Smith v. City Of Mobile et al
ORDER denying 18 Stimpson's Motion to Dismiss; in plaintiff's response he moves to dismiss his official capacity claims against Stimpson while continuing to litigate the individual capacity claims (Doc. 24), that motion is also denied. Signed by Magistrate Judge Katherine P. Nelson on 1/27/2017. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CITY OF MOBILE, et al.,
CIVIL ACTION NO. 16-00478-N
This action is before the Court on the motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) (Doc. 18) and supporting memorandum (Doc. 19) filed by
Defendant Sandy S. Stimpson. Plaintiff Michael Smith has timely filed a response
to the motion. Stimpson has not filed a reply to the response, and the time to do so
has expired. (See Doc. 21). Thus, the motion is now under submission and is ripe
In his five-count complaint (Doc. 1), Smith, a former police officer for the
Defendant City of Mobile (“the City”), asserts claims under 42 U.S.C. § 1983 and
Alabama law for alleged deprivations of various rights during his termination
Stimpson first claims that he is being sued “exclusively in his official
capacity” as the City’s mayor. (Doc. 19 at 2 (emphasis in original). See also id. at 3
(“… Mayor Stimpson is named as a Defendant solely in his official capacity as
In his response, Smith asserts that he is suing Stimpson both
individually and in an official capacity.
The Complaint supports Smith’s assertion.
With the consent of the parties, the Court has designated the undersigned
Magistrate Judge to conduct all proceedings in this civil action in accordance with
28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73.
(See Docs. 27, 28).
While the body of the Complaint does not specify in what capacity Stimpson is being
sued, as it does with Defendant Donald Dees, (see Doc. 1 at 2, ¶ 6), the style includes
Stimpson as a defendant both “individually and as Mayor of the City of Mobile…”
(Doc. 1 at 1).2
Stimpson next argues that the official capacity claims against him are due to
be dismissed because “a plaintiff cannot pursue claims against a municipal officer in
his/her official capacity.”
(Doc. 19 at 2). This is an incorrect statement of law.
See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 n.55 (1978)
(“Since official-capacity suits generally represent only another way of pleading an
action against an entity of which an officer is an agent—at least where Eleventh
Amendment considerations do not control analysis—our holding today that local
governments can be sued under § 1983 necessarily decides that local government
officials sued in their official capacities are ‘persons’ under § 1983 in those cases in
which, as here, a local government would be suable in its own name.”); Ala. Mun.
Ins. Corp. v. Allen, 164 So. 3d 568, 576 (Ala. 2014) (per curiam) (“[C]laims that are
brought against municipal employees in their official capacity are also, as a matter
of law, claims against the municipality.”).
It is true that, “[b]ecause suits against a municipal officer sued in his official
capacity and direct suits against municipalities are functionally equivalent, there no
longer exists a need to bring official-capacity actions against local government
officials, because local government units can be sued directly (provided, of course,
that the public entity receives notice and an opportunity to respond).”
of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (per curiam).
Busby v. City
See also Kentucky v.
The style misspells Stimpson’s last name as “Simpson,” though it is spelled
correctly throughout the body of the Complaint.
Graham, 473 U.S. 159, 167 n.14 (1985) (“There is no longer a need to bring
official-capacity actions against local government officials, for under Monell, local
government units can be sued directly for damages and injunctive or declaratory
relief.” (internal citation omitted)).
Here, the City has also been named as a
defendant and has answered the complaint.
(See Doc. 17).
because the official capacity claims against Stimpson are redundant of those against
the City does not mean they “fail to state a claim upon which relief can be granted”
so as to justify dismissal under Rule 12(b)(6).
Accordingly, Stimpson’s Rule 12(b)(6)
motion to dismiss (Doc. 18) is DENIED.
In his response, Smith moves to voluntarily dismiss his official capacity
claims against Stimpson while continuing to litigate the individual capacity claims.
(Doc. 24 at 2). However, that motion is also DENIED. While Federal Rule of Civil
Procedure 41(a) permits voluntary dismissal, that “ ‘Rule speaks of voluntary
dismissal of “an action,” not a claim.’ State Treasurer v. Barry, 168 F.3d 8, 19 n.9
(11th Cir. 1999). Put simply, Rule 41 allows a plaintiff to dismiss all of his claims
against a particular defendant; its text does not permit plaintiffs to pick and choose,
dismissing only particular claims within an action.”
Klay v. United Healthgroup,
Inc., 376 F.3d 1092, 1106 (11th Cir. 2004). “A plaintiff wishing to eliminate
particular claims or issues from the action should amend the complaint under Rule
15(a) rather than dismiss under Rule 41(a).”
Id. (quotation omitted). However,
permitting Smith to amend his complaint simply to drop his official capacity claims
against Stimpson would accomplish little at this juncture, 3 as Stimpson would
The time for Smith to amend his pleading once as a matter of course under Federal
Rule of Civil Procedure 15(a)(1)(B) has expired. Thus, Smith may now only amend
his complaint “with the opposing party’s written consent or the court’s leave.” Fed.
R. Civ. P. 15(a)(2).
remain a party to this action in his individual capacity.
Under Federal Rule of Civil Procedure 21, “[o]n motion or on its own, the court
may at any time, on just terms, add or drop a party.”
Dropping the City of Mobile
as a defendant would serve to reduce the number of named parties in this action
while functionally preserving Smith’s claims against the City through the official
capacity claims against Stimpson. Cf. Busby, 931 F.2d at 776 (“To keep both the
City and the officers sued in their official capacity as defendants in this case would
have been redundant and possibly confusing to the jury. We therefore AFFIRM the
district court's decision to grant a directed verdict in favor of Walsh, Mays, Paden,
and Noble as officially named defendants, because the City of Orlando remained as a
defendant.”). Upon consideration, any party opposed must show cause in writing,
to be filed and served no later than Monday, February 6, 2017, why the Court
should not drop the City of Mobile as a defendant under Rule 21.
DONE and ORDERED this the 27th day of January 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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