Key v. Mott et al

Filing 55

ORDER ADOPTING IN PART 45 REPORT AND RECOMMENDATIONS re 31 MOTION to Dismiss First Amended Complaint filed by Steve A. Reed, Jeffery Bolden, Jr., Verdell Trotter-Dees, Cecil Earl Driskill, Robert Taylor, Jr., Joe Cassidy, Jerry K . Taylor, Johnnie Robinson, Jerry C. Lundy and 29 MOTION to Dismiss First Amended Complaint filed by The Town of Mount Vernon, modifying the recommendations of the Magistrate Judge as set out in order. Signed by Judge Kristi K. DuBose on 4/29/2013. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JONIE KEY,
Plaintiff,
v.
JAMES MOTT, et al.,
Defendants.

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CIVIL ACTION NO. 12-00614-KD-M

ORDER
This action is before the Court on the Motion to Dismiss First Amended Complaint (Doc. 29) and
supporting brief (Doc. 30) filed by Defendant Town of Mount Vernon (“Mount Vernon”) and the Motion
to Dismiss First Amended Complaint (Doc. 31) and supporting brief (Doc. 32) filed by the Individual
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Defendants, Plaintiff’s Response (Doc. 34) in opposition, the said Defendants’ Replies (Docs. 37-38) to
said Response, Plaintiff’s “Sur Reply” (Doc. 44), the Magistrate Judge’s Report and Recommendation
(Doc. 45), and the objections filed to same (Doc. 48-52).

After due and proper consideration of all pleadings in this file, and a de novo
determination of those portions of the Report and Recommendation to which objection is made,
the Report and Recommendation of the Magistrate Judge (Doc. 45) made under 28 U.S.C. §
636(b)(1)(B) is hereby ADOPTED in part as the opinion of this Court. Specifically, the Court
ADOPTS as modified the following recommendations of the Magistrate Judge (modifications
underlined):
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The recommendation “that Plaintiff’s § 1983 claims against Defendants Lundy, Reed,
Cassidy, Jerry K. Taylor, Robinson, Driskell, Robert Taylor, Jr., Bolden, and
Trotter-Dees in their official capacities be dismissed . . . ” (Doc. 45 at 3 n.1).

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Recommendations that the two Motions to Dismiss (Docs. 29-32) be granted as to any

The phrase “Individual Defendants” as used in this Order refers to all individual Defendants other than
Defendant James Mott, who has not filed a Motion to Dismiss; no part of this Order shall be construed as
dismissing any claim against Mott.

claim raised with regard to violations of the First, Fourth, Fifth, and Fourteenth
Amendments.
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(Doc. 45 at 9-10, 12).

The recommendation “that the Motion to Dismiss (Docs. 31-32) by the Individual
Defendants[] be granted as to claims three, four, five, six,[] seven, and eight as raised
against these Defendants in their individual capacities in violation of the Eighth
Amendment except as to Defendants Steve A. Reed, Jerry K. Taylor, Joe Cassidy, and
Jerry C. Lundy.” (Doc. 45 at 16-17).

The Court does not adopt the statement that

Plaintiff “has not demonstrated any causal connection” between James Mott’s alleged
prior conduct and the alleged conduct underlying this case.

Rather, the Court finds that

Plaintiff has failed to allege conduct by individual council members in their individual
capacities that could plausibly be connected to the constitutional violation alleged.
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The recommendations “that the Motion to Dismiss count six of the Amended Complaint
be granted as it relates to Individual Defendant Lundy and all other Individual
Defendants” and “that Defendant Mount Vernon’s Motion to Dismiss (Docs. 29-30)
count six of Plaintiff’s Amended Complaint be granted.” (Doc. 45 at 25-26)

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The recommendation “that Defendant Mount Vernon’s Motion to Dismiss (Doc. 29-30)
and the Individual Defendants’ Motion to Dismiss be granted as to count seven of
Plaintiff’s Amended Complaint.” (Doc. 45 at 27).

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The recommendation “that Defendant Mount Vernon’s Motion to Dismiss (Docs. 29-30)
and the Individual Defendants’ Motion to Dismiss count eight of Plaintiff’s Amended
Complaint be granted.” (Doc. 45 at 28).

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The recommendation “that the two Motions to Dismiss Key’s claim of assault against all
of the Defendants, except Mott, be granted (Docs. 29-32).” (Doc. 45 at 30).
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The recommendation “that the two Motions to Dismiss (Docs. 29-32) be granted as to
Plaintiff’s claim under Ala. Code § 14-11-31.” (Doc. 45 at 34).

However, the Court’s

adoption of this recommendation is based on the determination that there is no persuasive
authority to support Plaintiff’s theory that Ala. Code § 14-11-31 creates a cause of action.
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The recommendation “that Defendant Mount Vernon’s Motion to Dismiss be granted as
to Plaintiff’s claim for punitive damages against Mount Vernon.” (Doc. 45 at 36).
The Court does NOT ADOPT any other recommendation not expressly mentioned

above.
The Individual Defendants have also argued entitlement to qualified immunity on all
claims brought against them in their individual capacities.

The Magistrate’s Report and

Recommendation found an analysis of qualified immunity to be unnecessary in light of the
Magistrate’s determination that Plaintiff had failed to successfully state any claim against the
Individual Defendants in their individual capacities.

(Doc. 45 at 35).

However, at this stage

of the proceedings, the Court finds that Plaintiff has stated a constitutional claim against
Defendants Steve A. Reed, Jerry K. Taylor, Joe Cassidy, and Jerry C. Lundy.

The issue of

whether these alleged constitutional violations, if proven, are firmly established will be
considered at the summary judgment stage, if presented.

As such, the Individual Defendants’

Motion to Dismiss (Doc. 31) is DENIED as to qualified immunity for Defendants Reed, Jerry
Taylor, Cassidy, and Lundy with regard to violations of the Eighth Amendment alleged in counts
three (3), four (4), and five (5) of Plaintiff’s First Amended Complaint.
Accordingly, it is ORDERED that Defendant Mount Vernon’s Motion to Dismiss (Docs.
29) is DENIED as to claims involving violations of the Eighth Amendment as alleged in counts
three (3), four (4), and five (5) of Plaintiff’s First Amended Complaint and GRANTED as to all
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other claims and Plaintiff’s demand for punitive damages, and that the Motion to Dismiss filed
by the Individual Defendants (Doc. 31) is DENIED as to claims against Defendants Steve A.
Reed, Jerry K. Taylor, Joe Cassidy, and Jerry C. Lundy in their individual capacities involving
violations of the Eighth Amendment as alleged in counts three (3), four (4), and five (5) of
Plaintiff’s First Amended Complaint and GRANTED as to all other claims.
DONE and ORDERED this the 26th day of April 2013.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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