Patterson et al v. Walden et al

Filing 29

Order granting in part denying in part 9 MOTION to Dismiss filed by Scott Walden, granting 11 MOTION to Dismiss filed by Jason Dean, granting 13 MOTION to Dismiss filed by City of Atmore. Answer due from Scott Walden on 7/2/2013. Signed by Chief Judge William H. Steele on 6/18/2013. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BETTY PATTERSON, et al.,
Plaintiffs,
v.
SCOTT WALDEN, et al.,
Defendants.

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CIVIL ACTION 13-0109-WS-B

ORDER
This matter comes before the Court on Motions to Dismiss (docs. 9, 11 & 13) filed by
defendants, Scott Walden, Jason Dean, and City of Atmore. All three Motions have been briefed
and are ripe for disposition.
I.

Background.
Plaintiffs, Betty Patterson and Dewayne Russell, as Administrators of the Estate of Adam

Dewayne Patterson (“Patterson”), filed suit in federal court against four named defendants,
including the City of Atmore (the “City”); Scott Walden (“Officer Walden”), who at all relevant
times was an Atmore police officer; Jason Dean (“Chief Dean”), who at all relevant times was
Atmore’s Chief of Police; and Willie Lee Patrick.1 The Complaint specifies that Chief Dean “is
sued in his individual capacity” (doc. 1, ¶ 4), but is silent as to the capacity or capacities in which
Officer Walden is sued.
According to the well-pleaded facts in the Complaint (which are accepted as true for
purposes of the Motions to Dismiss), on or about March 6, 2011, Officer Walden observed
defendant Patrick operating a motor vehicle at a speed in excess of the posted limit. (Doc. 1, ¶
7.) Officer Walden initiated a pursuit, and “began to chase [Patrick’s vehicle] at a high rate of
1

By all appearances, defendant Patrick has not been served with process. (See doc.
18.) The 120-day service deadline provided by Rule 4(m), Fed.R.Civ.P., will expire on July 3,
2013; therefore, plaintiffs are expected to proceed diligently to locate and serve Patrick,
assuming they have not done so already, and to file return of service promptly thereafter.

speed … for several blocks.” (Id.) The Complaint alleges that Officer Walden was “following
closely behind Defendant Patrick’s automobile at a high rate of speed.” (Id.) As Patrick’s
vehicle approached a railroad crossing atop an elevated slope, Officer Walden’s patrol vehicle
struck Patrick’s car from behind, sending it airborne and causing Patrick’s vehicle to “flip[] over
and land[] in a ditch.” (Id.) Plaintiffs’ decedent, Patterson, “was killed as a result of the
accident.” (Id.)2
On the strength of these limited facts, plaintiffs assert the following causes of action: (i)
a claim against Officer Walden pursuant to 42 U.S.C. § 1983, alleging that this defendant’s “use
of excessive force … was unreasonable and was a violation of Patterson’s Fourth, Fifth and
Fourteenth Amendment rights” (doc. 1, ¶ 10); (ii) a wrongful death claim against Officer Walden
under Alabama law, alleging that this defendant’s “negligence or wantonness” proximately
caused Patterson’s death (id., ¶ 12); (iii) a state-law false arrest claim against Officer Walden;
(iv) a claim against Officer Walden for the Alabama tort of outrage; (v) a § 1983 claim against
Chief Dean, alleging that his “deliberate indifference to the hiring, lack of training and
supervision of [Officer] Walden … caused … Patterson to be deprived of his Fourth Amendment
right not to have excessive force used against him, and his Fifth and Fourteenth Amendment
right to due process, the equal protection of the law, and not to be subjected to the outrageous
conduct of a police officer” (id., ¶ 18); and (vi) a § 1983 claim against the City, alleging that
Chief Dean’s acts and omissions “represent[] the official policy practice or custom of the City,”
giving rise to municipal liability (id., ¶ 20).3 Plaintiffs demand judgment of $25 million as to
each of these asserted causes of action, plus interest, costs and attorney’s fees.
The municipal and law enforcement defendants have now moved to dismiss most of the
claims and causes of action asserted by plaintiffs, on the grounds that they fail to state a claim on
which relief can be granted.

2

The Complaint contains no facts alleging where Patterson was or how he came to
be killed in the accident. In response to the Rule 12(b)(6) Motions, however, plaintiffs clarify
that Patterson was a passenger in Patrick’s vehicle. (Doc. 26, at 2.)
3

An unnumbered seventh count of the Complaint is a wrongful death claim against
defendant Willie Lee Patrick. That Count VII is beyond the scope of this Order, inasmuch as
Patrick has not filed a Rule 12(b)(6) Motion and, indeed, has not been served with process.

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II.

Analysis.
A.

Legal Standard for Rule 12(b)(6) Motions.

To withstand Rule 12(b)(6) scrutiny, a plaintiff must plead “enough facts to state a claim
to relief that is plausible on its face,” so as to “nudge[] [his] claims across the line from
conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007). “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, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009) (citation omitted). “This necessarily requires that a plaintiff include factual allegations
for each essential element of his or her claim.” GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d
1244, 1254 (11th Cir. 2012). Thus, minimum pleading standards “require[] more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. As the Eleventh Circuit has explained, these principles require that a
complaint’s allegations be “enough to raise a right to relief above the speculative level.” Speaker
v. U.S. Dep’t of Health and Human Services Centers for Disease Control and Prevention, 623
F.3d 1371, 1380 (11th Cir. 2010) (citations omitted).
Of course, in reviewing Rule 12(b)(6) motions, federal courts must “accept[] the facts
alleged in the complaint as true, [and] draw[] all reasonable inferences in the plaintiff’s favor.”
Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010); see also American United Life Ins.
Co. v. Martinez, 480 F.3d 1043, 1066 (11th Cir. 2007) (“a court must view a complaint in the
light most favorable to the plaintiff and accept all of the plaintiff’s well-pleaded facts as true
when it considers a motion to dismiss a complaint under Rule 12(b)(6)”). That said, the
obligation to accept well-pleaded facts as true does not extend to conclusory allegations or mere
legal conclusions. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (“if
allegations are indeed more conclusory than factual, then the court does not have to assume their
truth”); Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (“Legal conclusions without
adequate factual support are entitled to no assumption of truth.”).
B.

Defendant Officer Walden’s Motion to Dismiss.

As noted, plaintiffs’ claims against Officer Walden consist of the following: (i) a § 1983
claim, alleging “excessive force in striking Defendant Patrick’s vehicle,” in violation of
“Patterson’s Fourth, Fifth and Fourteenth Amendment rights” (doc. 1, ¶ 10) (Count I); (ii) a

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state-law wrongful death claim (Count II); (iii) a state-law false arrest claim (Count III); and (iv)
a state-law outrage claim (Count IV). Although the Complaint does not delineate the capacity in
which Officer Walden is being sued, plaintiffs’ opposition brief states, “In this action, Plaintiffs
are suing Defendant Walden in both his official and individual capacity.” (Doc. 26, at 2.)
Officer Walden has moved for dismissal of the official-capacity claims, as well as portions of
Count I and the entirety of Counts III and IV.
With regard to the official-capacity claims, Officer Walden’s only argument is that they
“are actually claims against Atmore itself, which means that they are due to be dismissed as to
Officer Walden.” (Doc. 10, at 2.) It is well settled that “[a] claim asserted against an individual
in his or her official capacity is, in reality, a suit against the entity that employs the individual.”
Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1309 (11th Cir. 2009); see also Penley v. Eslinger, 605
F.3d 843, 855 (11th Cir. 2010) (“Official-capacity suits … generally represent only another way
of pleading an action against an entity of which an officer is an agent.”) (citation omitted). From
that principle, however, it does not follow that official-capacity suits against an individual fail to
state a claim and must be dismissed. To the contrary, official-capacity claims nominally raised
against individual government officials are routinely litigated to conclusion on the merits as the
functional equivalent of a direct suit against the municipality itself.4 Nothing in the cases cited
by Officer Walden supports his apparent contention that official-capacity suits against individual
government officials are per se barred for failure to state a claim.5 Defendant’s Motion to
Dismiss the official-capacity claims against Officer Walden on this basis is not well taken.
4

Defendants’ confusion on this point is underscored by their recognition that “an
official-capacity suit is, in all respects other than name, to be treated as a single suit against the
entity itself.” (Doc. 28, at 2 (emphasis added).) This is a correct statement of law. It also shows
that it is permissible for a plaintiff to proceed nominally against an individual defendant in his
official capacity, even though the suit is treated (despite its name) as a suit against the entity.
This is exactly what plaintiffs are doing here, and is an acceptable way of structuring claims.
5

To be sure, movant cites a pair of district-court opinions for the notion that
official-capacity claims against individual government officials cannot be maintained. (See doc.
10, at 3.) Review of those cases reveals that movant’s reliance is misplaced. In McReynolds ex
rel. D.M. v. Alabama Dep’t of Youth Services, 426 F. Supp.2d 1247 (M.D. Ala. 2006), the court
did dismiss official-capacity claims against the individual defendants, but only because claims
against the entity itself were barred by Eleventh Amendment immunity, such that the officialcapacity claims against individual defendants failed for the same reason. Id. at 1253. Contrary
to movant’s suggestion, the McReynolds court did not hold that official-capacity claims against
(Continued)
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Next, the Court turns to Counts III and IV (state-law torts of false arrest and outrage),
which Officer Walden has moved to dismiss on abatement grounds. Under Alabama law, unfiled
state-law tort claims do not survive the death of the claimant. See, e.g., Nationwide Mut. Ins. Co.
v. Wood, --- So.3d ----, 2013 WL 646468, *2 (Ala. Feb. 22, 2013) (“Under the Alabama survival
statute, § 6-5-462, Ala. Code 1975, an unfiled claim sounding in tort will not survive the death of
the person with the claim.”) (citations omitted).6 In other words, when Patterson died on March
6, 2011 (almost two years to the day before this lawsuit commenced), his then-unfiled tort claims
for false arrest and outrage were extinguished, as a matter of law. As Officer Walden correctly
argues (with no response or disagreement from plaintiffs), black-letter Alabama law precludes
the estate’s administrators from initiating legal proceedings on such abated tort claims after
Patterson’s death. The Motion to Dismiss is therefore granted as to Counts III and IV, which
fail to state claims upon which relief can be granted.
The remaining issue raised by Officer Walden’s Rule 12(b)(6) Motion is whether Count I
(Section 1983 claim under the Fourth, Fifth and Fourteenth Amendments) states a cognizable
cause of action. Officer Walden seeks dismissal of the Fifth and Fourteenth Amendment aspects
of Count I.7 With respect to the Fifth Amendment, defendant argues (again, with no opposition

individual defendants always, necessarily are not cognizable. The same is true of Besselaar v.
Siegelman, 2001 WL 936196, *8-9 (S.D. Ala. May 2, 2001). Unlike in McReynolds and
Besselaar, Officer Walden has not argued that plaintiffs’ claims against the City of Atmore are
subject to an immunity that likewise forbids the assertion of official-capacity claims against him;
instead, his position is apparently that official-capacity claims always fail as a matter of course.
Such a contention is at odds with the law.
6

See also Continental Nat. Indem. Co. v. Fields, 926 So.2d 1033, 1037 (Ala. 2005)
(under Alabama law, “[a]s a general rule, causes of action in tort do not survive in favor of the
personal representative of the deceased”); Bassie v. Obstetrics & Gynecology Associates of
Northwest Alabama, P.C., 828 So.2d 280, 282 (Ala. 2002) (“In Alabama, a deceased’s unfiled
tort claims do not survive the death of the putative plaintiff.”); Illinois Cent. Gulf R. Co. v. Price,
539 So.2d 202, 203-04 (Ala. 1988) (“Under Alabama law, a cause of action sounding in tort, as
opposed to an action, for personal injuries does not survive in favor of a personal
representative.”).
7

Defendant does not contend that the Complaint fails to state a § 1983 claim of
excessive force under the Fourth Amendment. To the contrary, Officer Walden concedes that
“because the plaintiffs’ claim in this case is premised on the use of excessive force, it is properly
analyzed under only the Fourth … Amendment.” (Doc. 10, at 8 n.3.) At least at the pleadings
(Continued)
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or response from plaintiffs) that it has no application here because the due process component of
the Fifth Amendment applies only to the federal government, whereas Officer Walden was a
municipal employee. Settled law supports this argument. See, e.g., Buxton v. City of Plant City,
Fla., 871 F.2d 1037, 1041 (11th Cir. 1989) (“The fifth amendment to the United States
Constitution restrains the federal government, and the fourteenth amendment, section 1, restrains
the states, from depriving any person of life, liberty, or property without due process of law.”);
Knoetze v. United States, Dep’t of State, 634 F.2d 207, 211 (5th Cir. 1981) (“fifth amendment
protection attaches only when the federal government seeks to deny a liberty or property
interest”); Jordan v. Mosley, 2008 WL 3974318, *2 n.5 (11th Cir. Aug. 28, 2008) (“the Fifth
Amendment applies only to Federal, not state, acts”). Insofar, then, as Count I is predicated on
Fifth Amendment due-process principles, it fails to state a cognizable claim and is properly
dismissed.
Officer Walden also seeks dismissal of Count I to the extent that it alleges a Fourteenth
Amendment violation. Although the Complaint does not specify the nature of the alleged
deprivation, plaintiffs’ brief clarifies that they are proceeding under the substantive due process
component of the Fourteenth Amendment. (Doc. 26, at 2.) As the Supreme Court has explained,
“the substantive component of the Due Process Clause is violated by executive action only when
it can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.”
County of Sacramento v. Lewis, 523 U.S. 833, 847, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)
(citation and internal quotation marks omitted); see also White v. Polk County, 2006 WL
3419583, *1 (11th Cir. Nov. 28, 2006) (similar). In Lewis, the Supreme Court held that “highspeed chases with no intent to harm suspects physically or to worsen their legal plight do not
give rise to liability under the Fourteenth Amendment, redressible by an action under § 1983.”
Lewis, 523 U.S. at 854.

stage, this concession is prudent. See generally Beshers v. Harrison, 495 F.3d 1260, 1265-68
(11th Cir. 2007) (discussing applicable legal standards for assessing whether a seizure has
occurred and whether any such seizure was unreasonable, all in the context of a high-speed
pursuit). Therefore, this case will proceed as to Count I insofar as it is rooted in a theory of
excessive force in violation of the Fourth Amendment.

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Succinctly put, the question posed by Officer Walden’s Rule 12(b)(6) Motion is whether
the Complaint sets forth sufficient factual allegations to state a plausible Fourteenth Amendment
claim. The Court answers this question in the affirmative. The well-pleaded facts show that
Officer Walden initiated a high-speed pursuit of the vehicle in which Patterson was riding, on
nothing more substantial than a minor traffic infraction; that Officer Walden followed the vehicle
very closely at high speed for several blocks; and that Officer Walden rear-ended the vehicle as it
reached a railroad crossing at the top of an elevated slope, with sufficient force and severity that
he caused the vehicle to go airborne, flip over, and crash into a ditch. From these facts, a
plausible claim is made that Officer Walden acted with more than mere negligence or
recklessness, but instead had a purpose or intent to harm the suspects physically by ramming
their vehicle at a particularly vulnerable location on the roadway. This claim can (and no doubt
will) be revisited at summary judgment, but for now the Complaint pleads sufficient allegations
of conscience-shocking behavior by Officer Walden to state a plausible Fourteenth Amendment
substantive due process claim, and therefore satisfies the Twombly threshold. Officer Walden’s
Motion to Dismiss is denied insofar as it seeks dismissal of the Fourteenth Amendment
substantive due process portion of Count I.
C.

Defendant Chief Dean’s Motion to Dismiss.

Recall that Count V of the Complaint alleges a § 1983 claim against Chief Dean, solely
in his individual capacity. To support this claim, the Complaint alleges that Chief Dean “was
responsible for the hiring, training, supervision, direction and conduct of the police officers and
administrative staff” of the City of Atmore Police Department at all material times. (Doc. 1, ¶
4.) Count V also alleges in conclusory fashion that Chief Dean’s “deliberate indifference to the
hiring, lack of training and supervision of [Officer Walden] directly and proximately caused
[Patterson] to be deprived” of rights guaranteed under the Fourth, Fifth and Fourteenth
Amendments. (Id., ¶ 8.) In his Rule 12(b)(6) Motion, Chief Dean correctly asserts that these
allegations are inadequate to satisfy Twombly / Iqbal pleading standards.
“[S]upervisory officials are not liable under § 1983 for the unconstitutional acts of their
subordinates on the basis of respondeat superior or vicarious liability.” West v. Tillman, 496
F.3d 1321, 1328 (11th Cir. 2007) (quotation omitted). Nor can a supervisor be held liable under §
1983 for mere negligence in the training or supervision of his subordinates. See, e.g., Greason v.
Kemp, 891 F.2d 829, 836-37 (11th Cir. 1990). Indeed, the law is clear that a supervisor may not

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be held liable under § 1983 unless “the supervisor personally participates in the alleged
constitutional violation or … there is a causal connection between actions of the supervising
official and the alleged constitutional violation.” Myers v. Bowman, 713 F.3d 1319, 1328 (11th
Cir. 2013) (citation omitted). A causal connection may be established in circumstances where (i)
“a history of widespread abuse puts the responsible supervisor on notice of the need to correct
the alleged deprivation;” (ii) the supervisor’s “improper custom or policy … resulted in
deliberate indifference to constitutional rights;” or (iii) “the supervisor directed the subordinates
to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them
from doing so.” Gonzalez v. Reno, 325 F.3d 1228, 1234-35 (11th Cir. 2003) (citations and
internal quotation marks omitted).
In other words, “[t]o state a claim against a supervisory defendant, the plaintiff must
allege (1) the supervisor’s personal involvement in the violation of his constitutional rights, (2)
the existence of a custom or policy that resulted in deliberate indifference to the plaintiff’s
constitutional rights, (3) facts supporting an inference that the supervisor directed the unlawful
action or knowingly failed to prevent it, or (4) a history of widespread abuse that put the
supervisor on notice of an alleged deprivation that he then failed to correct.” Barr v. Gee, 2011
WL 3585815, *8 (11th Cir. Aug. 16, 2011) (finding that complaint failed to state a claim against
supervisor where it did not allege facts supporting plausible inference of personal involvement in
misconduct, or history of widespread abuse that had put supervisor on notice of deprivation, and
“failed to identify the purported policies or customs by which [supervisor] allegedly infringed on
his rights”).8 “The standard by which a supervisor is held liable in her individual capacity for the
actions of a subordinate is extremely rigorous.” Mann, 588 F.3d at 1308 (citation omitted).
8

See also Smith v. Owens, 2013 WL 2357628, *3 (S.D. Ga. May 29, 2013)
(dismissing § 1983 claims against supervisors where complaint “makes nothing more than a
general allegation that Defendants violated his constitutional rights and that there existed an
official policy which motivated the actions about which he complains”); Hill v. Lee County
Sheriff’s Office, 2012 WL 4356818, *8 (M.D. Fla. Sept. 24, 2012) (granting law enforcement
supervisors’ Rule 12(b)(6) motion where complaint did not plead facts that supervisors were
personally involved in subject arrest, did not contain allegations inferring the existence of a
custom or policy, lacked facts supporting inference that supervisors directed actions or failed to
prevent them, and made no allegations of history of widespread abuse); Johnson v. Alabama
Community College System, 2011 WL 4479007, *2 (M.D. Ala. Sept. 27, 2011) (applying same
factors to claim of supervisory liability under § 1983).

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As Chief Dean correctly observes, the Complaint’s allegations against him rest on
generic labels and legal conclusions, not specific facts. Although Count V is couched in terms of
“deliberate indifference to the hiring, lack of training and supervision” of Officer Walden, the
Complaint is devoid of facts that might plausibly support such an allegation. There are no facts
pleaded that, for example, identify a custom or policy that resulted in deliberate indifference to
Patterson’s constitutional rights.9 The Complaint likewise lacks factual allegations that Chief
Dean directed Officer Walden to pursue and ram Patterson’s vehicle, or that he knowingly failed
to prevent Officer Walden from doing so. And the Complaint does not include a single fact
suggesting the existence of a widespread pattern of excessive force or substantive due process
violations by Atmore police officers to which Chief Dean turned a blind eye.
Ultimately, the Complaint’s conclusory, formulaic use of terms like “deliberate
indifference” and “lack of training and supervision” falls well short of establishing the requisite
plausibility for Twombly / Iqbal purposes. Plaintiffs have not pleaded specific facts sufficient to
raise their right to relief against Chief Dean above the speculative level. Accordingly, Chief
Dean’s Rule 12(b)(6) Motion is due to be granted.10
9

Even if the Complaint did identify such a custom or policy by Chief Dean, such
custom or policy would only amount to deliberate indifference if Chief Dean made a “deliberate”
or “conscious” choice not to train officers. See, e.g., Rocker v. City of Ocala, Fla., 2009 WL
4365226, *2 (11th Cir. Dec. 3, 2009). “As the Supreme Court has stated, deliberate indifference
is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or
obvious consequence of his action.” Goebert v. Lee County, 510 F.3d 1312, 1332 (11th Cir.
2007) (citation and internal quotation marks omitted). No facts are alleged that might plausibly
support a claim that Chief Dean was deliberately indifferent in this regard.
10

In their opposition brief, plaintiffs insist that Count V properly pleads a § 1983
claim for supervisory liability because (i) the facts concerning Officer Walden’s conduct
“inferentially show[] he lacked training and supervision,” and (ii) “Defendant Dean’s own
personal action in failing to train and supervise Defendant Walden” caused the constitutional
deprivation. (Doc. 24, at 2.) But such allegations fall well short of the requisite legal threshold
for § 1983 liability. As the aforementioned cases illustrate, far more is needed to hold a
supervisor liable in a § 1983 action than bare allegations that the supervisor who was vested with
authority to train and supervise failed to train or supervise the actor who engaged in
constitutional misconduct. Yet that is all we have here. Plaintiffs have pleaded no more facts
than that Chief Dean was responsible for training and supervising Officer Walden, and that more
training and supervision of Officer Walden could have prevented Patterson’s death. This does
not satisfy minimum pleading requirements for § 1983 claims of supervisory liability.

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D.

Defendant City of Atmore’s Motion to Dismiss.

In Count VI of the Complaint, plaintiffs purport to allege a § 1983 claim against the City
of Atmore. The only factual allegations pertaining to the claim against the City are that Chief
Dean’s actions “may fairly be said to represent official policy for [the City] in matters of
criminal investigation and law enforcement, and his edicts or acts … of allowing city officials
and police officers to violate the constitutional rights of citizens, and further, not being
disciplined for said conduct, represents the official policy, practice or custom of the City.” (Doc.
1, ¶ 1.) As the City notes in its Motion to Dismiss, the obvious Twombly problem with this claim
is that the Complaint contains no specific factual allegations that Chief Dean or anyone else ever
“allowed” police officers to violate citizens’ constitutional rights, or that they failed to take
appropriate disciplinary action. This kind of conclusory allegation does not satisfy minimum
pleading standards.
Moreover, insofar as Count VI appears to be rooted in a failure to train theory, the
Complaint’s allegations do not state a plausible claim for § 1983 municipal liability on that basis.
The Eleventh Circuit has explained that “inadequacy of police training may serve as the basis for
§ 1983 liability only where the failure to train amounts to deliberate indifference to the rights of
persons with whom the police come into contact. … To establish a municipality’s ‘deliberate
indifference,’ a plaintiff must put forward some evidence that the municipality was aware of the
need to train or supervise its employees in a particular area.” American Federation of Labor and
Congress of Indus. Organizations v. City of Miami, FL, 637 F.3d 1178, 1188-89 (11th Cir. 2011)
(citations omitted); see also Skop v. City of Atlanta, GA, 485 F.3d 1130, 1145 (11th Cir. 2007)
(“In order to sustain her claim that her injury was the result of improper training, Skop was
required to bring forth some evidence of a pattern of improper training …, and she must show
that Atlanta was aware of the deficiencies in the program.”) (citations and internal marks
omitted). Stated differently, “[m]unicipal policy or custom may include a failure to provide
adequate training if the deficiency evidences a deliberate indifference to the rights of its
inhabitants.” Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288, 1293 (11th Cir. 2009)
(quotation omitted). In order to establish deliberate indifference, the “plaintiff must present
some evidence 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.” Id. (quotation omitted).

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Therein lies the problem. The Complaint is entirely lacking in facts supporting an
inference that the City of Atmore was aware of a need to train and/or supervise its police officers
in the areas of high-speed pursuits or excessive force, much less that the City made a deliberate
choice not to do so. Instead, plaintiffs’ § 1983 claims against the City rest on nothing more
substantial than their conclusory contentions that Chief Dean makes official policy for the City
and he engaged in edicts and acts that allowed police officers to violate citizens’ constitutional
rights without adverse repercussions. That is not good enough. See Barr, 2011 WL 3585815, at
*7 (dismissing § 1983 failure-to-train claim against municipality where complaint “did not allege
facts supporting a plausible inference either that the County was on notice beforehand of a need
to train in this area, or that the County made a deliberate choice not to do so”).11
For these reasons, the City’s Motion to Dismiss Count VI of the Complaint is well taken,
and is due to be granted.12
11

See also Flowers v. Patrick, 869 F. Supp.2d 1331, 1336 (M.D. Ala. 2012) (“[F]or
a municipality to face liability, the constitutional violation a plaintiff complains of must be a
‘plainly obvious’ consequence of hiring the officer. … And on top of that, Twombly requires
more than legal conclusions; the plaintiff must allege facts sufficient to give rise to liability.”)
(citations omitted); Harvey v. City of Stuart, 2008 WL 4605926, *1 (11th Cir. Oct. 17, 2008)
(“Harvey failed to identify any policy or custom that caused a constitutional violation, and his
vague and conclusory allegations were insufficient to support the complaint.”); Cooper v. City of
Starke, Fla., 2011 WL 1100142, *8 (M.D. Fla. Mar. 23, 2011) (“Plaintiffs’ boilerplate and
conclusory allegations of municipal policy or practice – devoid of factual development – are
insufficient to state a § 1983 claim. Plaintiffs fail to identify any actual policies or decision
makers and, in describing only the single incident of force involving Plaintiffs, fail to offer any
facts to support the existence of a widespread custom,” as required under Twombly / Iqbal).
12

As the City correctly points out, this same reasoning requires the dismissal of
plaintiff’s official-capacity claims against Officer Walden in Count I. Recall that “[a] claim
asserted against an individual in his or her official capacity is, in reality, a suit against the entity
that employs the individual.” Mann, 588 F.3d at 1309. Thus, plaintiffs’ claims against Officer
Walden in his official capacity are the functional equivalent of claims against the City of
Atmore. Again, however, the City cannot be held liable under § 1983 for the alleged
transgressions of Officer Walden (its employee) on a theory of respondeat superior or vicarious
liability. “Instead, to impose § 1983 liability on a municipality, a plaintiff must show: (1) that
his 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). For the same
reasons discussed with respect to Count VI, the Complaint does not contain sufficient factual
allegations to state a plausible claim that the City had a custom or policy that constituted
deliberate indifference to Patterson’s constitutional rights. Therefore, the official-capacity claim
(Continued)
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III.

Conclusion.
For all of the foregoing reasons, it is ordered as follows:
1.

Defendant Officer Walden’s Motion to Dismiss (doc. 9) is granted in part, and
denied in part. The portion of Count I predicated on a Fifth Amendment
violation, and Counts III and IV in their entirety, are dismissed with prejudice;

2.

Defendant Chief Dean’s Motion to Dismiss (doc. 11) is granted. Count V is
dismissed without prejudice;

3.

Defendant City of Atmore’s Motion to Dismiss (doc. 13) is granted. Count VI
and the official-capacity claim nominally asserted against Officer Walden in
Count I are dismissed without prejudice. The official-capacity claim nominally
asserted against Officer Walden in Count II is dismissed with prejudice;

4.

In light of the foregoing rulings, the only remaining claims are the portion of
Count I alleging § 1983 liability against Officer Walden in his individual capacity
for violation of the Fourth Amendment and the substantive due process
component of the Fourteenth Amendment; the wrongful death claim in Count II
asserted against Officer Walden in his individual capacity; and Count VII, the
wrongful death claim against defendant Willie Lee Patrick;

5.

Officer Walden is ordered to file an Answer on or before July 2, 2013.

DONE and ORDERED this 18th day of June, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

against Officer Walden in Count I is properly dismissed. As for the official-capacity claim
against Officer Walden in Count II (state-law claim for wrongful death), the City persuasively
argues (with no rebuttal or response from plaintiffs) that this claim is precluded by plaintiffs’
noncompliance with the statutory requirement that “[c]laims for damages growing out of torts
shall be presented [to the municipal clerk] within six months from the accrual thereof or shall be
barred.” Ala. Code § 11-47-23. Inasmuch as it is undisputed that plaintiffs here did not satisfy
their presentment obligations under § 11-47-23, the official-capacity claim against Officer
Walden in Count II (which, again, is the functional equivalent of a direct claim against the City)
is statutorily barred, and is therefore properly dismissed on the City’s Rule 12(b)(6) Motion.

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