Caffey v. Mobile Police Department et al
ORDER: The Court declines to accept the 7 Report and Recommendation that this action be dismissed. The Court concludes that the complaint should be served on the defendants and that the Magistrate Judge should oversee this process. The 15 Motion to Appoint Counsel is denied. Signed by Chief Judge William H. Steele on 11/5/2012. Copy mailed to Plaintiff. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
) CIVIL ACTION 12-0400-WS-M
MOBILE POLICE DEPARTMENT,
This matter is before the Court on the Magistrate Judge’s report and
recommendation (“R&R”) that the action be dismissed without prejudice under 28 U.S.C.
§ 1915(e)(2)(B). (Doc. 7). The plaintiff has filed a response to the R&R. (Doc. 15).
The amended complaint names as defendants the Mobile Police Department
(“MPD”) and Chris Wilkerson and alleges an episode of police brutality/excessive force
in connection with a well-publicized incident occurring on December 22, 2010. The
R&R recommends that the action as to MPD be dismissed as frivolous because “it is well
settled in this circuit that city police departments are not legal entities, and, therefore, are
not subject to suit or liability under § 1983.” (Doc. 7 at 6). The R&R recommends that
the action as to Wilkerson be dismissed for failure to state a claim because “no where in
the amended complaint does Plaintiff allege any facts from which the Court could
reasonably infer that Officer Wilkerson had any personal involvement in her arrest or the
alleged use of excessive force.” (Id. at 7).
“[P]olice departments are not usually considered legal entities subject to suit,
[citations omitted], but ‘capacity to sue or be sued shall be determined by the law of the
state in which the district court is held.’” Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir.
1992) (quoting Fed. R. Civ. P. 17(b)). Dean does not hold that an Alabama police
department is not a legal entity capable of being sued, and it could not have so held,
because Dean involved a sheriff’s department, not a police department. Moreover, Dean
states only what it understood as the general rule, while expressly noting that the suability
of an Alabama police department must be determined by Alabama law.
The R&R relies on Dean but, as noted, Dean does not foreclose the suability of
the Mobile Police Department. The R&R also relies on Nettles v. Pensacola Police
Department, 423 Fed. Appx. 853 (11th Cir. 2011), but that case merely observed that
“[t]he district court liberally construed the defendant as the City of Pensacola because the
Pensacola Police Department was not a legal entity capable of being sued.” Id. at 854
n.1. The Nettles Court did not involve an Alabama police department, did not make any
ruling as to suability, and cited only Dean. Id. Finally, the R&R relies on Freeman v.
Holifield, 2012 WL 2036360 (N.D. Ala. 2012), which stated that, “[i]n this Circuit, the
law is well established that sheriff’s departments and police departments are not legal
entities subject to suit under 42 U.S.C. § 1983.” Id. at *2. Freeman relied only on Dean
for this proposition and, as discussed above, Dean does not foreclose suit against an
Alabama police department.
The Court addressed this issue in Williams v. Marengo County Sheriff’s
Department, 2007 WL 521009 (S.D. Ala. 2007), in which it denied a motion to dismiss
because the police department defendants had not shown that Alabama law precludes
such a claim and because the Court’s own investigation of state law was inconclusive.
Id. at *1. Both Williams and Nettles indicate as well that a court may properly construe a
suit against a municipal police department as a suit against the municipality.
A claim is frivolous when it “lacks an arguable basis either in law or in fact.”
(Doc. 7 at 2 (internal quotes omitted)). Given the residual uncertainty as to whether
Alabama law permits a municipal police department to be sued and as to whether a suit
against such a police department may or should be construed as one against the
municipality, the Court concludes that the plaintiff’s claim against the entity defendant
has not been shown to be frivolous for purposes of Section 1915(e)(2)(B)(i).
The plaintiff’s original complaint named as defendants MPD, Wilkerson, “Chief
of Police ___ Levey (and others).” (Doc. 1 at 1). The Magistrate Judge ordered the
plaintiff to “complete and file this Court’s form for a complaint under 42 U.S.C. § 1983.”
(Doc. 2 at 1). The plaintiff therefore submitted a form “prisoner complaint [for inmate
action] under 42 U.S.C. § 1983.” (Doc. 3). Where the form asks the plaintiff to state the
full name of the first defendant, the plaintiff wrote, “Chris Wilkerson.” (Doc. 3 at 5).
Immediately below, where the form asks the plaintiff to state her “[c]laim against this
defendant,” the plaintiff wrote, “[p]olice brutality, excessive force, which cause broken
bone in face.” (Id.). Where the form asks the plaintiff to state the full name of the
second defendant, the plaintiff wrote, “Mobile Police Department.” (Id.). It is thus clear
that the amended complaint alleges that Chris Wilkerson used excessive force against her
during the incident described in the amended complaint and attached documentation.
The R&R emphasizes that, in her original complaint, the plaintiff alleged that she
“was stomped in the face by an (unknown) Mobile Police Office[r].” (Doc. 1 at 2). But
“under the Federal Rules of Civil Procedure, an amended complaint supersedes the initial
complaint and becomes the operative pleading in the case ….” Krinsk v. SunTrust Banks,
Inc., 654 F.3d 1194, 1202 (11th Cir. 2011) (internal quotes omitted). Once the plaintiff
filed her amended complaint, its adequacy was required to be tested by that document
and not by some previous iteration. Indeed, the plaintiff was instructed that “[t]he new
complaint will supersede the prior complaint. Thus, Plaintiff shall not rely upon her prior
complaint.” (Doc. 2 at 1).
At any rate, the original complaint, even if considered, does not prevent the
amended complaint from stating a claim on which relief can be granted. In listing the
defendants, the plaintiff identified them as “Chris Wilkerson [and] other assaliants [sic].”
(Doc. 1 at 2). The original complaint thus specifically identified Wilkerson as
participating in the excessive use of force.
To the uncertain extent the R&R suggests that recent Supreme Court decisions
require the plaintiff to plead subsidiary facts indicating that Wilkerson truly was, as she
alleges, involved in the conduct complained of, this Court has ruled that a plaintiff “need
not support those [pleaded] facts with secondary facts, tertiary facts ad infinitum in order
to satisfy Rule 8(a)(2).” Howard v. Bayrock Mortgage Corp., 2010 WL 4628120 at *3
(S.D. Ala. 2010). The allegation that Wilkerson is the (or an) officer that used excessive
force against her is factual and, under Howard, the plaintiff need not plead secondary
facts showing that Wilkerson was in fact an assailant.
As part of her response to the R&R, the plaintiff moves for appointment of
counsel. “A plaintiff in a civil suit has no constitutional right to counsel. A court may,
however, pursuant to 28 U.S.C. § 1915(e)(1), appoint counsel for an indigent plaintiff.
The district court has broad discretion in making this decision, [citation omitted], and
should appoint counsel only in exceptional circumstances.” Bass v. Perrin, 170 F.3d
1312, 1320 (11th Cir. 1999).
The primary exceptional circumstance arises when “the facts and legal issues are
so novel or complex as to require the assistance of a trained practitioner.” Poole v.
Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987). This case presents a straightforward
claim of excessive force allegedly administered in a single incident. There is nothing
factually or legally novel or complex presented by this claim. See, e.g., Dean, 951 F.2d
at 1212, 1216 (claim based on attack by another detainee, with the governmental
defendants’ liability based on inadequate security and lack of inmate classification, was
not so novel or complex as to require counsel).
The plaintiff asserts that she requires legal assistance in order to obtain documents
from MPD, presumably including officer reports and internal affairs reports. Her
complaint having survived initial review under Section 1915(e)(2)(B), the plaintiff will
be able to seek such records through the ordinary avenues of civil discovery, as pro se
litigants do routinely.
For the reasons set forth above, the Court declines to accept the R&R that this
action be dismissed. The Court concludes that the complaint should be served on the
defendants and that the Magistrate Judge should oversee this process.
The plaintiff’s motion for appointment of counsel is denied.
DONE and ORDERED this 5th day of November, 2012.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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