Clay-Brown v. Decatur, City of, Alabama et al

Filing 37

MEMORANDUM OPINION. Signed by Senior Judge Inge P Johnson on 4/25/13. (ASL)

FILED
2013 Apr-25 PM 01:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ANITA CLAY-BROWN,
Plaintiff,
vs.

)
)
)

CV 12-J-3988-NE

CITY OF DECATUR, ALABAMA, )
et al.,
)
Defendants.
)
MEMORANDUM OPINION
Pending before the court is the defendant City of Decatur’s motion to dismiss
the Amended Complaint and brief in support thereof (doc. 28 & 29) and defendant
Brandon Abbott’s motion to dismiss portions of the Amended Complaint and brief
in support thereof (doc. 30 & 31). Plaintiff has filed a response in opposition and in
the alternative a motion for leave to amend the complaint (doc. 35). Defendant City
of Decatur has filed a reply brief (doc. 36). Having considered the foregoing, the
court finds as follows:
Factual Background1
On July 22, 2011, plaintiff, Anita Clay-Brown, and her family were at the Best
Western River City Hotel in Decatur, Alabama. Amended Complaint (doc. 23 ¶¶ 13

1

“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,” therefore, the facts presented here, unless
otherwise noted, are taken from the Amended Complaint (doc. 23). See Erickson v. Pardus, 551
U.S. 89, 94 (2007).

& 14). At approximately 3:45 PM, plaintiff received word that her group had been
told to leave by the police. Id. at ¶ 16. Plaintiff went to the front desk area of the hotel
to investigate where she encountered two City of Decatur Police Officers. Id. at ¶ 17.
Plaintiff inquired about why the family was being asked to leave. Id. at ¶ 18.
After inquiring a second time, plaintiff was grabbed by one of the City of Decatur
Police Officers. Id. at ¶ 19. The City of Decatur Police Officers instructed the hotel
staff to turn off the security cameras. Id. ¶ 20. Defendant Brandon Abbott then used
a taser on plaintiff, multiple times, including after she had been immobilized, which
caused her to fall to the ground, where she was ultimately rendered unconscious. Id.
at ¶ 21. After plaintiff fell to the ground, either Defendant Brandon Abbott, and/or a
second officer known as “Officer Moseley,” shot her in the face with pepper spray.
Id. at ¶ 23.
Standard of Review
A pleading must contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). When considering a motion
to dismiss, the court must “accept the allegations of the complaint as true and
construe them ‘in the light most favorable to the plaintiff.’” Simmons v. Sonyika, 394
F.3d 1335, 1338 (11th Cir. 2004) (citing Hill v. White, 321 F.3d 1334, 1335 (11th Cir.
2003)). Rule 8 does not require “‘detailed factual allegations,’ but it demands more
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than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555, 127 S.Ct. 1955, 1964-65 (2007)). “In order for the plaintiff to satisfy his
‘obligation to provide the grounds of his entitlement to relief,’ he must allege more
than ‘labels and conclusions’; his complaint must include ‘[f]actual allegations
[adequate] to raise a right to relief above the speculative level.’” Financial Sec.
Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1282 (11th Cir. 2007) (citing Twombly,
127 S.Ct. at 1964-65).
Legal Analysis
Defendants have moved to dismiss Officer Brandon Abbott and the City of
Decatur arguing that plaintiff has failed to state a claim under 42 U.S.C. § 1983 upon
which relief can be granted. Plaintiff responds that the complaint is sufficient to state
a claim under 42 U.S.C. § 1983 against each of the defendants. In the alternative,
plaintiff asks for leave to amend her complaint if it is found deficient.
I. Plaintiff has stated a claim under 42 U.S.C. § 1983 against the City of
Decatur.
A municipality is not subject to § 1983 liability under the doctrine of respondeat
superior based upon the alleged unconstitutional conduct of its employees. Monell v.
Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691, (1978) (“In particular, we

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conclude that a municipality cannot be held liable solely because it employs a
tortfeasor – or, in other words, a municipality cannot be held liable under § 1983 on
a respondeat superior theory.”) (emphasis in original); City of Canton v. Harris, 489
U.S. 378, 385 (1989) (“[r]espondeat superior or vicarious liability will not attach
under § 1983.”); see also Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir.
1991). Rather, it is only “when execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an entity is responsible under
§ 1983.” Monell, 436 U.S. at 694. Regardless of whether the basis of a § 1983 claim
is an officially promulgated policy or an unofficially adopted custom, it must be the
“moving force” behind the constitutional deprivation before liability may attach. City
of Oklahoma City v. Tuttle, 471 U.S. 808, 819-820 (1985) (plurality opinion) (quoting
Polk County v. Dodson, 454 U.S. 312, 326 (1981)). As a consequence, “not only must
there be some degree of ‘fault’ on the part of the municipality in establishing or
tolerating custom or policy, but there also must exist a causal link between the custom
or policy and the deprivation.” Fundiller v. City of Cooper City, 777 F.2d 1436, 1442
(11th Cir. 1985) (citing Tuttle, 471 U.S. at 821).
Plaintiff asserts that she brings this action “against the City of Decatur for its
failure to properly train and supervise the individual Defendants in the proper use of
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force, including deadly force, and techniques used to secure a suspect; proper dispatch
policy, and its establishment of policies, procedures, practices, and customs regarding
arrests that result in the excessive use of force and injuries to the Plaintiff.” (doc. 23
at ¶ 4). In this regard, she alleges that the “City of Decatur failed to train its officers,
and its delegates, on the proper use of a deadly weapon (tasers), including the potential
for serious physical injury or death, and has failed to train, or adequately train, the
Decatur police force in the appropriate use of such force.” (Id. at ¶ 11). Plaintiff
further alleges “The City of Decatur was also deliberately indifferent to the use of
deadly force (tasers) by the fact that it knew their police officers carried tasers, used
tasers to subdue citizens, and in doing so, allowed constitutional violations of
excessive force to occur.” (Id.).
The Supreme Court has held that: “[o]nly where a municipality’s failure to train
its employees in a relevant respect evidences a ‘deliberate indifference’ to the rights
of its inhabitants can such a shortcoming be properly thought of as a city ‘policy or
custom’ that is actionable under § 1983.” City of Canton, 489 U.S. at 389. This
deliberate indifference must constitute “a deliberate choice to follow a course of action
. . . by city policymakers.” Id. “[A] plaintiff must present some evidence that the
municipality knew of the need to train and/or supervise in a particular area and the
municipality made a deliberate choice not to take any action.” Gold v. City of Miami,
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151 F.3d 1346, 1350 (11th Cir. 1998). The Eleventh Circuit has “held that without
notice of a need to train or supervise in a particular area, a municipality is not liable
as a matter of law for any failure to train and supervise.” Id. at 1351. A § 1983 plaintiff
must show a “history of widespread prior abuse” before a policymaker can be “put .
. . on notice of the need for improved training or supervision.” Id. (quoting Wright v.
Sheppard, 919 F.2d 665, 674 (11th Cir. 1990)).
There is no allegation whatsoever in the complaint that any person who qualifies
as a policymaker of the City of Decatur was aware of any prior instance where any
similar alleged constitutional deprivation had allegedly occurred. In City of Canton,
the Supreme Court left open the possibility that a need to train could be “so obvious,”
that a city could be held liable without proof of a pattern of prior constitutional
violations. 489 U.S. at 390. To date the use of deadly force where firearms are
provided to police officers is the only hypothetical example of a need to train being
“so obvious” as to not require proof of prior constitutional violations provided by the
Supreme Court. Gold, 151 F.3d at 1352 (citing City of Canton, 489 U.S. at 390 n. 10).
Plaintiff alleges that the use of tasers constitutes the use of deadly force and
therefore fits into the “so obvious” category. Defendant asserts that other courts that
have examined the use of tasers have declined to include them in the same category
of force as firearms. See, e.g., Glenn v. City of Columbus, Ga., 375 Fed. Appx 928,
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933 (11th Cir. 2009) (noting that there is a “middle” ground between the polar
extremes of “deadly force and the use of a Taser gun”); Gilliam ex rel. Waldroup v.
City of Prattville, 667 F. Supp. 2d 1276, 1293 (M.D. Ala. 2009) (“The use of a firearm
against a person is presumptively the use of deadly force, while the use of a taser is not
presumptively the use of deadly force.”). In this case, the unarmed plaintiff alleges that
defendants used a taser on her at least four times and then sprayed pepper spray in her
face. (doc. 23 ¶¶ 20-23).2
A taser is used to incapacitate a person.3 The American Heart Association
released a study in April 2012 which concluded that taser electronic control devices
can cause cardiac arrest and death.4 The study also concludes that individuals
“exposed to arrhythmogenic drugs and/or who have structural heart disease” or who
have been tased at length or repeatedly, are at greater risk for cardiac arrest and death.

2

Plaintiff was with her four grandchildren, son-in-law, and daughter simply occupying a
hotel room. Amended Complaint (doc. 23) ¶ 14.
3

Fils v. City of Aventura, 647 F.3d 1272, 1276 n. 2 (11th Cir. 2011) (“A ‘taser’ is a
non-deadly weapon commonly carried by law enforcement. The taser administers an electric
shock to a suspect by shooting two small probes into the suspect's body. The probes are
connected to the firing mechanism via wires. Once fired, the probes lodge under the suspect's
skin and administer an electric shock. This type of taser permits the officer to incapacitate a
suspect from a modest distance. We refer to this type of taser when we say that someone was
‘tased.’”).
4

Zipes, Douglas P., M.D., Sudden Cardiac Arrest and Death Associated with Application
of Shocks from a TASER Electronic Control Device, JOURNAL OF THE AM. HEART ASS’N
(published online at
http://circ.ahajournals.org/content/early/2012/04/20/CIRCULATIONAHA.112.097584) (April
30, 2012).
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JOURNAL OF THE AM. HEART ASS’N at 12. Amnesty International estimates up to 334
people were killed as a result of taser use by police officers in the United States from
June 2001 to August 2008.5 The court is not prepared to find that at least four
administrations of an incapacitating device capable of causing death does not present
a need to train that could be “so obvious” that a city could be held liable without proof
of a pattern of prior constitutional violations.
Plaintiff’s allegations taken as true establish more than a “sheer possibility that
a defendant has acted unlawfully.” See Iqbal, 556 U.S. at 678. Plaintiff has therefore
met the pleading requirements as established by Twombly and Iqbal and defendant’s
motion to dismiss the City of Decatur is due to be denied.
II. Plaintiff has failed to state a 42 U.S.C. § 1983 claim for violation of
her Eighth and Fourteenth Amendment rights.
Plaintiff does not address defendant Abbott’s motion to dismiss the claims
under the Eighth and Fourteenth Amendments. Therefore, said claims are deemed
abandoned and dismissed. See Iraola & CIA v. Kimberly-Clark Corp., 325 F.3d 1274,
1284 (11th Cir. 2003); see also Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322
(11th Cir. 2001).

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AMNESTY INT’L, Less than lethal?: The use of stun weapons in US law enforcement,
AMNESTY INT’L PUB. (2008) (available online at
https://www.amnesty.org/ar/library/asset/AMR51/010/2008/en/530be6d6-437e-4c77-851b9e581197ccf6/amr510102008en.pdf).
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III. Dismissal of official capacity claims against Abbott.
Defendant Abbott asserts that “Because the City of Decatur is a separately
named defendant in this action, plaintiff’s official capacity claims against [Abbott] are
superfluous and redundant and are due to be dismissed. As the court found in its
Memorandum Opinion, dated February 28, 2013, (doc. 21) p. 3-5, defendant is
correct.6 Under Busby, 931 F. 2d at 776, keeping both the City and Abbott in his
official capacity as defendants would be redundant. The official capacity claims
against Abbott are therefore due to be dismissed.
Conclusion
Plaintiff has stated a claim under 42 U.S.C. § 1983 against the City of Decatur.
That defendant’s motion to dismiss (doc. 28) is therefore DENIED. Plaintiff’s claims
under the Eighth and Fourteenth amendment are dismissed. Defendant’s motion to
dismiss defendant Abbott in his official capacity only (doc. 30) is GRANTED.
DONE and ORDERED this the 25th day of April 2013.

INGE PRYTZ JOHNSON
SENIOR U.S. DISTRICT JUDGE

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Plaintiff acknowledges that when suits are maintained against both the local
governmental entity and the individual defendant in his official capacity, precedent dictates the
official capacity claim should be dismissed. (doc. 35) p. 11 n. 4.
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