Brannon et al v. Gadsden, City of et al
MEMORANDUM OPINION AND ORDER FINDING AS MOOT 24 MOTION to Dismiss, GRANTING IN PART and TERMED as MOOT IN PART 26 MOTION to Dismiss, GRANTING 28 MOTION to Stay Pending Disposition of Motion to Dismiss, TERMED as MOOT 37 MOTIO N for Joinder. Finally, Plaintiffs are HEREBY GRANTED until January 31, 2014, to replead only their plausible claims in a nonshotgun format and to address the other concerns raised in this Memorandum Opinion. Signed by Judge Virginia Emerson Hopkins on 12/4/2013. (JLC)
2013 Dec-04 PM 05:08
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
KIMBERLY L. BRANNON, et al.,
CITY OF GADSDEN, et al.,
) Case No.: 4:13-CV-1229-VEH
MEMORANDUM OPINION AND ORDER
INTRODUCTION AND PROCEDURAL HISTORY
Plaintiffs1 initiated this civil rights lawsuit and purported class action on July
1, 2013, against Defendants City of Gadsden (“COG”), City of Attalla (“COA”),
Lenesha Zaner (“Ms. Zaner”), and the Etowah County Court Referral Program, LLC
(the “ECCRP”). (Doc. 1). Plaintiffs generally maintain that they have suffered
constitutional and other injuries stemming from the contractual provision of drug and
alcohol testing services, rehabilitation services, and monitoring services by ECCRP
and its director, Ms. Zaner, for the benefit of COG and COA in conjunction with the
The eight named plaintiffs are Kimberly L. Brannon (“Ms. Brannon”), Charles Cantrell
(“Mr. Cantrell”), Joseph R. Dubose (“Mr. Dubose”), Ricky L. Hunter (“Mr. Hunter”), Dustin A.
Loyd (“Mr. Loyd”), Jason L. Lynn (“Mr. Lynn”), Erica Snow (“Ms. Snow”), and Roy Myers (“Mr.
administration of their municipal justice systems. (Doc. 22 at 4 ¶ 9). The gravamen
of Plaintiffs’ suit is that Defendants are all engaged in an unconstitutional post-arrest
“court referral program” (the “Program”) that has deprived them (and the purported
subclass members whom they seek to represent) of their civil rights. (Doc. 22 at 2,
By way of separate Motions To Dismiss (Docs. 10, 16) (the “First Dismissal
Motions”), Defendants challenged the sufficiency of Plaintiffs’ initial pleading and,
on August 19, 2013, Plaintiffs filed a first amended and restated complaint (Doc. 22),
which rendered the then pending First Dismissal Motions moot. (See consecutive
CM/ECF margin entries dated Aug. 20, 2013 (terming as moot Docs. 10 and 16)).
As summarized in Plaintiffs’ restated complaint:
This is an action for damages sustained by citizens of the United
States against Defendants when Defendants’ officers, agents, employees
and/or representatives unreasonably subjected Plaintiffs and the Class
to warrants, arrests, confinements, unreasonable and unlawful fines,
costs and fees, prosecution beyond the jurisdiction of the court and
without due process of law and/or kept Plaintiffs subjected to a “court
referral program” willfully, wantonly, intentionally, and/or with reckless
disregard of Plaintiffs’ civil rights and due process as citizens of the
State of Alabama and the United States of America. Additionally, this
action is against Defendants for their deliberate indifference towards
Plaintiffs and for their failure to properly train and supervise their
agents, officers and/or employees to assure Plaintiffs’ constitutional
rights to due process. Further, Defendants failed to implement proper
policies, procedures and customs to protect Plaintiffs’ constitutional
rights and rights to due process.
(Doc. 22 at 2).
Some of the plaintiffs, i.e., Ms. Brannon, Mr. Cantrell, Mr. DuBose, Mr.
Hunter, and Mr. Myers (collectively, the “Post-Sentence Plaintiffs”) complain about
their treatment under the Program after being “placed on probation . . . .” (Doc. 22
at 5 ¶ 12; id. at 6 ¶ 13; id. at 7 ¶ 14; id. at 9 ¶ 15; id. at 14 ¶ 19). Others, such as Mr.
Loyd, Mr. Lynn, and Ms. Snow (collectively, the “Delayed/Suspended-Sentence
Plaintiffs”), complain about problems which they allegedly encountered under
Program after (at least initially) either having their prosecution deferred or their
sentence suspended. (See id. at 10 ¶ 16 (prosecution deferred); id. at 11 ¶ 17
(suspended sentence); id. at 13 ¶ 18 (prosecution deferred)).
In their amended pleading, Plaintiffs assert seven counts arising under a
mixture of federal and Alabama law against all “Defendants” collectively: count I is
for violations of 42 U.S.C. § 1983 arising under federal law; count II is for denial of
due process arising under federal and Alabama law; count III is for violation of
constitutional amendments arising under federal and Alabama law; count IV is for
false imprisonment arising under federal and Alabama law; and count V is for false
arrest arising under federal and Alabama law; count VI is for abuse of process arising
under federal and Alabama law; and count VII is for negligent, reckless and/or
wanton training and/or supervision and does not assert a specific source of law.
(Doc. 22 at 24-41).
On September 3, 2013, Defendants ECCRP and Ms. Zaner filed a second
Motion To Dismiss (Doc. 24),2 and Defendants COG and COA followed with their
second Motion To Dismiss (Doc. 26) (collectively, the “Second Dismissal Motions”)
on September 6, 2013. These Second Dismissal Motions have been fully briefed and
are now under submission. (Docs. 24-1, 24-2, 27, 32, 34-35).
Also pending before the court are Defendants COG and COA’s Motion To Stay
Case Pending Disposition of Motions To Dismiss (Doc. 28) (the “Stay Motion”) filed
on September 6, 2013, and Defendants ECCRP and Ms. Zaner’s Motion for Joinder
(Doc. 37) (the “Joinder Motion”) filed on September 27, 2013. The Stay and Joinder
Motions have also been briefed and likewise are ready for disposition. (See Docs. 30
(opposition to Stay Motion), 34 (reply in support of Stay Motion), 38 (opposition to
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, Defendants
challenge the court’s jurisdiction to hear this case under the Rooker-Feldman
Any page references to Doc. 24 correspond with the court’s CM/ECF numbering system.
doctrine.3 As the Eleventh Circuit has articulated regarding this jurisdictional
The Rooker-Feldman doctrine makes clear that federal district
courts cannot review state court final judgments because that task is
reserved for state appellate courts or, as a last resort, the United States
Supreme Court. See Feldman, 460 U.S. at 482, 103 S. Ct. at 1315. The
doctrine applies both to federal claims raised in the state court and to
those “inextricably intertwined” with the state court’s judgment. Id. at
482 n. 16, 103 S. Ct. at 1315 n. 16. It does not apply, however, where a
party did not have a “reasonable opportunity to raise his federal claim
in state proceedings.” Powell, 80 F.3d at 467 (internal quotation marks
omitted). A claim is inextricably intertwined if it would “effectively
nullify” the state court judgment, id. (internal quotation marks omitted),
or it “succeeds only to the extent that the state court wrongly decided the
issues.” Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1332 (11th
While the Supreme Court’s recent Rooker-Feldman decisions
have noted the “narrowness” of the rule, see Lance v. Dennis, 546 U.S.
459, 464, 126 S. Ct. 1198, 1201, 163 L. Ed. 2d 1059 (2006), they have
also confirmed that it continues to apply with full force to “cases
brought by state-court losers complaining of injuries caused by
state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those
judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
280, 284, 125 S. Ct. 1517, 1521-22, 161 L. Ed. 2d 454 (2005). Other
circuits have recognized an exception to the doctrine where the state
court judgment is “void ab initio due to the state court’s lack of
jurisdiction,” see, e.g., 4901 Corp. v. Town of Cicero, 220 F.3d 522, 528
(7th Cir. 2000); In re James, 940 F.2d 46, 52 (3d Cir.1991), but our
“The Rooker- Feldman doctrine derives from Rooker v. Fidelity Trust Co., 263 U.S. 413,
44 S. Ct. 149, 68 L. Ed. 362 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S.
462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983).” Alvarez v. Attorney General for Fla., 679 F.3d 1257,
1262 (11th Cir. 2012).
circuit has never adopted that exception.
Casale v. Tillman, 558 F.3d 1258, 1260-61 (11th Cir. 2009) (emphasis added).
Defendants also contend that Plaintiffs lack standing to assert claims for
declaratory and injunctive relief. “Because standing is jurisdictional, a dismissal for
lack of standing has the same effect as a dismissal for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1).” Stalley v. Orlando Reg’l Healthcare
Sys., 524 F.3d 1229, 1232 (11th Cir. 2008).
The Supreme Court of the United States has recently elaborated upon several
principles pertaining to the constitutional doctrine of standing:
Article III of the Constitution confines the judicial power of
federal courts to deciding actual “Cases” or “Controversies.” §2. One
essential aspect of this requirement is that any person invoking the
power of a federal court must demonstrate standing to do so. This
requires the litigant to prove that he has suffered a concrete and
particularized injury that is fairly traceable to the challenged conduct,
and is likely to be redressed by a favorable judicial decision. Lujan v.
Defenders of Wildlife, 504 U. S. 555, 560–561 (1992). In other words,
for a federal court to have authority under the Constitution to settle a
dispute, the party before it must seek a remedy for a personal and
tangible harm. “The presence of a disagreement, however sharp and
acrimonious it may be, is insufficient by itself to meet Art. III’s
requirements.” Diamond, supra, at 62.
Most standing cases consider whether a plaintiff has satisfied the
requirement when filing suit, but Article III demands that an “actual
controversy” persist throughout all stages of litigation. Already, LLC v.
Nike, Inc., 568 U. S. ___, ___ (2013) (slip op., at 4) (internal quotation
Hollingsworth v. Perry, 133 S. Ct. 2652, 2661, 186 L. Ed. 2d 768 (2013) (emphasis
Both Second Dismissal Motions also dispute the adequacy of Plaintiffs’
amended pleading under Rule 12(b)(6). 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.
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).
The Second Dismissal Motions
ECCRP and Ms. Zaner assert seven categories of defenses to Plaintiffs’
restated claims: (1) qualified immunity; (2) quasi-judicial immunity; (3) RookerFeldman doctrine and/or principles of federalism and comity; (4) no plausible claim
for relief; (5) shotgun pleading; (6) constitutional claims are deficient; and (7)
common-law claims are deficient. (Doc. 24 at 2-3).
According to the table of contents of their brief (Doc. 27 at 2), COG and
COA’s Second Dismissal Motion purportedly asserts nineteen categories of defenses
to Plaintiffs’ claims: (1) Alabama Court system; (2) Mandatory Treatment Act of
1990; (3) Alabama Constitution; (4) criminal procedure; (5) judicial immunity; (6)
municipal control and the Monell doctrine; (7) pleadings standard; (8) insufficient
factual allegations; (9) Fifth Amendment; (10) remedies; (11) injunctive relief and
standing; (12) malicious and wanton conduct; (13) punitive damages; (14) statute of
limitations; (15) ante litem/non-claim statutes; (16) Rooker-Feldman doctrine; (17)
federalism and comity; (18) misjoinder; and (19) co-defendants’ argument.
Defendants’ kitchen sink approach to defending against Plaintiffs’ claims is
largely underdeveloped, cumbersome, and ineffective. 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). However, at the same time, the court
acknowledges that the shotgun nature of Plaintiffs’ amended pleading is the likely
impetus behind Defendants’ overly board and poorly formulated filings.
While Plaintiffs’ amended complaint is somewhat more specific than the
original one that was filed, it is still pled in a shotgun format, 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 filed.”).4
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.
For example, because Plaintiffs have filed a shotgun pleading, it is impossible
to ascertain which specific claims are asserted by which specific plaintiffs against
which specific defendants and, for Ms. Zaner, the only individual defendant, in which
of her capacities.5 This vagueness makes an evaluation of the defenses of qualified
immunity and quasi-judicial immunity impractical.6
Plaintiffs also have confusingly lumped claims arising under federal law with
others arising under state law within the same count. Additionally, Plaintiffs have
duplicated claims. Compare claims asserted in count I with those set forth in counts
II and III.
Another problem with Plaintiffs’ pleading is that they fail to clarify whether
they have completed their term of probation under the Program. This information is
pertinent, inter alia, to deciphering whether each a particular named Plaintiff has
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))).
While Plaintiffs have indicated in their brief that Ms. Zaner has been sued in her individual
capacity (see Doc. 23 at 13 (“Zaner is the only defendant named in [her] individual capacity.”)), their
pleading is not so clear. For example, the case caption does not reflect whether Ms. Zaner is being
sued officially, individually, or both. (Doc. 22 at 1). Further, Plaintiffs’ description of Ms. Zaner
as a party makes no mention of her official versus personal capacity. (Doc. 22 at 4 ¶ 10).
Additionally, none of Plaintiffs’ counts makes an effort to delineate whether Ms. Zaner is being sued
for monetary damages on an individualized basis. Finally, Plaintiffs cannot use their brief as a
means to amend or restate their pleading.
individualized standing to assert claims for declaratory and injunctive relief against
Similarly, Plaintiffs do not state whether their criminal convictions have
become final. These missing allegations relate to jurisdictional concerns and this
court is obligated to verify (and not just reasonably infer) that jurisdiction exists. (Cf.
Doc. 32 at 40 (“Thus, this Court could reasonably infer that Plaintiffs have
demonstrated and pled continued constitutional violations and that a real and
immediate threat of future violations of protected rights could cause irreparable injury
to Plaintiffs and the Class.”)).
In repleading, Plaintiffs must study the Davis decision and the numerous cases
cited therein and draft a much more definite and comprehendible pleading. The
claims of each Plaintiff against each Defendant must be set forth in separately
numbered counts. Further, Plaintiffs’ restated pleading must include only plausibly
stated claims and avoid lumping any causes of action together.7 Finally, Plaintiffs
should endeavor to streamline their claims and allegations and reduce unnecessary
duplication of their contentions.
By way of further example, Ms. Brannon, who alleges that she “was arrested for a
misdemeanor by the City of Gadsden” (Doc. 22 at 5 § 12), cannot plausibly state any claim against
Because of the nature of this court’s ruling, it does not reach the merits of the
other defenses raised in the Second Dismissal Motions, and those parts of the Second
Dismissal Motions are TERMED as MOOT. Defendants will have an opportunity
to reassert them to the extent that such is warranted after Plaintiffs replead.
However, the court cautions Defendants that it will not look favorably upon the
assertion of any underdeveloped defenses, including, but not limited to, the failure to
cite to on-point case authority in support of their position(s).
Defendants will not be permitted to adopt arguments contained in other briefs.
Instead, with the exception of any jurisdictional inquiries, the court will limit its
consideration to only those defenses and contentions expressly formulated in the
parties’ respective briefing.
In light of the court’s rulings above, the Stay Motion is GRANTED. In
particular, conducting discovery at this juncture would be premature as the proper
scope of Plaintiffs’ plausibly-stated claims has yet to be determined, and the stay will
remain in place either until Defendants have answered or the court has addressed the
merits of any subsequently filed motion(s) to dismiss.
In light of the court’s rulings above, the Joinder Motion is TERMED as
As set forth above, the Second Dismissal Motions are GRANTED IN PART
and TERMED as MOOT IN PART. Further, the Stay Motion is GRANTED, and
the Joinder Motion is TERMED as MOOT. Finally, Plaintiffs are HEREBY
GRANTED until January 31, 2014, to replead only their plausible claims in a nonshotgun format and to address the other concerns raised in this memorandum opinion.
DONE and ORDERED this the 4th day of December, 2014.
VIRGINIA EMERSON HOPKINS
United States District Judge
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