Smith v. Sumiton, City of et al

Filing 37

MEMORANDUM OPINION-re: Motion to Dismiss Second Amended Complaint 30 . Signed by Judge R David Proctor on 7/2/2013. (AVC)

FILED
2013 Jul-02 AM 08:49
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,
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 the City of Sumiton,
Alabama’s (“City of Sumiton”) Motion to Dismiss Second Amended Complaint (Doc. #30), filed
on May 29, 2013. The Motion (Doc. #30) has been fully briefed. (See Docs. #301, #34, #35). For
the reasons outlined below, Defendants’ Motion (Doc. #30) is due to be granted.
I.

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

Complaint contains five counts to relief against Defendants. (See Doc. #1). Plaintiff asserted claims
under 42 U.S.C. § 1983 for alleged 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

Defendants have incorporated the legal authority and arguments submitted in support of their motion for
reconsideration (Doc. #20-1) as if fully set forth in their Motion to Dismiss Second Amended Complaint.

#1). On January 7, 2013 the court granted in part and denied in part Defendants Burnett and City
of Sumiton’s Motion to Dismiss (Doc. #6). (See Docs. #16, #17).2 On January 16, 2013, Defendants
Burnett and City of Sumiton filed a Motion to Reconsider asking the court to reconsider three
specific legal determinations and to enter an order dismissing Plaintiff’s remaining claims. (Doc.
#20). After a conference call on March 12, 2013, the court terminated Defendants’ Motion to
Reconsider as moot and instructed Plaintiff to file an Amended Complaint restating factual
allegations to support her § 1983 claims. (Doc. #24). On May 13, 2013, Plaintiff filed a First
Amended Complaint that contained claims and allegations beyond the scope of the court’s March
12, 2013 order. (Doc. #25). After receiving leave of court to do so, Plaintiff then filed a Second
Amended Complaint (Doc. #29), which became the operative pleading and it is that document which
is the subject of the instant Motion to Dismiss. Plaintiff’s Second Amended Complaint asserts §
1983 claims against Defendants Burnett, City of Sumiton, and Estate of Chris Daugherty3 for
violations of the Fourth, Eighth,4 and Fourteenth Amendments to the United States Constitution.5
2

The court dismissed with prejudice Plaintiff’s § 1983 claims against Defendant Burnett in his official capacity
and Plaintiff’s claims against Defendant Burnett for invasion of privacy, assault and battery, outrage, and negligent
retention, training, and supervision. The court also dismissed with prejudice Plaintiff’s claims against Defendant City
of Sumiton for invasion of privacy, assault and battery, outrage, and negligent retention, training, and supervision. The
court further dismissed with prejudice all claims against City of Sumiton Police Department and City of Sumiton Jail.
(See Doc. #17).
3

On November 28, 2012 the court dismissed without Plaintiff’s claims against Defendant Chris Daugherty.
(Doc. #15). As explained in the order, Defendant Daugherty was dead at the time this action was filed and therefore
could not be a party to this lawsuit. (See Doc. #15). Although Plaintiff’s Second Amended Complaint names the Estate
of Chris Daugherty as a Defendant, the court dismissed all claims against this Defendant as Plaintiff failed to demonstrate
that an estate had been established or that any such purported estate was properly served within 120 days of filing the
Complaint. (See Doc. #36).
4

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 (11th 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 § 1983 claims asserted on the basis of Eighth
Amendment violations are due to be dismissed because Plaintiff was an arrestee or pretrial detainee and not an individual

2

Although not named under the “Parties” heading, Plaintiff includes factual allegations against
Defendants City of Sumiton Jail and City of Sumiton Police Department. (See Doc. #29 at ¶¶ 16,
20, 21, 23). However, as explained by this court in a prior Memorandum Opinion, these entities are
not subject to suit6 and were dismissed from this action by the court’s January 7, 2013 order. (See
Doc. #17).
The factual allegations contained in Plaintiff’s Second Amended Complaint are as follows.
Sometime in October 2010, a Sumiton police officer arrested Plaintiff and took her to the City of
Sumiton Jail because she had unpaid traffic violations. (Doc. #29 at ¶ 12). Plaintiff remained in the
jail overnight. (Id. at ¶ 13). 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 ¶ 14). Prior to October 2010, while employed by the City of Sumiton,
Defendant Daugherty “committed sexual harassment and/or sexual assault against individuals
arrested or incarcerated by the City of Sumiton.” (Id. at ¶ 15).

convicted of a crime. See Cottrell, 85 F.3d at 1490.
5

The Second Amended Complaint contains references to the state law claims previously dismissed by the court.
(See Doc. #29 at ¶ 1). However, the substantive content of the Second Amended Complaint does not seek relief under
these state law theories. Therefore, the court construes the passing reference to the state law claims as a scrivener’s error.
6

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) (stating that a jail is not a legal entity subject to suit); Yeager v. Hardy, 2011 WL 736396, at
*1 (M.D. Ala. Feb. 2, 2011) (a city jail is “not a legal entity and, therefore, is not subject to suit. . . .”).

3

Defendants Burnett and City of Sumiton each “knew or should have known of Defendant
Daugherty’s pattern and practice of sexual assault, misconduct, harassment and abuse of female
inmates, detainees, and arrestees.” (Id. at ¶ 16).7 According to Plaintiff, these Defendants failed to
take adequate action to prevent Plaintiff’s treatment. (Id.). Defendant Burnett “failed to promulgate,
adopt, implement and enforce the policies, rules and regulations to safeguard female inmates,
including Plaintiff” and “failed to prevent abuse against Plaintiff. . . .” (Id. at ¶ 18). Plaintiff also
alleges that Defendant Burnett failed to adequately supervise or punish Defendant Daugherty for his
actions before and after Plaintiff’s assault. (Id. at ¶ 19). Plaintiff contends that Defendants Burnett
and City of Sumiton “were on notice that there were inadequate policies and procedures and that
Defendant Daugherty had committed and had the propensity to commit sexual assault and
harassment against females.” (Id. at ¶ 21). Plaintiff further alleges that “[i]t was the custom among
guards, officers, and employees of the [Sumiton Jail and Police Department] to subject the female
prisoners to a sexually hostile working environment and assaults” and that “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 ¶ 38). According to
Plaintiff, this conduct amounts to “actual participating and deliberate indifference to the sexual
harassment suffered by Plaintiff. . . .” (Id. at ¶ 23).

7

These averments are repeated in paragraph 31 of the Second Amended Complaint except that Plaintiff adds
that “Defendants and its officials knew, should have known, or participated in acts of sexual harassment and abuse...and
were aware of previous misconduct of Defendant Daugherty, but failed to correct those actions.” “Upon information
and belief, other individuals have been subjected to the same sexual assault and sexual abuse by Defendant Daugherty.”
(Id. at ¶ 31). The same allegation is essentially repeated once again in paragraph 32, which states that “Defendants had
knowledge of these acts and the potential for this kind of action by Defendant Daugherty based on previous similar acts
he had commited.” (Id. at ¶ 32).

4

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
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, 556 U.S. 662, 678 (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, 556 U.S.
5

at 68. 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,
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.

Plaintiff’s § 1983 Claims Against Defendant City of Sumiton

“The Supreme Court has placed strict limitations on municipal liability under § 1983.” Gold
v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). It is well-established that a municipality
may not be sued under § 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
§ 1983.” Id. To state a claim against a municipality under § 1983, “a plaintiff must show: (1) that
[her] constitutional rights were violated; (2) that the municipality had a custom or policy that
constituted deliberate indifference to that constitutional right; and (3) that the policy or custom
caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). A policy is
defined as a “decision that is officially adopted by the municipality . . . .” Sewell v. Town of Lake
Hamilton, 117 F.3d 488, 489 (11th Cir. 1997) (citing Brown v. City of Fort Lauderdale, 923 F.2d
1474, 1479-80 (11th Cir. 1991)). A custom is defined as a “practice that is so settled and permanent
6

that it takes on the force of law.” Id. (citing Monell, 438 U.S. at 690-94).
Here, Plaintiff has not alleged a sufficient factual basis for her claim against Defendant City
of Sumiton. (Doc. #29 at ¶ 13-14). For obvious reasons, Plaintiff did not aver any facts relating to
a formal policy adopted by the City commanding its officers to commit sexual assaults and
harassment against arrested or detained individuals. Likewise, Plaintiff has not stated with any
factual specificity a custom practiced by Defendant City of Sumiton allowing such behavior on the
part of its officers. Plaintiff alleged the City was “on notice that there were inadequate policies and
procedures and that Defendant Daughtery had committed and had the propensity to commit sexual
assault and harassment against females. [Defendant City of Sumiton] failed to correct the issues
with Defendant Daughtery prior to the sexual assault and harassment of Plaintiff Smith.” (Doc. #29
at ¶ 21). However, Plaintiff does not point explicitly to any prior instances of Defendant Daughtery’s
supposed history of harassment of female inmates. Further, Plaintiff does not aver how Defendant
City of Sumiton knew or should have known of Defendant Daughter’s alleged prior incidents.
Without any additional facts regarding prior assaults or harassment by Defendant Daughtery or any
other officer in the City of Sumiton, Plaintiff’s claim that Defendant City of Sumiton implemented
a custom allowing assaults and harassment of arrestees is nothing more than a conclusory allegation.
See Galloway v. City of Abbeville, 871 F.Supp.2d 1298, 1309-10 (M.D. Ala. 2012) (dismissing a
complaint that fails to point to a “specific policy constituting deliberate indifference,” opining that
“[c]ourts in this district have time and again called for something more than a bare-bones, passing
reference to a policy or custom to state a claim against a municipality.”).
Of course, a municipality also may be held liable on a claim of inadequate training where “a
municipality’s failure to train its employees in a relevant respect evidences a ‘deliberate indifference’
to the rights of its inhabitants [such that the failure to train] can be properly thought of as a city
7

‘policy or custom’ that is actionable under § 1983.” City of Canton v. Harris, 489 U.S. 378, 389
(1989). To show “deliberate indifference,” a plaintiff must present some evidence to demonstrate
“that the municipality knew of a need to train and/or supervise in a particular area and the
municipality made a deliberate choice not to take any action.” Gold, 151 F.3d at 1350. The
Eleventh Circuit has held repeatedly “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 or supervise.”
Id. at 1351. A municipality can rely often on its officers’ common sense rather than implementing
formal training: “[w]here the proper response . . . is obvious to all without training or supervision,
then the failure to train or supervise is generally not so likely to produce a wrong decision as to
support an inference of deliberate indifference by city policymakers to the need to train or
supervise.” Walker v. New York, 974 F.2d 293, 299-300 (2nd Cir. 1992) (internal quotation marks
omitted); see also Sewell, 117 F.3d at 490 (stating that the Eleventh Circuit is “persuaded that the
Second Circuit’s interpretations of City of Canton is correct.”). Nevertheless, the Second Circuit did
note that “[a] pattern of known misconduct, however, may be sufficient to change reasonable
reliance into deliberate indifference.” See Walker, 974 F.2d at 301.
Nothing in the pleadings suggests that police do not know (and, indeed, they should in fact
know) that any act of any act of sexual assault or harassment against arrested or detained individuals
is illegal and not tolerated while they are acting in their official positions. The only real question
before the court now is whether Plaintiff has alleged with enough factual specificity that a pattern
of misconduct by the officers has made Defendant City of Sumiton’s alleged lack of training or
supervision rise to the level of deliberate indifference.
The court concludes that Plaintiff’s allegations do not rise to the level of the well-pleaded
factual allegations necessary to meet the modern heightened pleading standard. See Iqbal, 556 U.S.
8

662; Twombly, 550 U.S. 556. Plaintiff alleged that “Defendant Daughtery committed sexual
harassment and/or sexual assault against individuals arrested or incarcerated by the City of Sumiton”
(Doc. #29 at ¶ 19), but she has not actually pointed to any specific facts, dates, names of the victims,
or the number and frequency of these alleged prior incidents. While Rule 8 does not mandate
detailed factual allegations within a complaint, it does require “more than labels and conclusions,
[or] a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Because
Plaintiff has not alleged with factual specificity any prior instances of sexual assault or harassment
by Defendant Daughtery or other officers, the court must dismiss these allegations as conclusory
statements.8 See Doe ex rel. Doe v. City of Demopolis, 461 F. App’x. 915 (11th Cir. 2012)
(affirming dismissal of municipal liability claims where claimant’s complaint only averred rumors
of prior sexually inappropriate conduct); Barr v. Gee, 437 F. App’x. 865, 874-75 (11th Cir. 2011)
(affirming dismissal of municipal liability claims because “[a]lthough Barr asserted that the County
had a custom of tolerating violations of his and his child’s constitutional rights, he offered no factual
allegations to support a plausible inference that such a custom existed.”); Gray v. City of Roswell,
486 F. App’x. 798, 800-01 (11th Cir. 2012) (affirming dismissal of municipal liability claims
because the claimant did not “recite any facts or policies which would support a claim against the
City. [Claimant] only makes threadbare recitals of the elements of a cause of action, supported by

8

Although Plaintiff cites a recent case with similar facts in which a court in this district denied a defendant
municipality’s motion to dismiss, this court finds the facts alleged in that complaint distinguishable from those in the
instant case. In Franklin v. Curry, the Plaintiff alleged specifically in her complaint that the offending officer “abused
another female inmate and had inappropriate sexual relations with yet another.” Franklin v. Curry, 2012 WL 6755060
(N.D. Ala. 2012). These specific references point to actual prior incidents and form the basis for a well-pleaded factual
complaint, thus making the claim plausible enough to survive a motion to dismiss. In the instant case, Plaintiff pointed
only to elements of the claim, rather than specific allegations of fact showing the existence of possible pattern of
misconduct in the municipality.

9

mere conclusory statements.”).9 Without any additional evidence, Plaintiff’s remaining well-pleaded
facts, accepted as true, do not aver facts against Defendant City of Sumiton sufficient to make her
claim plausible. Plaintiff has not alleged any facts suggesting she may discover evidence supporting
her claim. Thus, Plaintiff’s 42 U.S.C. § 1983 claims against Defendant City of Sumiton must be
dismissed.
B.

Plaintiff’s § 1983 Claims Against Defendant Burnett10

“It is well established in this circuit that supervisory officials are not liable under § 1983 for
the unconstitutional acts of their subordinates ‘on the basis of respondeat superior or vicarious
liability.’” Hartley by Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999) (quoting Belcher
v. City of Foley, 30 F.3d 1390, 1394 (11th Cir. 1994)). Instead, “[t]he standard by which a
supervisor is held liable in [his] individual capacity for the actions of a subordinate is extremely
rigorous.” Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003) (quoting Braddy v. Fla. Dep’t
of Labor & Empl. Sec., 133 F.3d 797, 802 (11th Cir. 1998)). In determining when a supervisor can
be held liable in his individual capacity, the Eleventh Circuit has held that “[s]upervisory liability
occurs either when the supervisor personally participates in the alleged constitutional violation or
when there is a causal connection between actions of the supervising official and the alleged
constitutional deprivation.” Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988). In this case,
Plaintiff has not alleged Defendant Burnett personally participated in the alleged violations. Still,
Plaintiff can survive Defendant’s motion to dismiss if she properly establishes a causal connection

9

Although these unpublished decisions of the Eleventh Circuit have no precedential value, the court finds they
are each well reasoned.
10

By previous order (See Doc. #17), Plaintiff’s claims against Defendant Burnett in his official capacity were
dismissed with prejudice. Thus, Plaintiff’s Second Amended Complaint is construed as only stating a § 1983 claim
against Defendant Burnett in his individual capacity.

10

between Defendant Burnett’s actions and the alleged constitutional deprivation.11
In the Eleventh Circuit, a causal connection can be shown in three ways:
“[B]y evidence of (1) ‘a custom or policy that results in deliberate indifference to
constitutional rights,’ (2) ‘facts that support an inference that the supervisor[]
directed the subordinates to act unlawfully or knew that the subordinates would act
unlawfully and failed to stop them from doing so,’ or (3) ‘a history of widespread
abuse’ that notified the supervisor of the need to correct the alleged deprivation, but
[s]he failed to do so.”
Campbell v. Johnson, 586 F.3d 835, 840 (11th Cir. 2009) (quoting West v. Tillman, 496 F.3d 1321,
1327 (11th Cir. 2007)). In order for a claimant to allege a history of widespread abuse, the abuse
must be “obvious, flagrant, rampant and of continued duration, rather than isolated occurrences.”
Doe v. Sch. Bd. of Broward Cnty., Fla., 604 F.3d 1248, 1266 (11th Cir. 2011) (quoting Hartley v.
Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999)).
The court finds Plaintiff has not alleged facts with sufficient specificity that show a causal
connection existed between Defendant Burnett’s actions and Plaintiff’s alleged deprivation. First,
Plaintiff has not stated any facts to show a policy or custom created by Defendant Burnett led to
deliberate indifference of constitutional deprivations. Plaintiff stated in her Second Amended
Complaint that “Defendant Burnett failed to promulgate, adopt, implement, and enforce the policies,
rules and regulations to safeguard the female inmates, including Plaintiff Smith, and failed to prevent
abuse against Plaintiff Smith.” (Doc. #29 at ¶ 18). As espoused above in the dismissal of Plaintiff’s
claims against Defendant City of Sumiton, in order to allege a custom that is “so settled and
11

Defendant argues “[p]ost-Iqbal, there can be no § 1983 liability against a supervisor who did not personally
participate in the alleged constitutional violation, and who took no affirmative action to directly cause the alleged
constitutional violation.” (Doc. #20-1 at ¶ 18). However, in its post-Iqbal case law, the Eleventh Circuit has not limited
supervisory liability to merely personal participation on the part of the supervisor, but instead has continued to allow
liability with sufficient allegations of a “causal connection between supervisory actions and the alleged deprivation.”
Reid v. Sec’y Fla. Dep’t of Corr., 486 F. App’x. 848, 852 (11th Cir. 2012); See also Bryant v. Jones, 575 F.3d 1281,
1299-1300 (11th Cir. 2009); German v. Broward Co. Sheriff’s Office, 439 F. App’x. 867, 870 (11th Cir. 2012); Malone
v. Butler, 2012 U.S. Dist. LEXIS 127370 (N.D. Ala. 2012); Evans v. Jefferson Cnty. Comm’n, 2012 U.S. Dist. LEXIS
67737 (N.D. Ala. 2012); Bell v. Holder, 2011 U.S. Dist. LEXIS 153963 (M.D. Ala. 2011).

11

permanent that it takes on the force of law,” Plaintiff must cite some factual basis supporting that
contention. In order to satisfy the post-Iqbal heightened pleading standard, Plaintiff must cite at least
some tangible evidence of prior incidents to show the possible existence of a permanent custom
implemented by Defendant Burnett. Plaintiff’s allegations specify no prior instances of any sexual
assaults or harassment (other than mere sweeping conclusory allegations of their existence). While
Rule 8 does not mandate detailed factual allegations within a complaint, it does require “more than
labels and conclusions, [or] a formulaic recitation of the elements of a cause of action.” Twombly,
550 U.S. at 555; see also Barr, 437 F. App’x. at 875-76 (affirming the dismissal of a claimant’s
complaint because he “failed to identify the purported policies or customs” and merely asserted them
“without factual support.”); Doe v. Ga. Dep’t of Corrs., 2013 WL 820394 (M.D. Ga. 2013)
(dismissing a claimant’s complaint because it made “only the base accusation that the [d]efendants
followed some custom or practice that amounted to deliberate indifference to her safety,” despite
including some facts regarding two prior sexual assaults.).
Second, Plaintiff does not allege Defendant Burnett directed his subordinates to act
unlawfully, but merely states that Defendant Burnett “knew or should have known of Defendant
Daughtery’s pattern and practice of sexual assault, misconduct, harassment and abuse of female
inmates, detainees and arrestees . . . [and] failed to take adequate action to prevent the abuse which
Plaintiff suffered.” (Doc. #29 at ¶ 16). At best, Plaintiff simply restates the element of the cause of
action here. Plaintiff avers Defendant Burnett knew or should have know of a pattern of assault and
harassment, but fails to provide a factual basis for that pattern of misconduct. And, without any
factual allegations, the court is unclear what information Defendant Burnett knew or should have
known that would create a causal connection.
Finally, Plaintiff has not pointed to any widespread abuse that would satisfy the obvious and
12

flagrant standard necessary to establish a causal connection. Plaintiff states in her amended pleading
that “Defendant Daughtery committed sexual harassment and/or sexual assault against individuals
arrested or incarcerated by the City of Sumiton.” (Id. at ¶ 15). However, she has not alleged any
specific facts, dates, or the frequency or number of these supposed prior incidents. Not only does
Plaintiff’s pleading not rise to the heightened standard necessary to allege obvious and flagrant
widespread abuse, but the pleading does not cite a single fact pointing to actual prior deprivations.
See Walker v. Freeman, 2009 WL 1956366 (N.D. Ga. 2009) (dismissing a claimant’s complaint
because he did not “allege sufficient facts to allow the [c]ourt to make a reasonable inference that
[defendant] has previously committed similar acts against others being held at the jail,” but instead
“offered only his conclusory allegation of [defendant]’s prior knowledge). Plaintiff’s complaint has
not satisfied that standard in alleging a history of widespread abuse existed under Defendant Burnett.
Thus, in applying the facial plausibility standard, the court must dismiss all conclusory
allegations pled by Plaintiff. In determining the claim’s plausibility given the remaining wellpleaded facts, the court is left with no allegations regarding prior incidents of misconduct by any
subordinate under Defendant Burnett. Thus, as Plaintiff has not alleged any evidence regarding a
causal connection between Defendant Burnett’s actions and the constitutional deprivation suffered
by Plaintiff Smith, Defendant Burnett is not subject to supervisory liability. Plaintiff’s claims against
Defendant Burnett must be dismissed.
Defendant Burnett has also raised the defense of qualified immunity. (Doc. #20-1). The
defense of qualified immunity “completely protects government officials performing discretionary
functions from suit in their individual capacities unless their conduct violates ‘clearly established
statutory or constitutional rights of which a reasonable person would have known.’” Gonzalez, 325
F.3d at 1233 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Because the court has found
13

Plaintiff’s § 1983 allegations against Defendant Burnett for supervisory liability do not state a claim,
the court need not fully address the question of Defendant Burnett’s qualified immunity affirmative
defense. Simply stated, Plaintiff has not shown that Defendant Burnett violated her constitutional
rights, much less that a reasonable police officer in his position would know he was violating her
well-established federal rights at the time. Thus, Defendant Burnett is in the alternative entitled to
qualified immunity on Plaintiff’s claims. See Gonzalez v. Reno, 325 F. 3d 1228, 1233 (11th Cir.
2003) (noting that because qualified immunity is a defense to standing trial and facing other burdens
of litigation, “[i]t is therefore appropriate for a district court to grant the defense of qualified
immunity at the motion to dismiss stage if the complaint ‘fails to allege the violation of a clearly
established constitutional right.’”) (quoting Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir.
2001)).
IV.

CONCLUSION
For the reasons discussed above, Defendants’ Motion to Dismiss (Doc. #30) Plaintiff’s

Amended Complaint (Doc. #29) is due to be granted. An order consistent with this memorandum
opinion will be entered.
DONE and ORDERED this

2nd

day of July, 2013.

___________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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