D.T. et al v. Baldwin County, Alabama et al
Order granting in part denying in part 14 MOTION to Dismiss filed by defendants Kolby and McGowan. The motion is granted with respect to the plaintiff's Eighth and Fourteenth Amendment claims and granted with respect to the plaintiff's w antonness claim. These claims are dismissed. The motion isgranted with respect to all claims against fictitious defendants. All claims as againstfictitious defendants are dismissed without prejudice. In all other respects, the motion to dismiss is de nied. This action will proceed against defendants Kolby and McGowan on the plaintiff's conspiracy claims under Section 1983 and state law. Plaintiff is ordered to SHOW CAUSE by 10/10/2011 for his failure to comply with the Court's order (Doc. 24) regarding the real-party-in-interest issue. Signed by Chief Judge William H. Steele on 9/27/2011. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
) CIVIL ACTION 11-0094-WS-N
BALDWIN COUNTY, ALABAMA, etc., )
This matter is before the Court on the motion to dismiss filed by defendants
Kolby1 and McGowan. (Doc. 14). The parties have filed briefs in support of their
respective positions, (Docs. 15, 29, 31), and the motion is ripe for resolution. After
careful consideration, the Court concludes that the motion is due to be granted in part and
denied in part.
The complaint alleges that the plaintiff, as a pretrial detainee at the Baldwin
County Corrections Center, was sexually assaulted by an inmate. Against the movants,
the complaint alleges violations of the Eighth and Fourteenth Amendment; a Section
1983 claim for conspiracy to cover up; wantonness; and civil conspiracy under state law.2
The movants state that this defendant’s actual name is Kolbe but, as the plaintiff is
master of his complaint, the Court utilizes the spelling employed therein.
The plaintiff’s claims against all other named defendants have been dismissed by
agreement of the parties.
I. Fictitious Defendants.
The complaint lists as defendants “A-Z,” who are identified only as “individual
correctional officers.” (Doc. 1 at 1, 4).
The movants, (Doc. 15 at 23-24), correctly note that, “[a]s a general matter,
fictitious-party pleading is not permitted in federal court.” Richardson v. Johnson, 598
F.3d 734, 738 (11th Cir. 2010). There is a “limited exception” to this rule “when the
plaintiff’s description of the defendant is so specific as to be at the very worst,
surplusage.” Id. (internal quotes omitted). Simply identifying a defendant as “John Doe
(Unknown Legal Name), Guard, Charlotte Correctional Institute” does not implicate this
exception, because it is “insufficient to identify the defendant among the many guards
employed at CCI.” Id. Dismissal of a purported claim against such an inadequately
identified defendant is proper. Id. Listing fictitious defendants as “individual
correctional officers” is equally insufficient. Accordingly, all claims against fictitious
defendants will be dismissed, without prejudice to the plaintiff’s ability to file a timely
amended complaint asserting claims against additional named defendants.
II. Eighth Amendment.
The plaintiff concedes that, as a pretrial detainee, he has no rights under the Eighth
Amendment and that the motion to dismiss is well taken in this regard. (Doc. 29 at 1).
III. Fourteenth Amendment.
This count alleges that the movants violated his rights by “failing to protect him
against being raped and sexually assaulted by” the perpetrator. (Doc. 1 at 8). The
movants invoke qualified immunity. (Doc. 15 at 8-9).
“[G]overnment officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “[T]he burden is first on the
defendant to establish that the allegedly unconstitutional conduct occurred while he was
acting within the scope of his discretionary authority.” Harbert International, Inc. v.
James, 157 F.3d 1271, 1281 (11th Cir. 1998). The burden then shifts to the plaintiff to
show that the defendant’s conduct “violated a clearly established statutory or
constitutional right.” Grayden v. Rhodes, 345 F.3d 1225, 1231 (11th Cir. 2003). The
inquiry may be broken down into two parts: (1) whether the facts alleged, if true, would
establish a violation of the plaintiff=s rights; and (2) whether these rights were clearly
established at the time of the alleged deprivation. Id.
The plaintiff admits that the movants “were engaged in a discretionary duties [sic]
at all relevant times herein.” (Doc. 29 at 6). The burden thus lies with the plaintiff to
show that their conduct violated a clearly established Fourteenth Amendment right. The
complaint, however, alleges no Fourteenth Amendment violation by the movants. The
complaint’s exhaustive statement of facts concerning the assault and events leading up to
it does not allege that the movants were on duty or on site during the two days the
plaintiff was incarcerated; indeed, it does not reference them at all. In fact, every
reference to individuals (other than the perpetrator and other prisoners) at the facility at
and before the time of the assault is to “unnamed correctional officer[s].” (Doc. 1 at 5-6,
9-10). The movants are mentioned in the complaint only with respect to their contact
with the plaintiff and his parents well after the assault occurred. (Id. at 13-15, 17-18).3
The facts alleged in the complaint, if true, could not possibly establish a violation of the
plaintiff’s Fourteenth Amendment rights by the movants, because it does not implicate
them in any fashion in the events culminating in the assault. For want of an alleged
The plaintiff’s brief confirms that this claim is based exclusively on the acts and
omissions of unnamed corrections officers not the movants. (Doc. 29 at 8-9 (it was the unnamed
corrections officers who were deliberately indifferent to the risk of assault)).
constitutional violation by the movants, they are entitled to qualified immunity and
dismissal of this claim.
IV. Section 1983 Conspiracy.
The movants assert protection under the intra-corporate conspiracy doctrine.
(Doc. 15 at 16-17). “[U]nder that doctrine, a corporation cannot conspire with its
employees, and its employees, when acting in the scope of their employment, cannot
conspire among themselves.” Grider v. City of Auburn, 618 F.3d 1240, 1261 (11th Cir.
2010) (internal quotes omitted). The doctrine “applies to public entities,” Denney v. City
of Albany, 247 F.3d 1172, 1190 (11th Cir. 2001), and to conspiracies under Section 1983.
E.g., Rehberg v. Paulk, 611 F.3d 828, 834, 854 (11th Cir. 2010). When the conspirators
are employees of a single government entity, the intra-corporate conspiracy doctrine
applies. Id. at 854 (“The ‘conspiracy’ occurred only within a government entity, and thus
the intracorporate conspiracy doctrine bars Count 10 as against Paulk.”); accord Denney,
247 F.3d at 1191 (doctrine applied when the only two conspirators were both city
The complaint identifies the conspirators as McGowan, Kolby and “other
unnamed Sheriff deputies at the Baldwin County Corrections Center.” (Doc. 1 at 13).
The complaint identifies Kolby as a deputy sheriff, (id. at 3), but it does not so identify
McGowan, who is described only as “Lieutenant McGowan.” (Id. at 4). It is thus not
clear that McGowan is an employee of the same entity as the other conspirators. This
uncertainty is enhanced by the defendants’ brief, which asserts that Kolby and defendant
Sheriff Huey Mack are entitled to absolute immunity under the Alabama Constitution but
which does not assert that Lieutenant McGowan or defendant Major Dale Bryne are
entitled to such immunity. (Doc. 15 at 19-20). Because the movants have not shown that
all the conspirators were employees of a single government entity, they are not entitled to
dismissal under the intra-corporate conspiracy doctrine.
The movants also argue that the complaint fails to allege that the conspirators
reached an agreement among themselves. (Doc. 15 at 18). The complaint alleges that the
defendants and others “conspired” to deprive the plaintiff of his constitutional rights,
(Doc. 1 at 13), and the movants have not attempted to show that the verb “conspire” does
not encompass the verb “agree.” According to Mr. Black, to conspire is “to join a
conspiracy,” and a conspiracy is “[a]n agreement … to commit an unlawful act,” along
with other elements. Black’s Law Dictionary 351, 352 (9th ed. 2009). The cases on
which the movants rely do not concern pleading requirements but rather address the
plaintiff’s failure to produce evidence of an agreement at trial or on motion for summary
The complaint alleges that the defendants’ conduct in failing to segregate the
plaintiff from the perpetrator, after he pleaded for it, and with knowledge that the
perpetrator was a convicted violent felon, breached a duty to segregate the plaintiff from
the perpetrator. (Doc. 1 at 17). The movants argue that the complaint, measured by the
Twombly-Iqbal standard, supports neither a duty on them nor a breach of any such duty
by them. (Doc. 15 at 5-7, 21-23). As set forth in Part III, the complaint does not allege
that the movants had the slightest involvement in anything that occurred or failed to occur
prior to the assault. There is thus nothing in the complaint to make it plausible that the
movants could have owed the plaintiff a duty or that they violated any such duty by “the
conscious doing of some act or the omission of some duty, while knowing of the existing
conditions and being conscious that, from doing or omitting to do an act, injury will
likely or probably result.” Hicks v. Dunn, 819 So. 2d 22, 24 (Ala. 2001). The plaintiff
does not attempt to rescue this claim.
VI. Civil Conspiracy.
The movants merely incorporate without amplification the arguments they assert
in opposition to the Section 1983 conspiracy claim. (Doc. 15 at 23). The result must
therefore be the same.
For the reasons set forth above, the movants’ motion to dismiss is granted with
respect to the plaintiff’s Eighth and Fourteenth Amendment claims and granted with
respect to the plaintiff’s wantonness claim. These claims are dismissed. The motion is
granted with respect to all claims against fictitious defendants. All claims as against
fictitious defendants are dismissed without prejudice. In all other respects, the motion
to dismiss is denied. This action will proceed against defendants Kolby and McGowan
on the plaintiff’s conspiracy claims under Section 1983 and state law.4
DONE and ORDERED this 27th day of September, 2011.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
Suit has been brought by “D.T., a minor, by and through his father and next friend,
M.T.” (Doc. 1 at 1). Because the age of majority in Alabama is 19 years, because the complaint
reflects that D.T. was 20 years old when suit was filed, and because Rule 17(a)(1) requires that
an action be prosecuted in the name of the real party in interest, the Court previously ordered the
plaintiff to address the real-party-in-interest issue. (Doc. 24). The plaintiff has not done so.
Accordingly, the plaintiff is ordered to show cause, on or before October 10, 2011, for his
failure to comply with the Court’s order.
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