Rachel v. City of Mobile, Alabama et al

Filing 73

ORDER granting 44 Motion to Dismiss; granting 46 Motion to Dismiss. Count Two is dismissed, and Counts One, Three and Four are limited as set out. Signed by Chief Judge William H. Steele on 9/18/2014. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
AMY RACHEL, etc.,

)
)
Plaintiff,
)
)
v.
) CIVIL ACTION 13-0522-WS-M
)
CITY OF MOBILE, ALABAMA, et al., )
)
Defendants.
)
ORDER
This matter is before the Court on motions to dismiss filed by defendants
City of Mobile, Alabama (“the City”) and Michael T. Williams. (Docs. 44, 46).
The parties have filed briefs in support of their respective positions, (Docs. 44, 46,
61, 64, 65), and the motions are ripe for resolution.
BACKGROUND
According to the amended complaint, (Doc. 41), the plaintiff’s decedent
died after being repeatedly tased by members of the City’s police force. The
defendants are the City, Police Chief Williams, and the four responding officers.
Count One, Two and Three are brought against the City, Chief Williams
(individual and official capacities), and the responding officers (individual and
official capacities), respectively, pursuant to Section 1983, asserting the use of
constitutionally excessive force and the deprivation of life without due process.
Count Four is brought against all defendants under state law for wrongful death.

DISCUSSION
I. The City.
The City seeks dismissal of: (1) any claim for punitive damages under
Count One; (2) any claim for punitive damages under Count Two or Count Three,
to the extent asserted against the individual defendants in their official capacities;
(3) Count One to the extent based on respondeat superior or vicarious liability; (4)
any claim for any recovery from the City under Count Four other than punitive
damages; and (5) any claim against the City under Count Four based on the
intentional conduct of its employees or on any conduct other than neglect,
carelessness or unskillfulness. (Doc. 44 at 8).
The plaintiff expressly “concedes” the first four items, as well as the
“intentional conduct” portion of the fifth. (Doc. 61 at 1-2). The City’s motion to
dismiss is thus due to be granted in all these respects.
The City’s liability under Count Four is limited by statute to “neglect,
carelessness or unskillfulness.” Ala. Code § 11-47-190. The plaintiff offers no
argument to the contrary. Accordingly, the City’s motion to dismiss is due to be
granted in this respect as well.1
II. Chief Williams.
Chief Williams seeks dismissal of: (1) Count Two to the extent brought
against him in his official capacity; (2) Count Two to the extent brought against
him in his individual capacity; and (3) any claim for any recovery from him under
Count Four other than punitive damages. (Doc. 46 at 6-7).
The plaintiff expressly “concedes” the third item. (Doc. 61 at 2-3). As to
the first item, the plaintiff concedes, but only with respect to punitive damages.
(Id. at 2). As to the second item, the plaintiff concedes, but only to the extent
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The meaning of the phrase, “neglect, carelessness or unskillfulness,” has been
fleshed out in the case law. Granting the City’s motion to dismiss in this respect does not
restrict the plaintiff’s ability to establish the City’s liability beyond what that case law
reflects.
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Count Two is based on respondeat superior. (Id. at 2-3). Chief Williams’ motion
to dismiss is thus due to be granted in all these respects.
As this Court has recognized, an official-capacity suit against a local
government official, when the governmental entity is also sued, is redundant,
unnecessary and subject to dismissal on that basis. M.R. v. Board of School
Commissioners, 2012 WL 2931263 at *2 (S.D. Ala. 2012).2 The plaintiff offers
no argument to the contrary. Accordingly, the first item of Chief Williams’
motion to dismiss is due to be granted in in its entirety.
Chief Williams offers two reasons that Count Two should be dismissed:
(1) the amended complaint fails adequately to allege a causal connection between
his action or inaction and the alleged constitutional violations; and (2) he is
entitled to qualified immunity. (Doc. 46 at 3-6). The plaintiff addresses neither of
these arguments, and Chief Williams concludes that this silence works an
“abandon[ment]” of Count Two. (Doc. 64 at 2). It does not. Gailes v. Marengo
County Sheriff’s Department, 916 F. Supp. 2d 1238, 1241-43 (S.D. Ala. 2013). A
defendant retains the initial burden to demonstrate that it is entitled to dismissal
and, if the Court determines that the defendant’s position is clearly incorrect or
inadequate, it will deny the motion to dismiss. “If, however, the defendant’s
presentation is adequate to satisfy its initial burden, the Court will not deny the
motion based on arguments the plaintiff could have made but by silence elected
not to raise.” Id. at 1243-44. The Court concludes that Chief Williams has met
his initial burden and that he is entitled to dismissal of Count Two.
A. Pleading of Causation.
“Supervisory liability lies where the defendant personally participates in the
unconstitutional conduct or there is a causal connection between such conduct and
2

The result would be different were the City protected by the Eleventh
Amendment and were the plaintiff seeking equitable relief, but these circumstances are
not presented here. (Doc. 41 at 12-13).

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the defendant’s actions.” Harper v. Lawrence County, 592 F.3d 1227, 1236 (11th
Cir. 2010). The causal connection can be established in any of three ways (for a
total of four potential bases of liability). The first requires both a “history of
widespread abuse” placing the supervisor “on notice of the need to correct the
alleged deprivation” and the supervisor’s failure to do so. The second is
established “when a supervisor’s custom or policy … result[s] in deliberate
indifference to constitutional rights.” The third requires that the supervisor
“directed the subordinates to act unlawfully” or “knew” they would do so “and
failed to stop them from doing so.” Id. (internal quotes omitted).
The complaint does not accuse Chief Williams of personally participating
in the treatment of the plaintiff’s decedent, nor does it allege that he directed his
subordinates to tase the decedent or deny him medical treatment or that he knew
they would do so. (Doc. 41 at 9-12). The complaint does fault Chief Williams for
failing to train his officers adequately regarding use of force and responding to
medical emergencies. (Id. at 11-12). However, a failure to train or supervise can
support supervisory liability only if there is a history of widespread abuse putting
the supervisor on notice of the need to correct the conduct by additional training or
supervision. Cotton v. Jenne, 326 F.3d 1352, 1361-61 (11th Cir. 2003). The
complaint alleges no such history and no such notice.
Because of these deficiencies, the amended complaint does not state a claim
against Chief Williams unless it alleges that he had a custom or policy and that
such custom or policy resulted in deliberate indifference to constitutional rights.
The amended complaint alleges that Chief Williams had a legal duty to adopt rules
and procedures to ensure the appropriate use of force; that he failed to adopt and
implement such rules and procedures; and that his failure resulted in the
responding officers’ deliberate indifference to the decedent’s constitutional rights.
(Doc. 41 at 9-10). The amended complaint appears to allege that Chief Williams’
failure constituted a custom. (Id. at 10, ¶ 37). Assuming without deciding that the
amended complaint adequately alleges supervisory liability on this basis, the Court
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considers whether Chief Williams is entitled to qualified immunity as to this
claim.
B. Qualified Immunity.
“[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.
“[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. ... If, and only if, the defendant does that will the burden
shift to the plaintiff to establish that the defendant violated clearly established
law.” Harbert International, 157 F.3d at 1281 (emphasis added). The reason is
that an official acting outside the scope of his discretionary authority “ceases to act
as a government official and instead acts on his own behalf,” so that “the policies
underlying the doctrine of qualified immunity no longer support its application.”
Id.
For purposes of federal qualified immunity analysis, a defendant acts
within his discretionary authority when “his actions were undertaken pursuant to
the performance of his duties and within the scope of his authority.” Rich v.
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Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988) (internal quotes omitted). That is,
“[w]e ask whether the government employee was (a) performing a legitimate jobrelated function (that is, pursuing a job-related goal), (b) through means that were
within his power to utilize.” Holloman ex rel. Holloman v. Harland, 370 F.3d
1252, 1265 (11th Cir. 2004). “The inquiry is not whether it was within the
defendant’s authority to commit the allegedly illegal act,” but “whether the act
complained of, if done for a proper purpose, would be within, or reasonably
related to, the outer perimeter of an official’s discretionary duties.” Harbert
International, 157 F.3d at 1282 (internal quotes omitted). For example, the issue
is not whether a marshal has the authority to deliver a prisoner into
unconstitutional conditions but whether he has the authority to transport and
deliver prisoners. Id. (describing Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir.
1994)).
As explained in Part II.A, the sole surviving basis of Count Two is that
Chief Williams had a legal duty to adopt and enforce rules and procedures
ensuring the appropriate use of force and that he failed to do so. (Doc. 41 at 9-10).
The amended complaint itself thus establishes that Chief Williams was acting
within his discretionary authority.
Because Chief Williams (with assistance from the plaintiff) has met his
threshold burden, the burden shifts to the plaintiff to demonstrate that his conduct
“violated a clearly established statutory or constitutional right.” Grayden, 345
F.3d at 1231. Assuming without deciding that the plaintiff could demonstrate that
the decedent’s constitutional rights were violated, she has not met her burden of
showing that the right was clearly established.
To be clearly established, “pre-existing law must dictate, that is truly
compel (not just suggest or allow or raise a question about), the conclusion for
every like situated reasonable government agent that what the defendant is doing
violates federal law in the circumstances.” Lassiter v. Alabama A&M University,
28 F.3d 1146, 1150 (11th Cir. 1994) (en banc). “The relevant, dispositive inquiry
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in determining whether a right is clearly established is whether it would be clear to
a reasonable officer that his conduct was unlawful in the situation he confronted.”
Saucier v. Katz, 533 U.S. 194, 202 (2001). The law is clearly established if any of
three situations exists.
“First, the words of the pertinent federal statute or constitutional provision
in some cases will be specific enough to establish clearly the law applicable to
particular conduct and circumstances to overcome qualified immunity, even in the
total absence of case law.” Vinyard , 311 F.3d at 1350 (emphasis omitted).
“Second, ... some broad statements of principle in case law are not tied to
particularized facts and can clearly establish law applicable in the future to
different sets of detailed facts.” Vinyard, 311 F.3d at 1351. “For example, if some
authoritative judicial decision decides a case by determining that ‘X Conduct’ is
unconstitutional without tying that determination to a particularized set of facts,
the decision on ‘X Conduct’ can be read as having clearly established a
constitutional principle: put differently, the precise facts surrounding ‘X Conduct’
are immaterial to the violation.” Id.
“Third, [when] the Supreme Court or we, or the pertinent state supreme
court has said that ‘Y Conduct’ is unconstitutional in ‘Z Circumstances,’” then if
“the circumstances facing a government official are not fairly distinguishable, that
is, are materially similar [to those involved in the opinion], the precedent can
clearly establish the applicable law.” Vinyard, 311 F.3d at 1351-52. When case
law is utilized to show that the law was clearly established, it must pre-date the
challenged conduct. Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir.
2005).
As noted, the plaintiff has remained silent in the face of Chief Williams’
invocation of qualified immunity. Because she bears the burden of showing that
Chief Williams’ alleged conduct violated a clearly established right, her failure to
address that burden is fatal.

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Qualified immunity is not available to an individual sued in his official
capacity. E.g., Bruce v. Beary, 498 F.3d 1232, 1249 n.33 (11th Cir. 2007). Nor
does it protect a defendant sued in his individual capacity for declaratory or
injunctive relief. E.g., Ratliff v. DeKalb County, 62 F.3d 338, 340 n.4 (11th Cir.
1995). However, there is no surviving official capacity claim against Chief
Williams, and Count Two seeks only damages. (Doc. 41 at 12-13).
CONCLUSION
For the reasons set forth above, the City’s motion to dismiss is granted,
and Chief Williams’ motion to dismiss is also granted. Count Two is dismissed,
and Counts One, Three and Four are limited as described above.
DONE and ORDERED this 18th day of September, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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