Smith v. Sumiton, City of et al

Filing 16

MEMORANDUM OPINION. Signed by Judge R David Proctor on 1/7/2013. (AVC)

FILED
2013 Jan-07 PM 02:35
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
MARY KRISTINA SMITH, and any
others similarly situated,
Plaintiff,
v.
CITY OF SUMITON; SUMITON
POLICE DEPARTMENT; CITY OF
SUMITON JAIL; T.J. BURNETT;
CHRIS DAUGHERTY, ESTATE OF
CHRIS DAUGHERTY, FICTITIOUS
DEFENDANTS A, B, and C, those
officers or employees of the City of
Sumiton involved in Constitutional
Violations,
Defendants.

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Case No.: 6:12-cv-03521-RDP

MEMORANDUM OPINION
Before the court is Defendants Police Chief T.J. Burnett (“Burnett”) and City of Sumiton
Alabama’s (“City”) Motion to Dismiss (Doc. #6), filed on October 31, 2012. Defendants filed a
brief supporting their motion (Doc. #6-1) and Plaintiff responded on November 8, 2012. (Doc. #12).
Defendants did not file a reply. For the reasons stated below, Defendants’ Motion (Doc. #6) is due
to be granted in part and denied in part.1

1

Footnote 1 of Defendants’ brief also addresses Plaintiff’s claims against the Sumiton Police Department and
the City of Sumiton Jail. To the extent Plaintiff intends to assert a claim against either of these parties, these claims fail
because neither the Sumiton Police Department nor the City of Sumiton Jail are entities subject to suit. See e.g., Dean
v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (noting that “sheriff’s departments and police departments are not
usually considered legal entities subject to suit”); Eddy v. City of Miami, 715 F. Supp. 1533, 1536 (S.D. Fla. 1989)
(“Where a police department is an integral part of the city government as the vehicle through which the city government
fulfills its policing functions, it is not an entity subject to suit.”); Powell v. Cook Cnty Jail, 814 F. Supp. 757, 758 (N.D.
Ill. 1993) (jail is not a legal entity subject to suit); Yeager v. Hardy, 2011 WL 736396, at *1 (city jail is “not a legal
entity and, therefore, is not subject to suit. . . .”). Therefore, Plaintiff’s claims against Defendants Sumiton Police
Department and City of Sumiton Jail are due to be dismissed.

I.

BACKGROUND AND RELEVANT FACTS
Plaintiff initiated this lawsuit by filing a Complaint on October 4, 2012. (Doc. #1).

Plaintiff’s Complaint contains five counts to relief against Defendants. (See Doc. #1). Plaintiff
asserts 42 U.S.C. § 1983 claims for violations of the Fourth, Eighth, and Fourteenth Amendments
to the United States Constitution (Count One); state law invasion of privacy claims (Count Two);
state law assault and battery claims (Count Three); state law outrage claims (Count Four); and state
law negligent retention, negligent training, and negligent supervision claims (Count Five). (See Doc.
#1).
The facts alleged in Plaintiff’s Complaint are as follows. Sometime in October 2010, a
Sumiton police officer arrested Plaintiff for unpaid traffic violations and took her to the City of
Sumiton Jail. (Doc. #1 at ¶ 13). Plaintiff remained in the jail overnight. (Id. at ¶ 14). During the
first night she was incarcerated, Defendant Chris Daugherty “threatened her, made verbal sexual
threats and forced [her] to perform unwanted sex acts on him and sexually harassed her, sexually
assaulted her and sexually abused her.” (Id.). Plaintiff “had no choice but to be subjected to the
unwanted sexual acts against her” because of the verbal and physical threats made against her, the
assault and battery, and the position of power asserted by Defendant Daugherty. (Id. at ¶ 15).
II.

STANDARD OF REVIEW
The Federal Rules of Civil Procedure require only that the complaint provide “a short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Having said that, the complaint must include enough facts “to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that
contain nothing more than “a formulaic recitation of the elements of a cause of action” do not meet
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Rule 8 standards, nor do pleadings suffice that are based merely upon “labels and conclusions” or
“naked assertion[s]” without supporting factual allegations. Twombly, 550 U.S. at 555, 557. In
deciding a Rule 12(b)(6) motion to dismiss, courts view the allegations in the complaint in the light
most favorable to the non-moving party. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir.
2007).
To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Although “[t]he
plausibility standard is not akin to a ‘probability requirement,’” the complaint must demonstrate
“more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for
relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence”
to support the claim. Twombly, 550 U.S. at 556.
The Supreme Court has recently identified “two working principles” for a district court to
use in applying the facial plausibility standard. First, in evaluating motions to dismiss, the court
must assume the veracity of well-pleaded factual allegations; however, the court does not have to
accept as true legal conclusions when they are “couched as [] factual allegation[s].” Iqbal, 129 S.
Ct. at 1950. Second, “only a complaint that states a plausible claim for relief survives a motion to
dismiss.” Id. Application of the facial plausibility standard involves two steps. Under prong one,
the court must determine the scope and nature of the factual allegations that are well-pleaded and
assume their veracity; and under prong two, the court must proceed to determine the claim’s
plausibility given the well-pleaded facts. That task is context specific and, to survive the motion,
3

the allegations must permit the court based on its “judicial experience and common sense . . . to infer
more than the mere possibility of misconduct.” Id. If the court determines that well-pleaded facts,
accepted as true, do not state a claim that is plausible, the claims are due to be dismissed. Id.
III.

DISCUSSION
A.

Plaintiffs Claims Against Defendant Burnett
1.

Official Capacity Section 1983 Claims

Plaintiff’s “official capacity” section 1983 claims against Defendant Burnett are due to be
dismissed because these claims are claims against the City of Sumiton itself. “[O]fficial capacity
suits generally represent only another way of pleading an action against the entity of which an officer
is an agent.” Brandon v. Holt, 469 U.S. 464, 472 n. 21 (1985). Suits against an individual acting in
his official capacity impose liability on the governmental entity the official represents. See Busby
v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (“Because suits against a municipal officer
sued in his official capacity and direct suits are functionally equivalent, there no longer exists a need
to bring official-capacity actions against local government officials, because local government units
can be sued directly. . . .”). Because Plaintiff’s official capacity section 1983 claims against
Defendant Burnett are claims against the City of Sumiton, they are due to be dismissed. However,
with the exception of any Eighth Amendment claims,2 Plaintiff’s individual capacity section 1983

2

The purpose of the Eighth Amendment is to protect persons convicted of crimes from cruel and unusual
punishment. See, e.g., United States v. Lovett, 328 U.S. 303, 317-18 (1946); Whitley v. Albers, 475 U.S. 312, 318
(1986). Generally, the Eighth Amendment does not apply to claims brought by arrestees and pretrial detainees. Cottrell
v. Caldwell, 85 F.3d 1480, 1490 (11 th Cir. 1996) (“Claims involving the mistreatment of arrestees or pretrial detainees
in custody are governed by the Fourteenth Amendment’s Due Process Clause instead of the Eighth Amendment’s Cruel
and Unusual Punishment Clause, which applies to such claims by convicted prisoners.”). Plaintiff was an arrestee in
custody for failure to pay traffic fines. (See Doc. #1 at ¶ 13). Thus, any Section 1983 individual capacity claims against
Defendant Burnett on the basis of Eighth Amendment violations are due to be dismissed because Plaintiff was an arestee
or pretrial detainee and not an individual convicted of a crime. See Cottrell, 85 F.3d at 1490.

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claims are not due to be dismissed on the pleadings.
2.

Individual Capacity Section 1983 Claims

Suits against municipal officials in their individual capacities are claims against the officials
themselves as relief is sought from the person, not the governmental entity he represents. See Hafer
v. Melo, 502 U.S. 21, 25 (1991). Accordingly, Defendant Burnett is a “person” subject to suit under
section 1983, when sued in his individual capacity. See Toth v. City of Dothan, 953 F. Supp. 1502,
1507 (M.D. Ala. 1996) (noting that state officials sued in their individual capacities are “persons”
for purposes of Section 1983 and that they may be held personally liable for damages under Section
1983 for actions taken in their official capacities).
“It is well established in this Circuit that supervisory officials are not liable under [section]
1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or
vicarious liability.” Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (quoting Hartley v.
Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999)). However, supervisory liability under section 1983
may occur “‘when the supervisor personally participates in the alleged constitutional violation or
when there is a causal connection between the actions of the supervising official and the alleged
deprivation.’” Valdes v. Crosby, 450 F.3d 1231, 1236 (11th Cir. 2006) (quoting Miller v. King, 384
F. 3d 1248, 1261 (11th Cir. 2004)). Based on the pleadings, there is no allegation that Defendant
Burnett personally participated in any alleged sexual assault of Plaintiff while she was in the City
of Sumiton Jail. In fact, Plaintiff’s Complaint pleads no facts suggesting Defendant Burnett was
even aware that Plaintiff has been arrested or was in custody. (See Doc. #1 at ¶¶ 13-15). The
question then is whether there is a sufficient causal connection between Defendant Burnett’s action
or inaction and Defendant Daugherty’s alleged sexual assault.
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A causal connection may be established when: 1) a “history of widespread abuse” puts the
responsible supervisor on notice of the need to correct the alleged deprivation, and he or she fails
to do so; 2) a supervisor’s custom or policy results in deliberate indifference to constitutional rights;
or 3) facts support an inference that the supervisor directed subordinates to act unlawfully or knew
that subordinates would act unlawfully and failed to stop them from doing so. Cottone v. Jenne, 326
F.3d 1352, 1360 (11th Cir. 2003). Here, the court must accept as true Plaintiff’s well-plead
allegations and, in light of that, it would be inappropriate to dismiss Plaintiff’s supervisory liability
section 1983 claims against Defendant Burnett.
Although not stated under the “Facts” heading, Plaintiff does allege that Defendant Burnett
was “aware of previous misconduct of Defendant Daugherty, but failed to correct those actions.”
(Doc. #1 at ¶ 23). Plaintiff also contends that Defendant Burnett “had knowledge of these acts and
the potential for this kind of action taken by Defendant Daugherty based upon previous similar acts
he had committed.” (Id. at ¶ 24). At this stage, these allegations may support a finding that
Defendant Burnett was aware of Defendant Daugherty’s previous alleged misconduct such that
Defendant Burnett was on notice of the alleged constitutional violations. Plaintiff has also alleged
facts that could support an inference that Defendant Burnett knew that Defendant Daugherty would
act unlawfully but failed to intervene or was deliberately indifferent. See Bd of Cnty. Comm’rs of
Bryan Cnty, Okla v. Brown, 520 U.S. 397, 410 (1997) (deliberate indifference exists when supervisor
disregards a known or obvious consequence of his action). Thus, Plaintiff’s section 1983 claims
against Defendant Burnett in his individual capacity are not subject to dismissal at this point.
Defendant Burnett argues that he is entitled to qualified immunity on Plaintiff’s section 1983
claims. The court recognizes that qualified immunity is not only immunity from liability, but also
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immunity from defending the suit itself. See e.g., Behrens v. Pelletier, 516 U.S. 299, 308 (1996);
Mitchell v. Forsyth, 472 U.S. 511, 525 (1985). A qualified immunity determination requires the
application of a multi-part test. First, a defendant must establish that he was acting within his
discretionary authority as a public employee when the conduct in question occurred. Townsend, 601
F.3d at 1158. Next, a plaintiff must demonstrate “‘that: (1) the defendant violated a constitutional
right, and (2) this right was clearly established at the time of the alleged violation.’” Id. (quoting
Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004)). In previous years, this two-step
inquiry had to be conducted in sequential order. That is, the court had to decide whether a right
existed (and whether it was violated) before deciding whether it was clearly established. Now,
however, courts may “‘exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first.’” Id. (quoting Pearson v. Callahan, 555 U.S.
223, 236 (2009)).
A district court may dismiss a complaint when the complaint contains allegations which will
clearly support the defense on the face of the complaint. Fortner v. Thomas, 983 F.2d 1024, 1028
(11th Cir. 1993). Assuming Plaintiff’s factual allegations are true, as the court must, this is not a
case where qualified immunity is due to be granted at this stage. Once limited, narrowly tailored
discovery takes place, Defendant’s qualified immunity defense may be reasserted. Therefore, the
court contemplates bifurcating discovery in this action in order to afford the parties an opportunity
to fully brief the qualified immunity issue. The court will discuss with the parties whether and how
to do so during a scheduling conference, to be conducted on a date to be determined by the court.

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3.

Invasion of Privacy, Assault and Battery, and Outrage Claims

Plaintiff’s claims against Defendant Burnett for invasion of privacy, assault and battery, and
outrage can only be premised upon a vicarious liability theory as Plaintiff has alleged no facts that
Defendant Burnett personally participated in the alleged sexual assault, had direct contact with
Plaintiff, or was even aware that Plaintiff was in custody. In order for Plaintiff to recover against
Defendant Burnett under a respondeat superior or vicarious liability theory, “it is necessary for the
plaintiff to establish the status of employer and employee - master and servant - and to establish that
the act was done within the scope of the employee’s employment.” Chamlee v. Johnson-Rast &
Hayes, 579 So. 2d 580, 582 (Ala. 1990); see also Hudson v. Muller, 653 So. 2d 942, 944 (Ala. 1995)
(“To recover against a defendant under a theory of respondeat superior, the plaintiff must establish
a status of employer and employee.”). Plaintiff’s Complaint alleges that Defendant Daugherty was
“employed by the City of Sumiton and the Sumiton Police Department” when the alleged sexual
assault took place. (Doc. #1 at ¶ 2). Therefore, based on Plaintiff’s allegations, Plaintiff cannot
establish the requisite employer-employee or master-servant relationship between Defendant Burnett
and Defendant Daugherty.
Moreover, it is well-established that, “as a matter of law, the doctrine of respondeat superior
does not hold supervisors, as co-employees, vicariously liable for the torts of their subordinates.”
Ware v. Timmons, 954 So. 2d 545, 555 (Ala. 2006). Accordingly, Defendant Burnett is not liable
for any alleged torts of Defendant Daugherty. See id. Plaintiff argues that these claims against
Defendant Burnett may proceed under Ala. Code. § 11-47-190. However, this argument is
misplaced as this particular code section pertains to municipal liability, not liability against city
officers in either their individual or official capacities. Additionally, to the extent Plaintiff asserts
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these claims against Defendant Burnett in his official capacity, they are due to be dismissed because
they are redundant as claims against the municipal entity Defendant Burnett represents. See Busby,
931 F.2d at 776 (noting that suits against municipal officers in their official capacities are
functionally equivalent to suits against municipalities and therefore, no need exists to bring officialcapacity actions against local government officials). Thus, Plaintiffs invasion of privacy, assault
and battery, and outrage claims against Defendant Burnett in both his individual and official
capacities are due to be dismissed.
4.

Negligent Retention, Training, and Supervision Claims

Plaintiffs claims against Defendant Burnett for negligent retention, training and supervision
are due to be dismissed because Alabama does not recognize a cause of action for a supervisor’s
negligent training or supervision of a subordinate. See e.g., Doe v. City of Demopolis, 799 F. Supp.
2d 1300, 1312 (S.D. Ala. 2011) (“Alabama law does not recognize a cause of action against a
supervisor or municipality for negligent training or supervision.”); Ott v. City of Mobile, 169 F.
Supp. 2d 1301, 1314-15 (S.D. Ala. 2001) (dismissing a negligent retention, training, and supervision
claim against a municipality because “Alabama recognizes no cause of action against a supervisor
for negligent failure to supervise or train a subordinate. . . .”). Accordingly, Plaintiff’s claims for
negligent retention, training, and supervision fail to state claim upon which relief can be granted and
those claims are due to be dismissed.
Plaintiff argues that her negligent retention claim should not be dismissed because
Defendants have not cited any authority stating that Plaintiff may not maintain such a cause of
action. The court is not persuaded by Plaintiff’s argument on this point. In a similar action in the
Middle District of Alabama, the court granted summary judgment in favor a city police chief on a
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state law claim for negligent training, supervision, and retention. See Borton v. City of Dothan, 734
F. Supp. 2d 1237, 1262 (M.D. Ala. 2010) (emphasis added). The Borton court reached its
conclusion after citing the general rule that a police chief could not be liable for negligent training
or supervision because “no such cause of action exists under Alabama law. . . .” Borton, 734 F.
Supp. 2d at 1258 (citing Hamilton v. City of Jackson, 508 F. Supp. 2d 1045, 1054-58 (S.D. Ala.
2007)). Additionally, other courts within the Eleventh Circuit have granted summary judgment in
favor of a police chief on claims for negligent retention because a police chief is not deemed an
officer’s employer for purposes of this claim. See Matthews v. City of Gulfport, 72 F. Supp. 2d
1328, 1340-41 (M.D. Fla. 1999). Therefore, in addition to Plaintiff’s negligent training and
supervision claims, Plaintiff’s negligent retention claim is due to be dismissed as well.
B.

Plaintiff’s Claims Against Defendant City of Sumiton
1.

Section 1983 Claims

The City of Sumiton may be found liable under section 1983 only if the City itself caused the
alleged constitutional violation. See City of Canton v. Harris, 489 U.S. 378, 385 (1989). It is well
established that a municipality “may not be sued under [Section] 1983 for an injury inflicted solely
by its employees or agents.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Rather, “it
is when execution of a government’s policy or custom, whether made by its lawmakers or 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 [section] 1983.” Id. And, there must be “a direct
causal link between a municipal policy or custom and the alleged constitutional deprivation.”
Harris, 489 U.S. at 385.

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Here, Plaintiff alleges that Defendant City of Sumiton failed to take action to prevent sexual
assualts at the jail thereby sanctioning sexually hostile work environments and assualts. (Doc. #1
at ¶ 29). Plaintiff further states that “[i]t was custom among guards, officers and employees of the
jail and Police Department to subject female prisoners to a sexually hostile environment and assaults,
and it was the policy and custom of the officials capable of stopping the hostile environment to make
no effort to rescue those arrested or incarcerated from the sexually hostile work environment.” (Id.
at ¶ 30). Taking these allegations as true, as it must, the court is not prepared at this stage to dismiss
Plaintiff’s section 1983 claims against Defendant City of Sumiton. Plaintiff has pleaded facts that,
if established, may prove that Defendant City of Sumiton permitted a widespread practice that
“although not authorized by written law or express municipal policy [was] ‘so permanent and well
settled as to constitute a ‘custom or usage’ with force of law.” Brown v. City of Fort Lauderdale,
923 F.2d 1474, 1481 (11th Cir. 1991) (internal citations omitted). Additionally, Plaintiff’s
allegations could support an inference that certain behavior by jail personnel was deemed authorized
by City of Sumiton policymaking officials “because they must have known about it and failed to stop
it.” See id. Accordingly, Plaintiffs Section 1983 claims against Defendant City of Sumiton are not
subject to dismissal at this point.
2.

Invasion of Privacy, Assault and Battery and Outrage Claims

Plaintiff’s intentional tort claims against Defendant City of Sumiton fail for two reasons: (1)
Plaintiff has not filed a notice of claim with the City, and (2) the City cannot be liable for the
intentional torts of its employees.
a.

Plaintiff’s Claims Are Barred for Failure to File Notice of Claim

Plaintiff’s claims for invasion of privacy, assault and battery, and outrage are barred because
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Plaintiff failed to file a notice of claim with the City of Sumiton. Alabama Code § 11-47-23 (1975)
provides in pertinent part that “Claims for damages growing out of torts shall be presented within
six months from the accrual thereof or shall be barred.” Ala. Code § 11-47-23; see also id. at § 1147-192 (1975). The failure to file a claim with the City within six months of the accrual of the claim
is a bar to any recovery against the City. See Sows v. Morgan, 40 F. Supp. 2d 1345, 1365 (M.D. Ala.
1999).
Here, Plaintiff alleges that the sexual assault occurred “on or about the middle of October
2010.” (Doc. #1 at ¶ 13). Plaintiff has presented no evidence that she filed a notice of claim by the
middle of April 2011. Indeed, Plaintiff appears to concede that she in fact did not file any notice of
claim with the City of Sumiton. (See Doc. #12, pg. 14). Because Plaintiff did not file a notice of
claim, her state law tort claims for invasion of privacy, assault and battery, and outrage are barred
and are due to be dismissed. See Ala. Code § 11-47-23; Sows, 40 F. Supp. 2d at 1365. Moreover,
even if Plaintiff had filed a notice of claim (and, again, to be clear, she did not), her intentional tort
claims against the City of Sumiton are nevertheless due to be dismissed.
b.

City of Sumiton is Not Liable for Employee’s Intentional Torts

Plaintiff’s intentional tort claims against the City of Sumiton also fail because Alabama Code
§ 11-47-190 (1975) expressly restricts “liability of municipalities to injury suffered through
‘negligent, carelessness, or unskillfulness.’” Hillard v. City of Huntsville, 585 So. 2d 889, 892 (Ala.
1991) (quoting Ala. Code § 11-47-190); see also Brown v. City of Huntsville, 608 F.3d 724, 743
(11th Cir. 2010) (“Under § 11-47-190, a city is liable for negligent acts of its employees within the
scope of their employment, but not intentional torts of its employees.”). As Plaintiff concedes, her
assault, battery, and outrage claims are intentional torts for which the City of Sumiton may not be
12

liable. (See Doc. #12). Furthermore, invasion of privacy is an intentional tort.3 Therefore, because
Plaintiff’s claims for invasion of privacy, assault and battery, and outrage involve intentional torts,
these claims are due to be dismissed. See Ala. Code § 11-47-190; see also e.g., Brown, 608 F. 3d
at 743.
3.

Negligent Retention, Negligent Training, and Negligent Supervision

Like Plaintiff’s intentional tort claims against the City of Sumiton, Plaintiff’s claims for
negligent retention, training, and supervision are also due to be dismissed because Plaintiff failed
to file a notice of claim with the City of Sumiton within six months of the alleged wrong. See
Alabama Code § 11-47-23 (1975) (“Claims for damages growing out of torts shall be presented
within six months from the accrual thereof or shall be barred.”); see also supra Part II.B.2.a.
Plaintiff’s failure to file a notice of claim within six months of the alleged sexual assault bars any
recovery against the City of Sumiton for negligent retention, training, or supervision. See Ala. Code
§ 11-47-23; Sows, 40 F. Supp. 2d at 1365. Therefore, Plaintiff’s claims against the City of Sumiton
for negligent retention, training, and supervision are due to be dismissed.

3

Plaintiff asserts that Defendant’s activities “constituted a wrongful instrusion into Plaintiff’s personal space.”
(Doc. #1 at ¶ 35). Under Alabama law, invasion of privacy consists of four distinct wrongs: “(1) intruding into the
plaintiff’s physical solitude or seclusion; (2) giving publicity to private information about the plaintiff that violates
ordinary decency; (3) putting the plaintiff in a false, but not necessarily defamatory, position in the public eye; or (4)
appropriating some element of the plaintiff’s personality for a commercial use.” Johnston v. Fuller, 706 So. 2d 700, 701
(1997). The only possible alleged wrong here is intrusion into physical solitude or seclusion. The Alabama Supreme
Court has adopted the Restatement (Second) of Torts definition for the wrongful-intrusion branch of this tort. See
Phillips v. Smalley Maint. Servs., Inc., 435 So. 2d 705 (Ala. 1983). As the Second Restatement explains, “[o]ne who
intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns
is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable
person.” Restatement (Second) of Torts § 652B (1977) (emphasis added).

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IV.

CONCLUSION
For the reasons stated above, Defendants’ Motion (Doc. #6) is due to be granted in part and

denied in part.
Plaintiff’s “official capacity” section 1983 claim (Count One) against Defendant Burnett is
due to be dismissed with prejudice, but her section 1983 claim (Count One) will not be dismissed
against Defendant Burnett in his individual capacity.
Additionally, Plaintiff’s negligent retention, training, and supervision claims (Count Five)
are due to be dismissed with prejudice against Defendant Burnett in his official and individual
capacities.
The following claims are also due to be dismissed with prejudice against Defendant City of
Sumiton:
(1)

Count Two: Invasion of Privacy;

(2)

Count Three: Assault and Battery:

(3)

Count Four: Outrage; and

(4)

Count Five: Negligent Retention, Training, and Supervision.

Finally, all claims against Defendants City of Sumiton Police Department and City of
Sumiton Jail are due to be dismissed with prejudice.
A separate order consistent with this Memorandum Opinion will be issued.
DONE and ORDERED this

7th

day of January, 2013.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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