Barnes v. Entrekin
MEMORANDUM OPINION AND ORDER GRANTING IN PART and DENYING IN PART 22 MOTION to Dismiss/Alternative Motion for a More Definite Statement as set out herein. Mr. Barnes is hereby ORDERED to file an Amended Complaint in a manner that conforms with the requirements of this Order no later than February 3, 2014. Signed by Judge Virginia Emerson Hopkins on 1/13/2014. (JLC)
2014 Jan-13 PM 04:29
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIKE BOLTON, et al.,
) Case No.: 4:13-CV-619-VEH
MEMORANDUM OPINION AND ORDER
INTRODUCTION AND PROCEDURAL HISTORY
Plaintiff Jerry Barnes (“Mr. Barnes”) initiated this civil rights case on April 4,
2013. (Doc. 1). On July 17, 2013, Mr. Barnes filed an amended complaint (Doc. 17),
and asserted claims, arising out of a law enforcement incident which occurred at his
home on or about November 17, 2012, (Doc. 17 ¶ 7) against “various governmental
officials assigned to work for the Etowah County Drug Task Force” (id. ¶ 6) under
42 U.S.C. § 1983. According to the case caption, the named defendants are: Scott
Lumpkin, Mike Bolton, Tim Waldrop, Cole Lumpkin, and Clark Thompson. (Doc.
17 at 1).
Pending before the court is Defendant Tim Waldrop’s (“Mr. Waldrop”)
Motion To Dismiss/Alternative Motion for a More Definite Statement (Doc. 22) (the
“Motion”) filed on November 15, 2013. In his Motion, Mr. Waldrop seeks a Rule
12(b)(6) dismissal on the basis of qualified immunity or, alternatively, a more definite
statement of Mr. Barnes’s claims. (Doc. 22 at 1).
On November 22, 2013, Mr. Barnes opposed the Motion. (Doc. 23). Mr.
Waldrop replied on November 27, 2013. (Doc. 24). Accordingly, the Motion is now
under submission. For the reasons explained below, the Motion is GRANTED IN
PART and DENIED IN PART.
Motion To Dismiss
A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed.
R. Civ. P. 12(b)(6). The Federal Rules of Civil Procedure require only that the
complaint provide “‘a short and plain statement of the claim’ that will give the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it
rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 545 (2007); see also Fed. R. Civ. P. 8(a).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
Twombly, 550 U.S. at 545 (quoting Conley, 355 U.S. at 47). However at the same
time, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “[O]nce a claim has
been stated adequately, it may be supported by showing any set of facts consistent
with the allegations in the complaint.” Twombly, 550 U.S. at 563.
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 129 S. Ct. at 1950. “While legal conclusions can provide
the framework of a complaint, they must be supported by factual allegations.” Iqbal,
129 S. Ct. at 1950. “When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.” Id. (emphasis added). “Under Twombly’s construction of Rule
8 . . . [a plaintiff’s] complaint [must] ‘nudge [any] claims’ . . . ‘across the line from
conceivable to plausible.’ Ibid.” Iqbal, 129 S. Ct. at 1950-51.
A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.”Id. (quoting Twombly, 550 U.S. at 556).
Motion For More Definite Statement
Rule 12(e) of the Federal Rules of Civil Procedure provides:
A party may move for a more definite statement of a pleading to which
a responsive pleading is allowed but which is so vague or ambiguous
that the party cannot reasonably prepare a response. The motion must be
made before filing a responsive pleading and must point out the defects
complained of and the details desired. If the court orders a more definite
statement and the order is not obeyed within 14 days after notice of the
order or within the time the court sets, the court may strike the pleading
or issue any other appropriate order.
Fed. R. Civ. P. 12(e).
Qualified immunity may be claimed by an individual defendant who is being
sued personally for actions that he or she took while acting under color of state law.
Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). Qualified immunity is a question of
law to be decided by the court prior to trial. It is designed to allow officials who are
entitled to qualified immunity to avoid the expense and disruption of going to trial,
and is not merely a defense to liability. Ansley v. Heinrich, 925 F.2d 1339, 1345 (11th
The Supreme Court has referred to the qualified immunity analysis as the
“objective-reasonableness” test. Harlow, 457 U.S. at 815-19. Under this test, public
officials performing discretionary functions which would objectively appear to be
within the official’s authority have qualified immunity if the challenged conduct did
not violate a clearly established constitutional right of which a reasonable person
would have known, given the circumstances and information possessed by the official
at the time of the conduct. Id. at 818.
The objective-reasonableness test is a two-part analysis. First, the defendant
public official must prove that he was performing duties within the scope of his
discretionary authority when the alleged violation occurred. Hutton v. Strickland, 919
F.2d 1531, 1537 (11th Cir. 1990). A government official may prove that he was
acting within the scope of his authority by showing facts and circumstances that
would indicate that his actions were part of his normal job duties and were taken in
accordance with those duties. Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988);
see also Cronen v. Texas Dep't of Human Services, 977 F.2d 934, 939 (5th Cir. 1992)
(“An official acts within his discretionary authority when he performs non-ministerial
acts within the boundaries of his official capacity.”).
Once the defendant proves that he was acting within his discretionary authority,
the burden then shifts to the plaintiff to prove that the defendant did not act in good
faith. Hutton, 919 F.2d at 1537. The plaintiff may meet this burden by establishing
that “the defendant public official’s actions ‘violated clearly established constitutional
law.’” Id. (citations omitted). The second prong of the objective-reasonableness test
has two sub-parts. Id. at 1538. First, the court must find that the constitutional law in
question was clearly established when the alleged violation occurred. Id. Second, the
court must find that “there is a genuine issue of fact regarding the government
official’s engaging in conduct violative of the clearly established law.” Id.
“Clearly established” means that “[t]he contours of the [violated] right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). This is not to
say that an official action is protected by qualified immunity unless the very action
in question has previously been held unlawful, but it is to say that in light of the
preexisting law the unlawfulness must be apparent. Id. Under this standard, qualified
immunity is available to protect “all but the plainly incompetent or those who
knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
To defeat a qualified immunity defense, the plaintiff bears the burden of
showing that the “legal norms allegedly violated by the defendant were clearly
established at the time of the challenged actions or, . . . the law clearly proscribed the
actions the defendant took.” Barts v. Joyner, 865 F.2d 1187, 1190 (11th Cir. 1989),
cert. denied, 493 U.S. 831 (1989) (quoting Mitchell v. Forsyth, 472 U.S. 511, 528
In determining whether the plaintiff meets this burden in the context of a
motion to dismiss, the court is guided by the Eleventh Circuit’s holding in Randall
v. Scott, 610 F.3d 701 (11th Cir. 2010), which clarifies that the heightened pleading
rule no longer applies to civil rights cases in which a qualified immunity defense is
While Swann, GJR, and Danley reaffirm application of a
heightened pleading standard for § 1983 cases involving defendants able
to assert qualified immunity, we agree with Randall that those cases
were effectively overturned by the Iqbal court. Pleadings for § 1983
cases involving defendants who are able to assert qualified immunity as
a defense shall now be held to comply with the standards described in
Iqbal. A district court considering a motion to dismiss shall begin by
identifying conclusory allegations that are not entitled to an assumption
of truth-legal conclusions must be supported by factual allegations. The
district court should assume, on a case-by-case basis, that well pleaded
factual allegations are true, and then determine whether they plausibly
give rise to an entitlement to relief. . . .
After Iqbal it is clear that there is no “heightened pleading
standard” as it relates to cases governed by Rule 8(a)(2), including civil
rights complaints. All that remains is the Rule 9 heightened pleading
Randall, 610 F.3d at 709-10 (emphasis added) (footnote omitted).
Mr. Barnes’s amended complaint is a quintessential shotgun pleading, a
practice which is strongly disfavored by the Eleventh Circuit. See, e.g., Davis v.
Coca-Cola Bottling Co. Consol., 516 F.3d 955, 979 & n.54 (11th Cir. 2008) (“The
complaint is a model ‘shotgun’ pleading of the sort this court has been roundly,
repeatedly, and consistently condemning for years, long before this lawsuit was
For example, Mr. Barnes has confusingly lumped all of his purported
Fourteenth Amendment claims together under one count:
Count 1 – Violations of Fourteenth Amendment
By seizing Plaintiff’s person and property without probable cause
and without a warrant, Defendants violated Plaintiff’s right to be
free from unreasonable seizures in violation of the rights
guaranteed by the 4th Amendment and incorporated against the
states by the 14th Amendment.
By searching Plaintiff’s home without probable cause and without
a warrant, Defendants violated Plaintiff’s right to be free from
unreasonable searches in violation of the rights guaranteed by the
Davis footnote 54 gives numerous examples of Eleventh Circuit anti-shotgun references
and states in full:
See, e.g., United States ex el. Atkins v. McInteer, 470 F.3d 1350, 1354 n. 6
(11th Cir.2006); M.T.V. v. DeKalb County Sch. Dist., 446 F.3d 1153, 1156 n. 1 (11th
Cir.2006); Ambrosia Coal and Constr. Co. v. Morales, 368 F.3d 1320, 1330 n. 22
(11th Cir.2004); Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305
F.3d 1293, 1296 nn. 9–10 (11th Cir.2002); Byrne v. Nezhat, 261 F.3d 1075, 1128–34
(11th Cir.2001); Magluta v. Samples, 256 F.3d 1282 (11th Cir.2001); BMC Indus.,
Inc. v. Barth Indus., Inc., 160 F.3d 1322, 1326–27 n. 6 (11th Cir.1998); GJR Invs.,
Inc. v. County of Escambia, 132 F.3d 1359, 1368 (11th Cir.1998); Cramer v. Florida,
117 F.3d 1258, 1263 (11th Cir.1997); Ibrahimi v. City of Huntsville Bd. of Educ., 114
F.3d 162 passim (11th Cir.1997); Anderson v. Dist. Bd. of Trustees of Cent. Fla.
Cmty. Coll., 77 F.3d 364, 366–67 (11th Cir.1996); Beckwith v. City of Daytona
Beach Shores, 58 F.3d 1554, 1567 (11th Cir.1995); Cesnik v. Edgewood Baptist
Church, 88 F.3d 902, 905 (11th Cir.1996); Oladeinde v. City of Birmingham, 963
F.2d 1481, 1483–84 (11th Cir.1992); Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th
Cir.1991); T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1543–44 n. 14 (11th
Cir.1986) (Tjoflat, J., dissenting). This list is just a teaser—since 1985 we have
explicitly condemned shotgun pleadings upward of fifty times.
Davis, 516 F.3d at 979 n.54.
4th Amendment and incorporated against the states by the 14th
By dragging Plaintiff from his home, striking him, and
threatening him with death, Defendants employed excessive force
By threatening Plaintiff with death or bodily harm for answering
his own door with a gun in his hand, Defendants had a chilling
effect on Plaintiff’s right to keep and bear arms as guaranteed by
the Second Amendment as applied against the states by the 14th
(Doc. 17 ¶¶ 30-33).
Moreover, because Mr. Barnes has filed a shotgun pleading, it is impossible to
ascertain which specific claims are asserted against which specific defendants and in
which of their capacities.2 Instead, Mr. Barnes has ambiguously alleged “Defendants”
collectively throughout his pleading. This vagueness makes an evaluation of the
defense of qualified immunity impractical as to each one of the defendants that are
separately identified only in the lawsuit’s case caption, and even listed there without
A § 1983 claim against a person in her official capacity seeks to impose liability on the
entity which she represents, and not on her personally. See, e.g., Welch v. Laney, 57 F.3d 1004, 1008
(11th Cir. 1995) (“Welch's action against the Sheriff and Chief Deputy Sheriff in their official
capacities imposes liability on the entity they represent, and not on them as individuals.” (citing
Brandon v. Holt, 469 U.S. 464, 471-72, 105 S. Ct. 873, 877-78, 83 L. Ed. 2d 878 (1985))). In
contrast, a claim asserted against a public official in his personal capacity seeks a recovery from that
defendant on an individualized basis. See, e.g., Young Apartments, Inc. v. Town of Jupiter, 529 F.3d
1027, 1047 (11th Cir. 2008) (“In a § 1983 action, ‘[i]t is well-settled that qualified immunity only
protects public officials from lawsuits brought against them in their individual capacity.’” (quoting
Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1184 n.16 (11th Cir. 1994))).
clarifying in which capacities.3
Therefore, due to the shotgun nature of Mr. Barnes’s complaint, the court is illequipped to address the merits of Mr. Waldrop’s efforts to obtain a Rule 12(b)(6)
dismissal of this lawsuit on the basis of qualified immunity, and that portion of Mr.
Waldrop’s Motion is DENIED. The court agrees with Mr. Waldrop that requiring Mr.
Barnes to provide a more definite statement of his claims is appropriate, and, as a
result, the alternative portion of his Motion is GRANTED.
In repleading, Mr. Barnes must study the Davis decision and the numerous
cases cited therein and draft a much more definite and comprehendible pleading. The
claims against each Defendant must be set forth in separately numbered counts, and
Mr. Barnes must clarify whether he is suing each Defendant personally, officially, or
in both capacities. Further, Mr. Barnes’s restated pleading must include only
plausibly stated claims and refrain from stringing multiple claims together within the
Therefore, for the reasons stated above, the Motion is GRANTED with respect
to the alternative relief requested by Mr. Waldrop and otherwise is DENIED. Further,
Mr. Barnes cannot use his brief as a means to amend or restate his pleading.
Mr. Barnes is ORDERED to file an amended complaint in a manner that conforms
with the requirements of this order no later than February 3, 2014.
DONE and ORDERED this 13th day of January, 2014.
VIRGINIA EMERSON HOPKINS
United States District Judge
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