Jaggars v. City of Sheffield Alabama et al

Filing 16

MEMORANDUM OPINION. Signed by US Magistrate Judge T Michael Putnam on 5/21/2014. (MSN)

FILED
2014 May-21 PM 02:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
REBECCA DARINE JAGGARS,
Plaintiff,
v.
CITY OF SHEFFIELD, ALABAMA, and
C.M. ERGLE,
Defendants.

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Case No. 3:14-cv-158-TMP

MEMORANDUM OPINION
This cause is before the court on the motion to dismiss filed on February 5, 2014, by the
defendants, the City of Sheffield and C.M. Ergle. Defendants seek dismissal of all of plaintiff=s
claims pursuant to Federal Rule of Civil Procedure 12(b)(6) and Alabama Code Sections 11-47-23
and 11-47-192. This matter has been fully briefed. The court has considered the pleadings and
the arguments set forth by both parties, and the parties have consented to the exercise of
jurisdiction by the undersigned pursuant to 28 U.S.C. ' 636(c).

BACKGROUND
Plaintiff Rebecca Darine Jaggars brought this action in the Circuit Court for Colbert
County, Alabama, pursuant to 42 U.S.C. ' 1983 and Alabama state law, seeking compensatory and
punitive damages and attorneys= fees. It was removed to this court by the defendants on the basis
of federal question jurisdiction. 28 U.S.C. § 1331. Plaintiff contends that the defendants

wrongfully arrested her, engaged in an unlawful search and seizure, and wrongfully refused to
return property to her for a period of 42 days.
Jaggars' claims arise from a traffic incident that occurred on August 21, 2012, in which
plaintiff was charged with operating a motor vehicle while under the influence of a substance that
impaired her mental or physical faculties. (Doc. 1-1; Complaint, Ex. A).

She alleges that the

City, acting through Sheffield Police Officer C.M. Ergle, falsely arrested her without probable
cause and, pursuant to a wrongful search, seized 168 hydrocodone pills and 84 Carisoprodol pills. 1
(Doc. 1-1; Complaint; Ex. E). Jaggars alleges generally that the arrest, search and seizure were
"all without probable cause," and were pursuant to a "policy, practice, and procedure" of the
defendant City. She asserts that the arrest, search, and seizure violated her Fourth, Fifth, and
Fourteenth Amendment rights under the Constitution, and also were violative of state law.
Jaggars’ complaint provides scant factual allegations. Attached to the complaint as an
exhibit, however, is a copy of the arrest report, which indicates that Ergle reported that he was
notified by a Florence police officer that Jaggars was driving "very bad" before she crossed the
bridge connecting Florence and Sheffield. Ergle arrested Jaggars after she parked at a Sheffield
apartment complex. 2 His narrative description of the incident in the arrest report states the
following:

1

Online medical dictionaries define hydrocodone as an opioid prescribed for pain,
and Carisoprodol as an analgesic and skeletal muscle relaxant.
2

Because the plaintiff attached the arrest report as an exhibit to her complaint, the
court must consider it part of the complaint for all purposes, including assessing the factual
allegations pleaded by the plaintiff. See Fed. R. Civ. P. 10(c); Associated Builders, Inc. v.
Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974) (“If the appended document, to be treated as
part of the complaint for all purposes under Rule 10(c), Fed.R.Civ.P., reveals facts which foreclose
recovery as a matter of law, dismissal is appropriate.”); Griffin Indus., Inc. v. Irvin, 496 F.3d 1189,
1206 (11th Cir. 2007) (“[W]hen the exhibits contradict the general and conclusory allegations of

Received a call that a Florence officer was following a white Dodge Avenger
across O’Neal Bridge onto Hatch [Boulevard]. Subject was driving very bad.
She had been through two yards. When Officer Ergle arrived she was still sitting
in vehicle in parking space at Colbert Square Apartments. Witness Officer Terry
Rhea states to me that she was very erratic and that he could see her slapping her
face. Officer Ergle spoke with the subject and she was unsure on her feet. She
was slurring her words badly. She admits to taking Zanex. She was asked to
perform the walk forward and count two. She did not stop at two until Officer
stopped her. She could not walk a straight line. She had problems with following
small orders. On the GNT her pupil’s [sic] began to bounce just past the 15 degree
mark. The bounce was very pronounced.

(Ex. B to Complaint, Doc. 1-1, p. 14 of 19). As a result of the stop, plaintiff was arrested for a
violation of Alabama law for driving under the influence of an unknown substance which impaired
her ability to drive safely. See Alabama Code § 32-5A-191(a)(5) (1975), as incorporated by Sec.
30-4 of the Sheffield Code of Ordinances.

Pursuant to the arrest, Officer Ergle searched

plaintiff’s car and found 168 hydrocodone pills and 84 carisoprodol tablets. Plaintiff was not
charged with any offense related to the drugs, but the drugs were seized and never returned to her.
On April 15, 2013, on motion by the City of Sheffield, the driving under the influence charge
against plaintiff was dismissed. (Ex. D to Complaint, Doc. 1-1, p. 16 of 19). On May 28, 2013,
plaintiff filed a verified statement of claim against the City of Sheffield pursuant to Alabama Code
§§ 11-47-190 and -192 (1975).
The defendants assert that the claims set forth under Section 1983 are due to be dismissed
because they fail to state a claim and because the city is not liable under Monell v. Department of
Social Services, 436 U.S. 658, 691-92 (1978). Defendants further contend that the state-law tort
the pleading, the exhibits govern.”). Even so, the court need not read the contents of the arrest
report as “true,” but only that such were the facts believed by Officer Ergle, even if he was
mistaken about them.
3

claims against the city are barred by the notice provisions of Alabama Code '' 11-47-23 and
11-47-192, and the city is not liable for any punitive damages.

Her complaint alleges three

causes of action: Count One against both defendants for Aviolation@ of 42 U.S.C. '1983; Count
Two against both defendants alleging state-law claims for "wrongfully arresting" plaintiff and
"neglectfully, carelessly or unskillfully searching" plaintiff, retaining the pills, and committing
Aactual negligence;@ and Count Three against the City for negligent hiring, training, supervision,
and retention of Ergle. 3

DISCUSSION
Before the Supreme Court decided Bell Atlantic v. Twombly, 550 U.S. 544, 127 S. Ct.
1955, 167 L. Ed. 2d 929 (2007), a court could dismiss a complaint only where it was clear that “no
relief could be granted under any set of facts that could be proved consistent with the allegations,@
as set forth in Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). The
well-established Rule 12(b)(6) standard set forth in Conley was expressly rejected in Twombly,
when the Supreme Court examined the sufficiency of a plaintiff=s complaint and determined:
Federal Rule of Civil Procedure 8(a)(2) requires only Aa short and plain statement
of the claim showing that the pleader is entitled to relief,@ in order to Agive the
defendant fair notice of what the ... claim is and the grounds upon which it rests,@
Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff's obligation to provide the Agrounds@ of his
3

The complaint fails to recite whether Ergle is sued in his individual capacity or in
his official capacity. The complaint also names several fictitious defendants, who are disregarded
in federal court. The court assumes that the complaint sets forth claims against Ergle in both his
individual and official capacities.
4

Aentitle[ment] to relief@ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level.

550 U.S. at 555 (citations omitted). The Court went on to criticize Conley, stating that A[t]he >no
set of facts= language has been questioned, criticized, and explained away long enough@ by courts
and commentators, and Ais best forgotten as an incomplete, negative gloss on an accepted pleading
standard: once a claim has been stated adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.@ 550 U.S. at 562-63.

The Supreme Court

emphasized, however, that Awe do not require heightened fact pleading of specifics, but only
enough facts to state a claim to relief that is plausible on its face.@ 550 U.S. at 570. The Supreme
Court expanded on the Twombly standard when it decided Ashcroft v. Iqbal, 556 U.S. 662, 129 S.
Ct. 1937, 1949B50, 173 L. Ed. 2d 868 (2009), reiterating the Twombly determination that a claim
is insufficiently pleaded if it offers only Alabels and conclusions@ or Aa formulaic recitation of the
elements of a cause of action.@ Iqbal, 129 S. Ct. at 1949. The Court further explained:

Two working principles underlie our decision in Twombly. First, the tenet that a
court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.... 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. Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss. Determining whether a complaint
states a plausible claim for relief will, as the Court of Appeals observed, be a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has
alleged--but it has not Ashow[n]@--Athat the pleader is entitled to relief.@

5

Iqbal, 129 S. Ct. at 1949B50 (citation omitted). See also Sinaltrainal v. CocaBCola Co., 578
F.3d 1252, 1261 (11th Cir. 2009), overruled on other grounds by Mohamad v. Palestinian
Authority, ___ U.S. ___, 132 S. Ct. 1702, 182 L. Ed. 2d 720 (2012) (AThe mere possibility the
defendant acted unlawfully is insufficient to survive a motion to dismiss@ and Athe well-pled
allegations must nudge the claim >across the line from conceivable to plausible=@ (quoting Iqbal
and Twombly)). Applying these standards, the court examines the merits of the defendants=
motion to dismiss. 4
A. Claims Brought Pursuant to Section 1983
1. Failure to Plead a Factual Basis
The plaintiff asserts in Count One of her complaint that the defendants violated her Fourth,
Fifth, and Fourteenth Amendment rights, but does not otherwise describe or identify the particular

4

Plaintiff has not made the argument advanced in some cases that, because she
pleaded her complaint under state pleading standards before being removed to federal court, the
Twombly standard does not apply to her complaint and that its sufficiency must be evaluated using
state pleading standards. The majority rule seems to be, however, that federal pleading standards,
including Twombly/Iqbal, apply to removed complaints. See Stuhlmacher v. Home Depot
U.S.A., Inc., 2011 WL 1792853 (N.D. Ind. May 11, 2011); Henderson v. Food Lion, Inc., 1991
U.S. App. LEXIS 96, at *6–7, 1991 WL 644 (4th Cir. Jan. 7, 1991) (unpublished); Sibel Prods. v.
Gaming Partners Int'l Corp., 2009 U.S. Dist. LEXIS 119703, at *6–7, 2009 WL 5166211 (S.D. Ill.
Dec. 23, 2009); Lin v. Chase Card Servs., 2010 U.S. Dist. LEXIS 29120, at *7 n. 2, 2010 WL
1265185 (D.N.J. Mar. 26, 2010); Maness v. Boston Scientific, 2010 U.S. Dist. LEXIS
118748, *10, 2010 WL 4629984 (E.D. Tenn. Nov. 4, 2010) (stating that, pursuant to Rule 81(c),
Rule 8(a)(2) and Twombly's plausibility standard apply to evaluate the substantive sufficiency of a
complaint after removal to federal court); Wendell v. Johnson & Johnson, 2010 U.S. Dist. LEXIS
4188, at *7, 2010 WL 271423 (N.D. Cal. Jan. 20, 2010) (“Rule 12(b)(6) motion considers the
substantive sufficiency of the pleadings as if the action had never been in state court.”). Indeed,
plaintiff herself cites the Twombly/Iqbal pleading standard, arguing that she has met it. See Doc.
7, pp. 2-3)

6

rights violated. 5 The “factual” allegations of the complaint assert only that she was subjected to
“wrongful arrest, wrongful search, wrongful seizure, all without probable cause, and the wrongful
retention of plaintiffs [sic] lawful medication,… and wrongfully prosecuting plaintiff….” See
Complaint, Doc. 1-1, ¶ 12.

Defendants seek dismissal of the claims purporting to allege

violations of the Fifth and Fourteenth Amendments, asserting that the only wrongdoing she alleges
must be examined as claims brought under the Fourth Amendment, made applicable to the states
through the Fourteenth Amendment. The court agrees that the conduct complained of -- a traffic
stop that resulted in an arrest, search, and seizure -- constitute claims that arise under the Fourth
Amendment, and are not cognizable as claims alleging separate violations of due process under the
Fifth Amendment. See Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968);
Albright v. Oliver, 510 U.S. 266, 273–74, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994); see, e.g., Uboh
v. Reno, 141 F.3d 1000, 1003 (11th Cir.1998) (characterizing a malicious prosecution claim as
being based on the Fourth rather than Fourteenth Amendment); Dorsey v. Wallace, 134 F. Supp.
2d 1364, 1374 (N.D. Ga. 2000). The proper analysis of these claims, at this juncture, is whether
the complaint sets forth a factual allegation that Ergle had no reasonable suspicion that Jaggars was
engaged in criminal activity when he arrested her and seized her pills. 6 See Reid v. Georgia, 448
U.S. 438, 440, 100 S. Ct. 2752, 65 L. Ed. 2d 890 (1980).
5

Although the complaint asserts that the defendants Aviolated@ ' 1983, it is clear that
'1983 Ais not itself a source of substantive rights@ but instead provides a Amethod for vindicating
federal rights elsewhere conferred.@ Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S. Ct. 2689,
61 L. Ed. 2d 433 (1979). The violation of federal law alleged is that she was subjected to an
illegal arrest, search, and seizure.
6

Defendant Ergle has not raised the issue of qualified immunity. Accordingly, the
court does not address whether there was arguable probable cause for the arrest.
7

It is well established that an individual has a right to be free from Aunreasonable searches
and seizures@ and that the Areasonableness@ of a search or arrest is Adetermined by the presence or
absence of probable cause for the arrest.@ Skop v. City of Atlanta, 485 F.3d 1130, 1137 (11th Cir.
AProbable cause to arrest exists when law enforcement officials have facts and

2007).

circumstances within their knowledge sufficient to warrant a reasonable belief that the suspect had
committed or was committing a crime.@ Id. The defendants argue that the claims brought
pursuant to ' 1983 are due to be dismissed as insufficiently pleaded because the plaintiff does not
provide any factual support for the requisite showing that the arrest, search, or seizure was done
without probable cause. (Doc. 5, p. 12-14). In response to the motion to dismiss, plaintiff argues
that the claim is sufficiently pleaded because the complaint, at paragraph 12, alleges that the
wrongful arrest, search and seizure were Aall without probable cause.@ (Doc. 7, p. 3). The
complaint does recite that the defendants acted without probable cause; however, the use of that
phrase is not sufficient to meet the factual pleading standard of Twombly and its progeny. The
statement is not a factual allegation; it is purely a legal conclusion, which, under Iqbal, is not an
allegation that the court must accept as true in deciding a Rule 12(b)(6) motion. The court must
accept as true only well-pleaded factual allegations. Iqbal, 129 S. Ct. at 1949.
In this case, the plaintiff=s complaint and the arrest report attached thereto as Exhibit B
constitute the factual pleadings. The arrest report (Doc. 1-1, Ex. B), explicitly sets forth facts that
provide probable cause for the arrest: that a police officer from the adjacent city of Florence 7

7

The court takes judicial notice that the O=Neal Bridge referenced in the arrest report
spans the Tennessee River, which separates the City of Florence, located in Lauderdale County on
the north side of the river, from the City of Sheffield, located in Colbert County on the south side.
8

reported that the plaintiff had been Adriving very bad@ and had Abeen through two yards.@ The
verified statement of claim the plaintiff filed with the City, which also is attached to the complaint
as Exhibit E, further describes the incident and does not allege any facts that provide evidence that
the arrest was made without probable cause. (Doc. 1-1).
The plaintiff has not alleged any facts that plausibly show that her arrest and the seizure of
a large quantity of prescription drugs were illegal or not based on probable cause. Under
Twombly, the plaintiff=s complaint fails to state facts that, if taken on their face, would entitle her
to relief. Indeed, the arrest report attached as an exhibit to the complaint affirmatively shows that
Officer Ergle possessed probable cause to make the arrest. Not only had he received reports of
plaintiff’s erratic driving from a Florence police officer and Officer Rhea, he confirmed for
himself that plaintiff was too impaired to drive. 8 Based on that probable cause, Officer Ergle’s
arrest of the plaintiff did not violate the Fourth Amendment. Additionally, upon arresting her for
driving under the influence, Officer Ergle properly searched the automobile in which she was
seated and seized a large quantity of prescription pills, including hydrocodone. Arizona v. Gant,
556 U.S. 332, 335, 129 S. Ct. 1710, 1714, 173 L. Ed. 2d 485 (2009) (“[W]e also conclude that
8

It should be noted that no traffic stop occurred. The facts stated in the exhibits
show that plaintiff already had stopped and parked in a parking lot when Officer Ergle approached
her. When he did so, he had a reasonable and articulable suspicion that she was driving while
impaired by some substance, based upon the reports he had received from the Florence officer, and
thus, under Terry and Berkemer v. McCarty, properly conducted an investigative detention to
determine whether plaintiff violated the law against driving under the influence. His observation
of her slurred speech and inability to walk a straight line created probable cause for the arrest.
“Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose
‘observations lead him reasonably to suspect’ that a particular person has committed, is
committing, or is about to commit a crime, may detain that person briefly in order to ‘investigate
the circumstances that provoke suspicion.’ United States v. Brignoni–Ponce, 422 U.S. 873, 881,
95 S. Ct. 2574, 2580, 45 L. Ed. 2d 607 (1975).” Berkemer v. McCarty, 468 U.S. 420, 439, 104
S. Ct. 3138, 3150, 82 L. Ed. 2d 317 (1984)
9

circumstances unique to the automobile context justify a search incident to arrest when it is
reasonable to believe that evidence of the offense of arrest might be found in the vehicle.”).
Because there was probable cause to believe plaintiff was under the influence of some substance,
the drugs found in the car were themselves evidence of her offense of DUI and, thus, properly
seized as such.
It is clear even from the scant facts pleaded by the plaintiff, notwithstanding her conclusory
allegations to the contrary, there was probable cause to arrest her for DUI, to search her car
incident to the arrest, and to seize the pills found in it. Other than her conclusory assertions that
no probable cause existed, she has pleaded no facts except those recited in the exhibit attached to
the complaint, and those facts plainly show an initial articulable suspicion warranting further
investigation which blossomed into full probable cause to believe that she drove under the
influence of a substance then unknown. A search of the car to locate the potential substance was
justified under Gant, and the seizure of the pills as evidence was proper. None of these actions by
Officer Ergle violated plaintiff’s Fourth Amendment rights. 9

9

Also, insofar as plaintiff attempts to allege a constitutional violation sounding in
due process arising from the City’s failure to return her drugs, her claim would be one for
procedural due process relating to a deprivation of property. There is no denial of due process,
however, if plaintiff has a procedure under state law through which she can seek return of or
compensation for the loss of her property. “So long as the State provides adequate
post-deprivation remedies, ‘due process d[oes] not require pre-deprivation hearings where the
holding of such a hearing would be impracticable, that is, where the deprivation is the result of
either a negligent or an intentional deprivation of property.’ McKinney v. Pate, 20 F.3d 1550,
1562–63 (11th Cir. 1994) (en banc).” National Ass'n of Boards of Pharmacy v. Board of Regents
of the Univ. Sys. of Georgia, 633 F.3d 1297, 1317 (11th Cir. 2011). It is only when the state fails
to provide a remedy for a deprivation of property that a constitutional due process violation occurs.
“[E]ven when a plaintiff has “suffered a procedural deprivation at the hands of [the state], he has
not suffered a violation of his procedural due process rights unless and until the State ... refuses to
make available a means to remedy the deprivation.” Flint Elec. Membership Corp. v. Whitworth,
10

Accordingly, the motion to dismiss is due to be granted as to the Fourth Amendment claims
against both defendants. 10
2. The City=s Liability under Monell v. Department of Social Services
The defendant City also seeks dismissal of plaintiff=s claims against it pursuant to the
Supreme Court’s decision in Monell v. Department of Social Services of New York, 436 U.S. 658,
691-92 (1978). A municipality cannot be liable for a constitutional tort under ' 1983 unless the
deprivation of the constitutional right occurred as a result of an official policy or custom of the
governmental body. Monell, 436 U.S. at 690-91 (1978).

This means that Aa municipality

cannot be held liable under ' 1983 on a respondeat superior theory.@ 436 U.S. at 691. The

68 F.3d 1309, 1313 (11th Cir. 1995) modified, 77 F.3d 1321 (11th Cir. 1996) (quoting McKinney
v. Pate, 20 F.3d 1550, 1563 (11th Cir. 1994) (en banc)) (italics in original). Alabama law
recognizes in rem actions by claimants for the return of property seized by municipal law
enforcement agencies. See Green v. City of Montgomery, 55 So. 3d 256 (Ala. Civ. App. 2009).
Thus, because Alabama provides a post-deprivation remedy for the return of seized property,
plaintiff has suffered no due process violation. There is process available to her, and she cannot
state a claim for denial of procedural due process with respect to the seizure and retention of her
drugs.
10

Some courts have held that when a complaint pleaded under less stringent state
pleading standards is removed to federal court and dismissed under the more stringent
Twombly/Iqbal standards, the plaintiff should be given leave to amend. See, e.g., Stuhlmacher v.
Home Depot U.S.A., Inc., 2011 WL 1792853 (N.D. Ind. May 11, 2011). The court does not
believe that is necessary here for several reasons. First, in responding to the motion to dismiss,
plaintiff has not argued that she relied on less stringent state pleading standards when she framed
her complaint. Rather, she cites Twombly/Iqbal and contends that her pleading complies with it.
Where the plaintiff does not assert some unfairness in the application of the Twombly/Iqbal
standard to her complaint, allowing her to amend after the dismissal of her complaint appears to be
giving her two bites at the apple. Second, under Fed. R. Civ. P. 15(a)(1)(B), plaintiff could have
amended her complaint as a matter of course within 21 days after the filing of the Rule 12(b)(6)
motion to dismiss, but she did not do so. Plaintiff had an adequate opportunity to amend the
complaint to cure any pleading defects after they were brought to her attention by the motion, but
she elected not to, and after forgoing that opportunity, there seems to be little reason to allow her to
do so now.
11

Eleventh Circuit Court of Appeals has further determined that a municipality may be liable under
' 1983 for the actions of a police officer only when the city=s Aofficial policy@ caused the violation.
Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998).
In order to survive a motion to dismiss the Fourth Amendment claims, the plaintiff must
have pleaded some facts that allege that the city had a policy, custom, or procedure of unlawfully
arresting or searching persons during traffic stops, or that the city had a policy or practice of
illegally seizing property obtained in searches. A plaintiff may not survive a well-supported
motion to dismiss by Asimply put[ing] forth vague and conclusory allegations alleging the
existence of an official policy.@ Perez v. Metropolitan Dade County, 2006 WL 4056997 *2 (S.D.
Fla. April 28, 2006).

A[T]o withstand a motion to dismiss, a plaintiff must allege: (1) an

unofficial practice; (2) though repeated acts; (3) of a final policymaker of the [entity]; (4) that is
permanent and well settle[d]; (5) about which the [entity=s] final policymakers knew and failed to
stop.@ Moore v. Miami-Dade County, 2007 WL 4644629 *6 (S.D. Fla. Dec. 10, 2007).
In the instant case, plaintiff has failed to offer any facts to support her claim by defining or
describing in any way the policy or practice she alleges was in force in Sheffield. See, e.g., Neveu
v. City of Fresno, 392 F. Supp. 2d, 1159, 1178 (E.D. Cal. 2005). Again, the plaintiff uses the
phrase that the city had a Apolicy, practice, and procedure@ but fails to allege any fact B another
similar incident, a manual or guideline, or even anecdotal evidence B that would allege a factual
basis under Twombly and Iqbal. Accordingly, the motion to dismiss the ' 1983 claims against the
municipal defendant, the City of Sheffield, is due to be granted. 11
11

To the extent that the plaintiff asserts claims against Ergle in his official capacity,
the claim is a claim against the city and is subject to the same application of Monell.
12

B. State Law Claims
Plaintiff also asserts that she was unlawfully arrested and searched in violation of state law.
(Doc. 1-1, & 18). Count Two of the complaint, labeled simply Astate law claims,@ asserts
generally that the defendants Abreached the applicable statutory [] duties,@ and then cites Alabama
Code ' 11-47-190. 12

The complaint alleges that the defendants Awrongfully arrest[ed],

wrongfully, neglectfully, carelessly or unskillfully search[ed] plaintiff, and retain[ed] personal
property, and committed actual negligence proximately injuring plaintiff.@ (Doc. 1-1, Complaint,
&18). There is no allegation that the defendants acted intentionally, willfully or maliciously. 13
Plaintiff further alleges, as Count Three, that the City is liable for failure to properly hire, retain,
supervise, or train Ergle. (Doc. 1-1, Complaint && 20-22).

Defendants assert that the state-law

claims are due to be dismissed against the City because plaintiff failed to comply with the notice
provisions of Alabama Code '' 11-47-23 and 11-47-192, and that the state-law claims against
both defendants are due to be dismissed because defendants are shielded by state-agent immunity.
1. Notice Requirements for Suit against a Municipality

12

The statute provides: ANo city or town shall be liable for damages for injury done to
or wrong suffered by any person or corporation, unless such injury or wrong was done or suffered
through the neglect, carelessness, or unskillfulness of some agent, officer, or employee of the
municipality engaged in work therefor and while acting in the line of his or her duty....@
13

The code section cited has been deemed to shield municipalities from liability for
the intentional torts of their employees. Brown v. City of Huntsville, 608 F.3d 724 (11th Cir.
2004).
13

The defendants seek dismissal of all tort claims brought by plaintiff under state law on
grounds that the claims are barred by the notice provisions of Alabama Code ' ' 11-47-23 and
11-47-192. Section 11-47-192 provides that A[n]o recovery shall be had against any city or town
on a claim for personal injury received, unless a sworn statement be filed with the clerk by the
party injured or his personal representative in case of his death stating substantially the manner in
which the injury was received, the day and time and the place where the accident occurred and the
damages claimed.@

Section 11-47-23 provides that A[c]laims for damages growing out of torts

shall be presented within six months from the accrual thereof or shall be barred.@
The plaintiff filed a notice of claim with the City of Sheffield on May 28, 2013. She
alleges this fact in her complaint (doc. 1-1, & 14) and she attaches to the complaint a copy of the
notice (doc. 1-1, Ex. E). 14 It is undisputed that the event that gave rise to the complaint (her arrest
and search, and the seizure of the pills) occurred August 21, 2012, and her claims accrued on that
date. Under the governing notice statute, her verified complaint must have been delivered no
later than six months from the accrual of the claim, or by February 21, 2013. Accordingly, her
claim, filed more than nine months after the tort claims accrued against the City, was untimely and
is barred by the limitations period set forth in Alabama Code '11-47-23. 15 The motion to dismiss

14

In her brief filed in opposition to the motion to dismiss, plaintiff argues that she has
made Ano such admission@ regarding failure to comply with the notice provisions of the Alabama
Code. Even so, she admits that the exhibit is the statement of claim filed, and does not dispute the
date that is indicated as the filing date. The exhibit, filed with the complaint, is considered a
factual allegation set forth in the complaint and is considered to be true for purposes of the instant
motion. Fed. R. Civ. P. 10(c).
15

The court expresses no opinion as to whether an in rem action for return of
plaintiff’s seized drugs is barred by the notice statutes. It is at least arguable that her claim for
denial of return of the drugs did not accrue until the criminal case against her was dismissed in
14

the tort claims set forth in Counts Two and Three is due to be granted as to the claims against the
municipal defendant.
2. Immunity from Tort Liability
Assuming that the complaint also alleges tort claims under Alabama law against Ergle in
his individual capacity, Ergle has asserted that he is entitled to immunity pursuant to Alabama
Code ' 6-5-338 (1975). The statute provides that a police officer of any municipality in the state
Ashall have immunity from tort liability arising out of his or her conduct in performance of any
discretionary function within the line and scope of his or her law enforcement duties.@ Id.
Discretionary functions have been deemed to be Athose acts as to which there is no hard and fast
rule as to the course of conduct that one must or must not take, and those acts requiring exercise in
judgment and choice and involving what is just and proper under the circumstances.@ Moore v.
Adams, 754 So. 2d 630, 632 (Ala. 1999), citing Wright v. Wynn, 682 So. 2d 1, 2 (Ala. 1996) and
L.S.B. v. Howard, 659 So. 2d 43 (Ala. 1995).
The Alabama Supreme Court specifically held that the immunity applies to the conduct of
officers in making an arrest or attempting to make an arrest, Swann v. City of Hueytown, 920 So.
2d 1075, 1079 (Ala. 2005); Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000), as well as in the
execution of a search. See Moore, 754 So. 2d at 632 (holding that immunity applied where
officers mistakenly searched a house that was not the house described in the warrant). The
statutory immunity extends not only to the officers, but to the governmental unit that employs

April 2013, when the drugs were no longer considered evidence in the case, so that her August
2013 verified statement of claim may have been timely as to that claim. Whether such a claim
remains viable is a question of Alabama state law, which is dismissed here without prejudice under
28 U.S.C. § 1367(c).
15

them. 16 See Ex parte City of Montgomery, 758 So. 2d 565, 570 (Ala. 1999); see also Key v. City
of Cullman, 2001 WL 1450651, *6-7 (Ala. Civ. App. 2001) (holding that if its police officer is
entitled to immunity under ' 6-5-338, the city also is entitled to immunity); Montgomery v. City of
Montgomery, 732 So. 2d 305 (Ala. Civ. App. 1999) (holding that both the officer and the city were
immune under ' 6-5-338 for arrest of a man who was mistaken for the man named in the warrant).
The immunity shields the officers and the city from liability Aunless [the] actions were
conducted with willful or malicious intent or in bad faith.@ Ex parte City of Montgomery, 758 So.
2d at 570. Where the complaint Afails to allege willfulness, malice, fraud, bad faith, or a mistaken
interpretation of the law,@ state-agent immunity applies. Knight v. Pugh, 801 F. Supp. 2d 1235,
1246 n.6 (M.D. Ala. 2011). As discussed supra, the only allegations made by plaintiff are that the
defendants acted negligently. Ergle, and the City through Ergle, were exercising judgment in the
enforcement of the criminal laws of the state; accordingly, both of the defendants are immune from
liability from the alleged negligence in the arrest, search or seizure of plaintiff by Alabama Code
' 6-5-338, and the defendants= motion to dismiss the negligence claims (Counts Two and Three) is
due to be granted.

CONCLUSION
Based on the foregoing, the motion to dismiss filed by defendants (doc. 4) is due to be
GRANTED, and, except as stated in the next sentence, the claims against the defendant City of
Sheffield and against defendant Ergle in his official and/or individual capacity are DISMISSED
16

Section 6-5-338(b) specifically includes Apeace officers and governmental units or
agencies authorized to appoint peace officers.@
16

WITH PREJUDICE. Insofar as the plaintiff has alleged a state-law in rem claim for the return of
the drugs seized from her, that claim is DISMISSED WITHOUT PREJUDICE pursuant to 28
U.S.C. § 1367(c). A separate Order will be entered.
DATED this 21st day of May, 2014.

________________________________
T. MICHAEL PUTNAM
U.S. MAGISTRATE JUDGE

17