Barnes v. Entrekin

Filing 37

MEMORANDUM OPINION AND ORDER GRANTING IN PART and DENYING IN PART 28 MOTION to Dismiss Plaintiff's Second Amended Complaint and 34 MOTION for Judgment on the Pleadings. Specifically, Counts Four and Five and all claims for declaratory and injunctive relief are DISMISSED with prejudice; all other Counts and claims remain. Signed by Judge Virginia Emerson Hopkins on 5/29/2014. (JLC)

FILED
2014 May-29 PM 02:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
JERRY BARNES,
Plaintiff,
v.
MIKE BOLTON, et al.,
Defendants.

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) Case No.: 4:13-CV-619-VEH
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MEMORANDUM OPINION AND ORDER
I.

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).
Pursuant to this court’s order (Doc. 26), entered on January 13, 2014, Mr. Barnes
filed a second amended complaint (Doc. 27) on February 3, 2014.
The second amended complaint asserts claims under 42 U.S.C. § 1983 (id. ¶
1), arising out of a purported warrantless law enforcement incident which occurred
at Mr. Barnes’s residence on or about November 17, 2012 (Doc. 27 ¶ 11), against
various officers assigned to work for the Etowah County Sheriff’s Office Drug Task
Force. (Id. ¶ 6). According to the second amended complaint, the five named
defendants are: Scott Lumpkin (“Mr. Scott Lumpkin”), Mike Bolton (“Mr. Bolton”),

Tim Waldrop (“Mr. Waldrop”), Cole Lumpkin (“Mr. Cole Lumpkin”), and Clark
Thompson (“Mr. Thompson”). (Doc. 27 at 1; id. ¶¶ 6-10). Mr. Barnes has sued these
five defendants in their personal capacities only.
Mr. Barnes’s second amended complaint contains five counts. Count One is an
illegal seizure claim against all defendants. (Doc. 27 ¶ 41). Count Two is an illegal
seizure claim against an unknown defendant.1 (Id. ¶ 42). Count Three is an illegal
search claim against Mr. Waldrop, Mr. Cole Lumpkin, and Mr. Thompson. (Id. ¶ 43).
Count Four is an excessive force claim against Mr. Waldrop and Mr. Thompson. (Id.
¶ 44). Count Five is a Second Amendment claim against Mr. Waldrop only. (Id. ¶ 45).
Pending before the court is Mr. Waldrop’s Motion To Dismiss Plaintiff’s
Second Amended Complaint (Doc. 28) (the “Rule 12(b)(6) Motion”), filed on
February 14, 2014. In his Rule 12(b)(6) Motion, Mr. Waldrop seeks a dismissal of the
claims asserted against him on the basis of qualified immunity and a dismissal of all
requests for injunctive and declaratory relief as unsustainable as a matter of law.
(Doc. 28 at 1).
Mr. Waldrop filed his supporting brief (Doc. 29) on February 14, 2014. On
February 20, 2014, Mr. Barnes opposed the Motion. (Doc. 31). Mr. Waldrop replied

1

The Eleventh Circuit has observed that normally “fictitious-party pleading is not permitted
in federal court.” Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010).
2

on February 27, 2014. (Doc. 36).
Also pending is a Motion for Judgment on the Pleadings (Doc. 34) (the “Rule
12(c) Motion”) filed by Mr. Bolton, Mr. Scott Lumpkin, Mr. Cole Lumpkin, and Mr.
Thompson on February 25, 2014. These defendants also filed a brief (Doc. 35) in
support of their Rule 12(c) Motion on February 25, 2014. Under appendix III of the
court’s uniform initial order, the deadline for Mr. Barnes to oppose the Rule 12(c)
Motion ran on March 11, 2014 (see Doc. 6 at 23 (“The opponent’s responsive brief
shall be filed no later than fourteen (14) calendar days thereafter.”)). Despite the
existence of this deadline, Mr. Barnes has not responded to the Rule 12(c) Motion.
Accordingly, the Rule 12(b)(6) and Rule 12(c) Motions are both now under
submission. For the reasons explained below, these motions are GRANTED IN
PART and DENIED IN PART.
II.

APPLICABLE STANDARDS
A.

Motion To Dismiss

A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed.
R. Civ. P. 12(b)(6) (“[A] party may assert the following defenses by motion: (6)
failure to state a claim upon which relief can be granted[.]”). 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
3

and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99,
103, 2 L. Ed. 2d 80 (1957) (footnote omitted) (quoting Fed. R. Civ. P. 8(a)(2)),
abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955,
1965, 167 L. Ed. 2d 929 (2007); see also Fed. R. Civ. P. 8(a)(2) (setting forth general
pleading requirements for a complaint to include providing “a short and plain
statement of the claim showing that the pleader is entitled to relief”).
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 555, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47, 78 S.
Ct. at 103). However, at the same time, “it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (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, 127 S. Ct. at 1969.
“[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, 556 U.S. at 679, 129 S. Ct. at 1950. “While legal
conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Id. “When there are well-pleaded factual allegations, a court
4

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, 556 U.S. at 680, 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, 556 U.S. at 678, 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, 127 S. Ct. at 1965).
B.

Motion for Judgment on the Pleadings

Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fter the
pleadings are closed--but early enough not to delay trial--a party may move for
judgment on the pleadings.” Fed. R. Civ. P. 12(c). As the Eleventh Circuit has
explained the Rule 12(c) standard:
Judgment on the pleadings is appropriate when there are no material
facts in dispute, and judgment may be rendered by considering the
substance of the pleadings and any judicially noticed facts. See Bankers
Ins. Co. v. Florida Residential Property and Cas. Joint Underwriting
Ass'n, 137 F.3d 1293, 1295 (11th Cir. 1998) (citing Hebert Abstract Co.
v. Touchstone Properties, Ltd., 914 F.2d 74, 76 (5th Cir. 1990)); see
also Rule 12(c), Fed. R. Civ. P. When we review a judgment on the
5

pleadings, therefore, we accept the facts in the complaint as true and we
view them in the light most favorable to the nonmoving party. See
Ortega, 85 F.3d at 1524 (citing Swerdloff v. Miami Nat'l Bank, 584 F.2d
54, 57 (5th Cir. 1978)). The complaint may not be dismissed “‘unless it
appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.’” Slagle, 102 F.3d
at 497 (quoting Conley v. Gibson, 355 U.S. 41, 45–46, 78 S. Ct. 99,
101–02, 2 L. Ed. 2d 80 (1957) & citing Hartford Fire Ins. Co. v.
California, 509 U.S. 764, 811, 113 S. Ct. 2891, 2916–17, 125 L. Ed. 2d
612 (1993)).
Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998).
Further, “[w]hether the court examine[s] [a pleading] under Rule 12(b)(6) or
Rule 12(c), the question [remains] the same: whether the [complaint] stated a claim
for relief.” Sampson v. Washington Mut. Bank, 453 F. App’x 863, 865 n.2 (11th Cir.
2011) (emphasis added) (quoting Strategic Income Fund, L.L.C. v. Spear, Leeds &
Kellogg Corp., 305 F.3d 1293, 1295 n.8 (11th Cir. 2002)); Sampson, 453 F. App’x
at 865 n.2 (applying Strategic Income and concluding that court’s error in granting
a dismissal under Rule 12(c) instead of Rule 12(b)(6) was harmless).
C.

Failure To Oppose

Mr. Barnes’s failure to file any opposition to the Rule 12(c) Motion does not
automatically mean that it is due to be granted. As explained by Judge Steele in
Branch Banking and Trust Co. v. Howard, No. 12–0175–WS–N, 2013 WL 172903
(S.D. Ala. Jan. 16, 2013), when the plaintiffs there likewise decided not to respond

6

to a pending motion to dismiss:2
As noted, Churchill and Howard elected not to be heard in
response to BB & T’s Amended Motion to Dismiss. Notwithstanding
that omission, BB & T (as Rule 12(b)(6) movant) bears the initial
burden of demonstrating that it is entitled to dismissal of the
counterclaims. Churchill’s and Howard’s lack of response to the Rule
12(b)(6) Motion does not trigger the kneejerk granting of such Motion
on an abandonment theory. See Gailes v. Marengo County Sheriff’s
Dep’t, 2013 WL 81227, *5 (S.D. Ala. Jan. 4, 2013) (“the Court will not
treat a claim as abandoned merely because the plaintiff has not defended
it in opposition to a motion to dismiss”). Rather, it remains BB & T’s
burden as movant to establish its entitlement to relief under Rule
12(b)(6). In light of these circumstances, the Court scrutinizes BB & T’s
Motion to Dismiss in accordance with the following legal standard: “the
Court will review the merits of the [movant]’s position and, if it is
clearly incorrect or inadequate to satisfy the [movant]’s initial burden,
will deny the motion despite the [nonmovant]’s failure to respond. If,
however, the [movant]’s presentation is adequate to satisfy its initial
burden, the Court will not deny the motion based on arguments the
[nonmovant] could have made but by silence elected not to raise.” Id.
Branch Banking, 2013 WL 172903, at *1 (footnotes omitted).
D.

Qualified Immunity

Qualified immunity may be affirmatively 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, 102 S. Ct. 2727, 2736-37, 73

2

As Sampson and Strategic Income illustrate, the same substantive legal standard applies
whether a motion to dismiss is filed pursuant to Rule 12(b)(6) or a motion for judgment on the
pleadings under Rule 12(c). Therefore, the consequences of not opposing a motion to dismiss is the
same, whether the motion is brought under Rule 12(b)(6) or under Rule 12(c).
7

L. Ed. 2d 396 (1982) (describing qualified immunity defense available to public
officials). 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 Cir. 1991).
The Supreme Court has referred to the qualified immunity analysis as the
“objective-reasonableness” test. See Harlow, 457 U.S. at 818, 102 S. Ct. at 2738
(“Reliance on the objective reasonableness of an official’s conduct, as measured by
reference to clearly established law, should avoid excessive disruption of government
and permit the resolution of many insubstantial claims on summary judgment.”)
(footnote omitted). 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 d[id] not violate clearly established statutory or
constitutional rights of which a reasonable person would have known[,]” given the
circumstances and information possessed by the official at the time of the conduct.
Id.
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
8

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,3 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. (citing Rich v. Dollar, 841 F.2d 1558, 1563–64 (11th Cir.
1988)). The second prong of the objective-reasonableness test has two sub-parts.
Hutton, 919 F.2d 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.

3

In this instance, Mr. Barnes makes no allegation or argument that any of the defendants
acted outside his respective sphere of discretionary authority.
9

“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, 107 S. Ct. 3034, 3039,
97 L. Ed. 2d 523 (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, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (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,
105 S. Ct. 2806, 2816, 86 L. Ed. 2d 411 (1985)).
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
10

asserted:
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
standard.
Randall, 610 F.3d at 709-10 (footnote omitted) (emphasis added).
III.

ANALYSIS
A.

Mr. Barnes’s Allegations4

In his complaint, Mr. Barnes maintains that on November 17, 2012, Defendants
came to his home located in Gadsden, Alabama, and pounded on the door at 6:30 a.m.
Defendants arrived in unmarked vehicles and were not dressed in uniforms.
Awakened by the pounding, Mr. Barnes answered the door and, because of the

4

The court adopts the summary provided by Mr. Waldrop (Doc. 29 at 5-8), as Mr. Barnes
has no objection to it. (Doc. 31 at 2).
11

unusual hour, held a handgun at his side. Defendants did not announce their identities
as law enforcement officers, but some or possibly all had “sheriff” printed on the back
of their clothing.
Mr. Barnes was surprised to see Defendants surrounding his door with their
guns drawn. Mr. Waldrop asked for “Stephen Blackburn” (“Mr. Blackburn”). Mr.
Barnes told Mr. Waldrop that Mr. Blackburn had not lived at this address for several
years.
Mr. Thompson then shouted “gun, gun, he’s got a gun,” in a panicky voice.
One or more Defendants ordered Mr. Barnes to drop his gun and lie down on the
ground. While Mr. Barnes was complying with their demands, Mr. Waldrop grabbed
Mr. Barnes’s left arm and began dragging him from his house. Mr. Thompson then
took Mr. Barnes’s right arm and assisted Mr. Waldrop with dragging Mr. Barnes from
his home.
After Mr. Barnes had been dragged outside by Mr. Waldrop and Mr.
Thompson, Mr. Scott Lumpkin and Mr. Bolton handcuffed him behind his back and
placed him face down in the gravel driveway. While Mr. Barnes’s face was in the
gravel, one or more Defendants took away his firearm and disassembled it. Mr.
Waldrop told Mr. Barnes that he was lucky they had not shot him and that Mr. Barnes
had no right to answer the door holding a handgun. Mr. Thompson agreed with what
12

Mr. Waldrop told Mr. Barnes.
Mr. Waldrop searched Mr. Barnes. Afterwards, Mr. Waldrop, Mr. Cole
Lumpkin, and Mr. Thompson searched Mr. Barnes’s house while Mr. Scott Lumpkin
and Mr. Bolton watched Mr. Barnes. Mr. Barnes did not give anyone permission to
search his home. Defendants did not have a warrant to arrest Mr. Barnes or to search
his house.
Mr. Waldrop then took Mr. Barnes into his home and told him that, before
Defendants returned to his house, Mr. Barnes should “get right with Jesus, Buddha,
or whoever the fuck” Mr. Barnes chooses to worship, because when they came back,
it would not end in the same way. Defendants left Mr. Barnes’s residence.
Mr. Barnes went outside and found his handgun. His firearm had been
disassembled into several pieces that were lying on the ground. Mr. Barnes realized
that the magazine for the handgun was missing.
After that, Mr. Barnes approached one of Defendants’ vehicles, rested his hand
on the open window sill of the car door, and asked where his magazine was. Mr.
Waldrop walked up to the vehicle, slapped Mr. Barnes’s hand and said, “I don’t know
anything about your goddamn magazine, and get your hand off my fucking truck.”
Mr. Barnes responded, “Really?” Mr. Waldrop replied, “Yeah, really, Motherfucker.
If you don’t want your ass whipped up and down this street you will get away from
13

my fucking truck.”
Mr. Barnes has not ever found the magazine to his gun. Mr. Barnes is also
missing a flashlight that was inside his house at the time of the search.
Defendants gave the press prior notice of their intentions to raid Mr. Barnes’s
home, and the press was traveling with Defendants when the raid occurred. The press
took a picture of Mr. Barnes being dragged away from his home. That photograph
was subsequently published on the front page of The Gadsden Times, causing Mr.
Barnes to endure public humiliation.
B.

Rule 12(b)(6) Motion
Count One–Illegal Seizure

In Count One of his complaint, which is brought against all defendants, Mr.
Barnes contends that:
By seizing Plaintiff’s person without probable cause and without a
warrant, all five 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.
(Doc. 27 ¶ 41).
Attached to Mr. Waldrop’s Rule 12(b)(6) Motion is a certified copy of a
criminal complaint against and an arrest warrant for Stephen Roy Blackburn (the

14

“Blackburn Warrant”) issued on August 14, 2012. (Doc. 29-1 at 4, 2).5 Mr. Waldrop
requests that this court consider his defense of qualified immunity to Count One by
factoring in the Blackburn Warrant without converting his motion to one for summary
judgment. (See Doc. 29 at 8-9 (“This Defendant’s position is that the Second
Amended Complaint implies of the warrant’s existence and that it can be considered
by this Court.”)).
Mr. Barnes contests Mr. Waldrop’s position and insists that Rule 12(d)
precludes the court from relying upon the Blackburn Warrant as part of its Rule
12(b)(6) analysis because the document presents a matter arising outside of the
pleadings. Rule 12(d) provides:
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule 56. All parties
must be given a reasonable opportunity to present all the material that
is pertinent to the motion.
Fed. R. Civ. P. 12(d).
As the Eleventh Circuit has explained the framework for determining when a
court may consider a document unattached to a complaint as part of a defensive
motion to dismiss:
Ordinarily, we do not consider anything beyond the face of the
5

All page references to Doc. 29-1 correspond with the court’s CM/ECF numbering system.
15

complaint and documents attached thereto when analyzing a motion to
dismiss. Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d
1364, 1368 (11th Cir. 1997). This court recognizes an exception,
however, in cases in which a plaintiff refers to a document in its
complaint, the document is central to its claim, its contents are not in
dispute, and the defendant attaches the document to its motion to
dismiss. Harris v. Ivax Corp., 182 F.3d 799, 802 n.2 (11th Cir. 1999);
Brooks, 116 F.3d at 1368–69. Here, FSA refers to the existence of the
insurance policy and relies on the effect of the policy—that FSA is
thereby required to make payments to the bondholders—though it does
not quote from the policy or discuss its specific provisions.
Financial Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007);
see also Quail Cruises Ship Management Ltd. v. Agencia de Viagens CVC Tur
Limitada, 645 F.3d 1307, 1310 n.5 (11th Cir. 2011) (referencing similar requirements
for exception to apply).
Here, the record is clear that Mr. Barnes’s complaint does not expressly refer
to the Blackburn Warrant. See Doc. 29 at 8 (“Plaintiff, again, has failed to plead a fact
that is clearly known by him–that the Defendants were attempting to arrest Stephen
Blackburn pursuant to an arrest warrant issued by a magistrate.”)). Instead, Mr.
Waldrop maintains that the document’s existence is implied from the contents of the
complaint.
However, in suggesting that an actual reference to the document by the plaintiff
is unnecessary for the exception to apply, Mr. Waldrop offers no on-point case
authority in which the Eleventh Circuit has expanded the scope of its exception in
16

such a significant manner. Under such circumstances, Mr. Waldrop’s position is
underdeveloped. Cf. Flanigan’s Enters., Inc. v. Fulton County, Ga., 242 F.3d 976,
987 n.16 (11th Cir. 2001) (holding that a party waives an argument if the party
“fail[s] to elaborate or provide any citation of authority in support” of the argument);
Ordower v. Feldman, 826 F.2d 1569, 1576 (7th Cir. 1987) (stating that an argument
made without citation to authority is insufficient to raise an issue before the court).
Moreover, in the absence of any reference to the Blackburn Warrant in the
complaint, the court finds that Mr. Waldrop cannot satisfy another requirement–that
the Blackburn Warrant is central to Mr. Barnes’s claims. In particular, while the
existence of the Blackburn Warrant may be essential to Mr. Waldrop’s affirmative
defense of qualified immunity, Mr. Waldrop has not offered any authority to
substantiate that this makes the document also central to Mr. Barnes’s claims,
especially when the document is not even mentioned in his pleading.
Additionally, based upon Mr. Waldrop’s opposition to the Rule 12(b)(6)
Motion, there appear to be some potentially material factual questions about the
validity of the Blackburn Warrant, which contested issues the court finds are more
appropriately examined under the lense of a more developed summary judgment
record. Therefore, in light of all these reasons, the court will not consider the
Blackburn Warrant under the Eleventh Circuit’s Rule 12(b)(6) conversion exception.
17

Further, because the Blackburn Warrant is pivotal to Mr. Waldrop’s qualified
immunity defense contentions applicable to Mr. Barnes’s illegal seizure claim, the
Rule 12(b)(6) Motion is DENIED as to Count One.
Count Three–Illegal Search
Count Three of Mr. Barnes’s complaint contains allegations against Mr.
Waldrop, Mr. Cole Lumpkin, and Mr. Thompson. More specifically, Mr. Barnes
asserts that:
By searching Plaintiff’s home without a warrant and without probable
cause, Defendants Waldrop, Cole Lumpkin, and Thompson, violated
Plaintiff’s right to be free from unreasonable searches, as guaranteed by
the 4th Amendment and incorporated against the states via the 14th
Amendment.
(Doc. 27 ¶ 43). Comparable to the court’s analysis of Count One above, because the
Blackburn Warrant is pivotal to Mr. Waldrop’s qualified immunity defense
contentions applicable to Mr. Barnes’s illegal search claim, the Rule 12(b)(6) Motion
is DENIED as to Count Three.
Count Four–Excessive Force
In addition to his unlawful seizure and search claims, Mr. Barnes attempts to
assert a discrete claim for excessive force against Mr. Waldrop and Mr. Thompson.
(See Doc. 27 ¶ 44 (“By dragging Plaintiff from his home and threatening to kill him,
Defendants Waldrop and Thompson violated Plaintiff’s right to be free from
18

excessive force as guaranteed by the 4th Amendment and incorporated against the
states via the 14th Amendment.”)). As the Eleventh Circuit has clarified the
appropriate scope of excessive force as a federal constitutional violation:
“Under this Circuit’s law ... a claim that any force in an illegal
stop or arrest is excessive is subsumed in the illegal stop or arrest claim
and is not a discrete excessive force claim.” Jackson v. Sauls, 206 F.3d
1156, 1171 (11th Cir. 2000) (citing Williamson v. Mills, 65 F.3d 155,
158–59 (11th Cir. 1995)). The right to make an arrest “necessarily
carries with it the right to use some degree of physical coercion or threat
thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct.
1865, 1871–72, 104 L. Ed. 2d 443 (1989). It follows, then, if an
arresting officer does not have the right to make an arrest, he does not
have the right to use any degree of force in making that arrest. This is
the premise of Bashir’s “excessive force” claim; but this is not what is
meant by “excessive force.” An excessive force claim evokes the Fourth
Amendment’s protection against the use of an unreasonable quantum of
force (i.e., non-de minimis force unreasonably disproportionate to the
need) in effecting an otherwise lawful arrest. When properly stated, an
excessive force claim presents a discrete constitutional violation relating
to the manner in which an arrest was carried out, and is independent of
whether law enforcement had the power to arrest. A claim like
Bashir’s—that the deputies used excessive force in the arrest because
they lacked the right to make the arrest—is not a discrete constitutional
violation; it is dependent upon and inseparable from his unlawful arrest
claim. Jackson, 206 F.3d at 1171. We reiterate, where an excessive force
claim is predicated solely on allegations the arresting officer lacked the
power to make an arrest, the excessive force claim is entirely derivative
of, and is subsumed within, the unlawful arrest claim. Id.; Williamson,
65 F.3d at 158–59. Bashir does not present a discrete excessive force
claim and, therefore, his excessive force claim fails as a matter of law.
Bashir v. Rockdale County, 445 F.3d 1323, 1331-32 (11th Cir. 2006) (emphasis
added).
19

Turning to Mr. Barnes’s complaint, he consistently disputes the legality of Mr.
Waldrop’s seizing of his person and nowhere in his pleading does he concede that
Mr. Waldrop acted in a lawful manner in his treatment of him at any time. In doing
so, Mr. Barnes’s excessive force allegations are necessarily directly linked (and
derivative of) his unlawful seizure claim which is akin to an unlawful arrest claim.
See Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889 (1968) (“It
is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do
not eventuate in a trip to the station house and prosecution for crime–‘arrests’ in
traditional terminology.”).
Therefore, under the Eleventh Circuit’s holding in Bashir, and given the
contours of Mr. Barnes’s pleading, Mr. Barnes’s excessive force allegations are
subsumed by his federal cause of action for unlawful seizure and are not
independently viable. Accordingly, Mr. Waldrop’s Rule 12(b)(6) Motion is
GRANTED as to Count Four.
Count Five–Second Amendment
Mr. Barnes final count is asserted against Mr. Waldrop only:
By telling Plaintiff that Plaintiff had no right to answer his own door
with a firearm, and threatening to kill Plaintiff for doing so again,
Defendant Waldrop violated Plaintiff’s right to keep and bear arms, as
guaranteed by the 2d Amendment and incorporated against the states via
the 14th Amendment.
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(Doc. 27 ¶ 45). In his Rule 12(b)(6) Motion, Mr. Waldrop maintains that Mr. Barnes
is attempting to “manufactur[er] a Second Amendment issue when none exists.” (Doc.
29 at 24). The court agrees.
More specifically, in his opposition to the Rule 12(b)(6) Motion, Mr. Barnes
makes no effort to demonstrate by citing to on-point authority how the above
allegations, taken as true, plausibly violate Mr. Barnes’s Second Amendment
constitutional rights. Alternatively, even if such verbal statements made by Mr.
Waldrop do constitute unconstitutional conduct under the Second Amendment, Mr.
Barnes has not met his burden of defeating Mr. Waldrop’s qualified immunity
defense to this claim by showing that Mr. Waldrop’s words violated either (i) clearly
established legal authority or (ii) the less commonly present apparent unlawfulness
exception. Accordingly, Mr. Waldrop’s Rule 12(b)(6) Motion is GRANTED as to
Count Five.
In the second section of his Rule 12(b)(6) Motion, Mr. Waldrop seeks a
dismissal of Mr. Barnes’s claims for declaratory and injunctive relief. (Doc. 29 at 2225). This portion of Mr. Waldrop’s Rule 12(b)(6) Motion is GRANTED.
In particular, Mr. Barnes has indicated that he has sued all defendants in their
individual capacities only. (See Doc. 27 ¶ (“He is sued in his individual capacity.”);
id. ¶¶ 7-10 (same)). “When a plaintiff sues a municipal officer in the officer’s
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individual capacity for alleged civil rights violations, the plaintiff seeks money
damages directly from the individual officer.” Busby v. City of Orlando, 931 F.2d
764, 772 (11th Cir. 1991) (emphasis added) (citing Kentucky v. Graham, 473 U.S.
159, 165, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985)).
Accordingly, Mr. Barnes’s unambiguous capacity-related allegations render his
requests for declaratory and injunctive relief implausible because such must be
brought against state actors in the official capacities. Cf. Monell v. Dep’t of Soc.
Servs. of City of New York, 436 U.S. 658, 690, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d
611 (1978) (“Local governing bodies, therefore, can be sued directly under § 1983
for monetary, declaratory, or injunctive relief where, as here, the action that is alleged
to be unconstitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s officers.”)
(footnote omitted) (emphasis added); id. at 691 n.55, 98 S. Ct. at 2036 n.55 (“Since
official-capacity suits generally represent only another way of pleading an action
against an entity of which an officer is an agent—at least where Eleventh Amendment
considerations do not control analysis—our holding today that local governments can
be sued under § 1983 necessarily decides that local government officials sued in their
official capacities are “persons” under § 1983 in those cases in which, as here, a local
government would be suable in its own name.”).
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C.

Rule 12(c) Motion

The Rule 12(c) Motion filed collectively by the other four named defendants
similarly seeks a dismissal of Counts One, Three, and Four on the basis of qualified
immunity and “adopts the brief of codefendant Waldrop to the extent pertinent[; and]
[p]articularly [relies upon] the submission of Exhibit A [i.e., the Blackburn Warrant]
to codefendant’s brief and the arguments supporting its submission and the court’s
review thereof.” (Doc. 35 at 2).6 Consistent with the court’s conclusions reached on
Mr. Waldrop’s Rule 12(b)(6) Motion, the Rule 12(c) Motion is GRANTED as to
Count Four, but is otherwise DENIED.
IV.

CONCLUSION
Therefore, for the reasons stated above, the Rule 12(b)(6) Motion and Rule

12(c) Motion are GRANTED IN PART and otherwise are DENIED. Specifically,
Counts Four and Five and all claims for declaratory and injunctive relief are
DISMISSED with prejudice; all other Counts and claims remain.
DONE and ORDERED this 29th day of May, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

6

All page references to Doc. 35 correspond with the court’s CM/ECF numbering system.
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