postponement of the hearing. Id. at 1236.
Qualified
immunity
shields
“government
officials
performing
discretionary
functions . . . from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity utilizes an objective
reasonableness standard, “giving a government agent the benefit of the doubt unless her actions
were so obviously illegal in the light of then-existing law that only an official who was
incompetent or who knowingly was violating the law would have committed them.” GJR Invs.,
Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1366 (11th Cir. 1998), overruled on other grounds
by Randall v. Scott, 610 F.3d 701 (11th Cir. 2010). The Eleventh Circuit has cautioned that
“courts should think long and hard before stripping defendants of immunity.” Ray v. Foltz, 370
F.3d 1079, 1082 (11th Cir. 2004). “We generally accord . . . official conduct a presumption of
legitimacy.” U.S. Dep’t of State v. Ray, 502 U.S. 164, 179 (1991).
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Whether a defendant is entitled to qualified immunity is determined by engaging in a
three-step analysis. See Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1136-37 (11th Cir. 2007).
The initial burden is on an official claiming qualified immunity to establish that he was acting
within his discretionary authority. Id. Here, Plaintiff does not dispute that Defendant acted
within his discretionary authority by responding to a domestic call for police assistance. Cf.
Peach State Recovery, Inc. v. Goodwin, No. 2:06-CV-0050-RWS, 2008 WL 109338, at *6-7
(N.D. Ga. Jan. 8, 2008) (concluding that a Georgia deputy sheriff acted within the scope of his
discretionary authority when responding to a 911 call regarding an aggressive driver), aff’d, 290
F. App’x 233 (11th Cir. 2008). Once that showing is made, the burden shifts to a plaintiff to
show that the “defendant’s conduct violated a statutory or constitutional right.” Skop, 485 F.3d
at 1137. Finally, “the plaintiff must show that the violation was ‘clearly established.’” Id.
A plaintiff may show that a defendant violated clearly established law in one of three
ways. First, a plaintiff “may show that ‘a materially similar case has already been decided.’”
Terrell v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012) (quoting Mercado v. City of Orlando, 407
F.3d 1152, 1159 (11th Cir. 2005)).
Second, a plaintiff “can point to a ‘broader, clearly
established principle that should control the novel facts of the situation.’” Id. (quoting Mercado,
407 F.3d at 1159) (alterations adopted). Third, a plaintiff may show that the conduct at issue so
obviously violates the Constitution that prior case law is unnecessary. Id. (quoting Mercado, 407
F.3d at 1159). Plaintiff must meet this burden “by looking to the law as interpreted at the time
[of the alleged violation] by the United States Supreme Court, the Eleventh Circuit, or the
[Alabama] Supreme Court.” Id.
Plaintiff’s opposition brief cites several Alabama state court opinions and Alabama
statutes, but none of the cited authority clearly states that a police officer is required to provide a
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tenant at will pre-deprivation procedure before directing him or her to leave a residence.
Alabama Code § 35-9A-427 prohibits a landlord from performing self-help evictions, but it says
nothing about whether an officer can direct a tenant at will by oral agreement to leave a
residence when a landlord seeks to evict such a tenant. Similarly, the divorce cases cited by
Plaintiff say nothing about the process due to a tenant at will before directing him or her to leave
a residence. See generally Abdo v. Abdo, 435 So. 2d 1292 (Ala. Civ. App. 1982) (discussing
alimony payments ordered in a divorce proceeding); Thomas v. Thomas, 406 So. 2d 939 (Ala.
Civ. App. 1981) (discussing a contempt proceeding against a husband who had failed to make
alimony payments); Hutton v. Hutton, 222 So. 2d 348 (Ala. 1969) (discussing a modification
proceeding for alimony and support).2 Simply put, the state law cited by Plaintiff fails to show
that Plaintiff had a clearly established property interest to use the residence in light of Hoyt’s
legal position as the sole owner of the residence, his call to the police, and his demand that
Plaintiff and her children be removed from the residence. Moreover, Plaintiff has not plausibly
pleaded allegations to show what process she was entitled to receive before being removed from
the residence.
Binding authority from the Supreme Court and the Eleventh Circuit also offers no clear
answer to the issues presented by Plaintiff’s procedural due process claim.
The Eleventh
Circuit’s Grayden opinion addressed the eviction of tenants from a residential apartment
complex by a code enforcement officer. 345 F.3d at 1227-28. There, a code enforcement board
informed the complex’s owner of a pre-condemnation hearing, but officials directed the
2
The court observes that Abdo and Thomas are not opinions that could provide clearly established law in
the qualified immunity context because they were not issued by the Alabama Supreme Court. See Terrell, 668 F.3d
at 1255. The court also notes that Johnson v. State, 473 So. 2d 607 (Ala. Cr. App. 1985), overruled by Ex parte
Gentry, 689 So. 2d 916 (Ala. 1996), does not provide clearly established law relevant to this case because it is not a
decision by the Alabama Supreme Court, and it discusses the crime of burglary in the context of a capital murder
trial.
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complex’s residents to leave their apartments within one day without informing them of their
right to a hearing to challenge the condemnation. Id. at 1228. The Eleventh Circuit explained
that the tenants had a constitutionally-protected property interest in continued residency at the
complex. Id. at 1232. Nevertheless, it held that the tenants could be evicted from the complex
without a pre-deprivation hearing because the structure was dangerous and potentially
life-threatening, as long as they received contemporaneous notice of their right to challenge the
eviction in a post-deprivation hearing. Id. at 1237-38. Although the Grayden court determined
that the code enforcement officer violated the plaintiffs’ procedural due process rights by
providing inadequate notice, it granted the officer qualified immunity because a reasonable
officer could have believed that the tenants were not entitled to contemporaneous notice at the
time of eviction. Id. at 1244-49.
Grayden could not have provided Defendant with clear notice of Plaintiff’s procedural
due process rights for a few reasons. First, Grayden is not a “materially similar” case because it
discusses a code officer’s eviction of tenants for perceived safety problems in a building, not a
police officer’s direction for an individual to leave a residence during a dispute when it is alleged
in the First Amended Complaint that one party had a court order that granted sole and exclusive
right to reside in the home and the other did not. Cf. Terrell, 668 F.3d at 1255. The exigent
circumstances presented in Grayden (i.e., the dangerous conditions perceived in the apartment
complex) are not applicable to this case. Second, Grayden does not provide a clear broader
principle governing this case. Grayden explains that a tenant should receive pre-deprivation
notice before being evicted through state action unless exigent circumstances exist. See 345 F.3d
at 1236-37. But, it does not address whether or when exigent circumstances exist in this context.
Third, Grayden addresses a code enforcement officer’s authority to evict individuals, not a police
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officer’s authority to do so in response to a call for assistance. It is clear to the court that
different kinds of exigent circumstances can arise in a police officer’s duties than those faced by
a code enforcement officer. For these reasons, Grayden offers no clearly established law to
support Plaintiff’s procedural due process claim.
The Eleventh Circuit’s opinion in Ward also addresses a procedural due process claim by
evicted tenants. There, the tenants resided at an apartment complex purchased by a public
development agency. Ward, 786 F.2d at 1527. The plaintiffs were month-to-month tenants with
no written lease agreements, and they signed documents stating that their existing oral
agreements would expire on or before October 30, 1985. Id. In October 1984, they received
notice to vacate their apartments.
Id.
The Eleventh Circuit held that the plaintiffs’
month-to-month tenancies at will qualified as property interests under Florida law. Id. at 152829. It agreed with the development agency that the plaintiffs received the 15-day notice required
for terminating the tenancies under Florida law, but determined that the development agency had
taken the property interests in violation of the Fifth Amendment when it failed to comply with
other requirements established under Florida law. Id. at 1529-30. Moreover, the Ward court
determined that the plaintiffs might have a property interest in “material relocation assistance” if
they could not find other appropriate accommodations without undue hardship. Id. at 1531. It
remanded the plaintiffs’ procedural due process claim to the district court to determine whether
the plaintiffs were either deprived of continued occupancy of their apartments in violation of
state law or accommodation assistance mandated under state law. Id. at 1532.
But again, Ward could not have provided Defendant clear notice that his direction to
Plaintiff violated her due process rights. Ward is not a materially similar case to the present one
because it involved no circumstances requiring immediate action, such as a call requesting police
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assistance. Additionally, the evictions at issue in Ward are distinguishable because the landlord,
a development agency, faced legal burdens not applicable to private landlords. The court
recognizes that Ward held month-to-month tenancies at will are protectable property interests
under Florida law. However, Ward includes no discussion regarding whether a police officer
may instruct a person to leave his or her leasehold under exigent circumstances without a
pre-deprivation hearing. Therefore, that opinion could not have provided Defendant clear notice
that his conduct on August 24, 2016 violated Plaintiff’s procedural due process rights.
In addressing an analogous procedural due process claim against a deputy sheriff who
directed a plaintiff to leave a property despite his claim of an ownership interest, the First Circuit
observed that the plaintiff’s due process “argument essentially invites us to hold, as a matter of
constitutional law, that a police officer, summoned to mediate a volatile dispute involving an
alleged trespasser, is obliged to leave the situation unresolved simply because the trespasser
represents himself to be entitled to be there.
To state the proposition is to expose its
foolishness.” Higgins v. Penobscot Cty. Sheriff’s Dep’t, 446 F.3d 11, 15 (1st Cir. 2006). That
observation, although blunt, is equally applicable to the situation presented by Plaintiff’s factual
allegations. Because Plaintiff has failed to plead conduct that plausibly violated her clearly
established constitutional rights, Defendant is due to be granted qualified immunity, and this
action is due to be dismissed.
C.
Plaintiff is Not Entitled to a Second Opportunity to Amend the Complaint
Plaintiff has not requested leave to amend her complaint again. (See generally Doc. #
15). Therefore, the court is not required to grant her leave to amend sua sponte. Vibe Micro,
Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018). Additionally, and in any event, the
court finds that any amendment would be futile due to the lack of clearly established law
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prohibiting Defendant from directing Plaintiff to leave the residence under the circumstances
alleged in the Amended Complaint. Thus, this action will be dismissed without leave to amend.
IV.
Conclusion
For the reasons explained above, Defendant’s Motion to Dismiss Plaintiff’s Amended
Complaint (Doc. # 12) is due to be granted, and Plaintiff’s claims are due to be dismissed with
prejudice and without leave to amend. An Order consistent with this Memorandum Opinion will
be entered.
DONE and ORDERED this June 21, 2018.
_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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