McCants et al v. City Of Mobile et al

Filing 33

ORDER entered GRANTING 14 Motion to Dismiss; GRANTING 15 Motion to Dismiss. It is ORDERED that all of Plaintiffs' claims are DISMISSED with prejudice, as further set out in Order. Signed by Magistrate Judge Sonja F. Bivins on 9/29/17. (clr)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION ROSE MCCANTS, et al., : : : : : CIVIL ACTION NO. 16-00546-B : : : : Plaintiffs, vs. CITY OF MOBILE, et al., Defendants. ORDER This case is before the Court on Defendants the City of Mobile, Mobile Police Department, and Steven Chandler’s Motions to Dismiss. (Docs. 14, 15, 16). These motions have been fully briefed and are ripe for resolution.1 Upon consideration of all matters presented, the Court concludes, for the reasons stated herein, that Defendants’ Motions to Dismiss (Docs. 14, 15) are GRANTED. I. Background Facts Plaintiffs Rose McCants and Regina Greene commenced this action on November 1, 2016. (Doc. 1). In their complaint, Plaintiffs allege that on November 6, 2015, Plaintiff Regina Greene (hereinafter “Greene”) was traveling on Highway 90 in Mobile, Alabama, when her car was struck from behind by James 1 The parties consented to have the undersigned conduct any and all proceedings in this case. (Docs. 23, 24, 25). Manning. (Doc. 1 ¶¶ 12-13). At the time of the accident, Greene’s mother, Plaintiff Rose McCants (hereinafter “McCants”), was traveling in a separate car ahead of Greene. 13). Upon seeing the accident, McCants stopped her vehicle to check on Greene. to (Doc. 1 ¶¶ 12- arrive on (hereinafter Department. (Id. at ¶ 14). the scene “Chandler”), a was The first emergency responder Defendant corporal with Steven the Chandler Mobile Police (Id. at ¶15). According to Plaintiffs, Chandler “laughed and chatted” with James, the white male “at-fault driver,” and “became very angry and screamed” Americans. (Id. at Greene and McCants, who are African- at ¶¶ 12, 16-18). Plaintiffs allege that Chandler punched McCants in the chest and that the force of the punch sent McCants off the median and into the lane of oncoming traffic. (Id. at ¶ 18). According to Greene, she begged Chandler not to hit her mother, but Chandler ignored her request and “screamed back at her to calm down.” (Id. at ¶ 20). Plaintiffs claim that Chandler forced Greene, “[t]hrough screaming and intimidation” to move from her seated position in the car and locate her purse in order to retrieve her license and insurance information. (Id. at ¶ 19). According to Plaintiffs, Greene is disabled from a previous neck injury, and this aggravated the injuries to her neck and spine. (Id.). Plaintiffs further contend that Greene was in extreme pain due 2 to the accident, and did not want to move until an ambulance arrived because she feared greater injury from movement. Paramedics later arrived on the scene, and (Id.). Greene was transported to Mobile Infirmary for treatment of her injuries. (Id. at ¶ 24). McCants was also treated at the hospital for the injuries she sustained as a result of being punched by Chandler. (Id. at ¶ 25). Plaintiffs allege that Chandler initially filed a false police report, which placed Greene at fault, but later changed his report to correctly cite the other driver. (Id. at ¶ 22). Plaintiffs also allege that they contacted Internal Affairs to investigate the incident, and the response was “dismissive”. (Id. ¶ 26). According to Plaintiffs, Chandler’s attitude, comments, and gestures towards them were racially based, and his treatment of the white, at-fault driver was dramatically different than his treatment of them. (Id. ¶ 22). Plaintiffs further allege that Chandler has a history of anger management problems and has been required to attend anger management in the past. (Id. at ¶ 21). Plaintiffs assert eight separate claims for relief. (Id. at ¶¶ 46-187). Claim one is that Officer Chandler used excessive force against McCants in violation of the Fourth and Fourteenth Amendments. (Id. at ¶ 46-85). Claim two is that Officer Chandler used excessive force against Greene in violation of the 3 Fourth and Fourteenth Amendments. (Id. at ¶ 46-85). Claim three is that Officer Chandler used excessive force against McCants and that her race was a motivating factor in violation of the equal protection afforded her under the Fourteenth Amendment and 42 U.S.C. § 1981 (Id. at ¶¶ 86-119). Claim four is that Officer Chandler used excessive force against Greene and that her race was a motivating factor in violation of the equal protection afforded her under the Fourteenth Amendment and 42 U.S.C. § 1981 (Id. at ¶¶ 86-119). Claim five is that Officer Chandler retaliated against McCants in violation of the First Amendment for exercising her right to question law enforcement or engaging in protected speech. (Id. at ¶¶ 120-153). Claim six is that Officer Chandler retaliated against McCants in violation of the First Amendment for exercising her right enforcement or engage in protected speech. to question law (Id. at ¶¶ 120-153). Claim seven is that the constitutional violations committed by Officer Chandler against McCants were done pursuant to the customs and practices of the City of Mobile (hereinafter “City”) and Mobile Defendants violation encouraged, Police have of Department exhibited constitutional tolerated, and (hereinafter deliberate and indifference federal ratified “MPD”), the rights type of as to and these the have behavior exhibited by Chandler by failing to conduct sufficient training and failing to investigate or punish violations. (Id. at ¶ 27, 4 28, 29-30, 34, 37, 38, 154-187). Claim eight is that the constitutional violations committed by Officer Chandler against Greene were done pursuant to the customs and practices of the City and MPD, indifference as to these the Defendants violation of have exhibited constitutional deliberate and federal rights and have encouraged, tolerated, and ratified the type of behavior exhibited by Chandler by failing to conduct sufficient training and failing to investigate or punish violations. (Id. at ¶ 27, 28, 29-30, 34, 37, 38, 154-187). II. Analysis Pending before the Court are the motions to dismiss filed by Defendants, the City, MPD, and Officer Chandler. 15, 16). proper (Docs. 14, In their motions, Defendants argue that MPD is not a party to a § 1983 action, that Plaintiffs have not properly plead a municipal liability claim against the City, and that the remainder of the claims are due to be dismissed because Plaintiffs have failed to properly plead cognizable claims under § 1983 and § 1981. (Id.). Defendant Chandler further argues that he is entitled to qualified immunity. (Docs. 15, 16). Plaintiffs filed a response in opposition and argue that civil rights complaints should be construed liberally in favor of plaintiffs at the motion to dismiss stage, that plaintiffs are not held to a higher pleading standard in § 1983 actions, and that Defendants are not entitled 5 to qualified immunity. (Doc. 22). arguments In that their replies, Plaintiffs have Defendants failed to reiterate meet the their requisite pleading standards, that Defendants have successfully carried their burden of demonstrating why the complaint fails to state a claim, and that Plaintiffs have failed to address a number of arguments raised in Defendants’ motions to dismiss. (Docs. 26, 27). The motions have been fully briefed and are now ready for resolution. A. Standard of Review A complaint is subject to dismissal under Rule 12(b)(6) if it fails “to state a claim upon which relief can be granted.” To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and internal omitted). A claim is plausible on its face where “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Plausibility means “more than defendant has acted unlawfully.” a sheer possibility that Id. a Id. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id. 6 When considering a motion to dismiss for failure to state a claim, the court must accept all allegations in the complaint as true and construe the facts in the light most favorable to the plaintiff. Lopez v. Target Corp., 676 F. 3d 1230, 1232 (llth Cir. 2012). However, the court is not bound to accept as true “a legal conclusion couched as a factual allegation.” 556 U.S. at 678. While legal conclusions can Iqbal, provide the framework of a complaint, they must be supported by factual allegations. Id.; see also Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (llth Cir. 2009), abrogated on other grounds by Mohamad v. Palestinian (“[U]nwarranted Auth., of deductions 566 in fact U.S. a 449 (2012)) complaint are not admitted as true for the purpose of testing the sufficiency of plaintiff’s allegations”) (citations and internal quotations omitted). The United States Supreme Court has suggested that courts adopt a “two-pronged approach” when considering motions to dismiss: “1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, ‘assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.’” American Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 664). Importantly, “courts may infer from the factual allegations in the complaint 7 ‘obvious alternative explanation[s],’ which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer.” Id. (quoting Iqbal, 556 U.S. at 682). B. Claims Against MPD Defendant MPD argues that it is not a proper legal entity that can be sued for the purposes of a § 1983 action. at 6). (Doc. 14 The capacity of a party such as MPD to be sued is determined “by the law of the state where the court is located.” FED.R.CIV.P. 17(b). In Alabama, a city’s police department “is not a suable entity or purposes.” a proper party under state law or for § 1983 Marks v. Selma City Police Dep’t, 2014 U.S. Dist. LEXIS 134366, 2014 WL 4772658, *1 (S.D. Ala. 2014)(quoting Blunt v. Tomlinson, 2009 U.S. Dist. LEXIS 28187, 2009 WL 921093, *4 (S.D. Ala. Apr. 1, 2009)); see also Lee v. Wood, 2007 U.S. Dist. LEXIS 103024, 2007 WL 2460756, *7 (S.D. Ala. 2007)(holding that Mobile Police Department is not a suable entity under Alabama law); Hawkins v. City of Greenville, 101 F. Supp. 2d 1356, 1363 (M.D. Ala. 2000) (holding that Greenville Police Department is not a proper party or suable entity); Higginbotham v. City of Pleasant Grove, 2013 U.S. Dist. LEXIS 141566, 2013 WL 5519577, *6 (N.D. Department Ala. is 2013) not a (holding suable that entity Pleasant and Grove dismissing Police it with prejudice); accord Mann v. Hillsborough Cnty. Sheriff’s Office, 8 946 F. Supp. 962, 970-71 (M.D. Fla. 1996) (“[T]he police department is the vehicle through which the city fulfills its policing functions[, and,] [t]herefore, the Florida courts have found that the city police department is not a legal entity and has no legal existence separate and apart from the city.”); Eddy v. Miami, 715 F. Supp. 1553, 1556 (S.D. Fla. 1989) (“Where a police department is an integral part of the city government as the vehicle through which the city government fulfills its policing functions, it is not an entity subject to suit.”); Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (holding that an Alabama Sheriff’s Department is not a suable entity because it lacks the capacity to be sued). Inasmuch as the MPD is not a suable entity under Alabama law, Plaintiffs’ claims against it are due to be dismissed. C. Plaintiffs’ Claims Against Officer Chandler Officer Chandler, who has been sued in his individual capacity, seeks the dismissal of Plaintiffs’ claims against him and asserts the affirmative According to Officer immunity, as there alleged conduct by Chandler, is no him constitutional violations. qualified immunity discretionary defense case as is law entitled that rising qualified to the from immunity. to clearly (Doc. 16 at 20-21). protects functions he of qualified defines level of the any The doctrine of government officials performing being in individual 9 sued their capacities. Officials Wilson are v. shielded Layne, insofar 526 as U.S. their 603, 609 conduct (1999). “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To receive qualified immunity, a government official first must prove that he was acting within his discretionary authority.” II, 326 F. 3d 1352, 1357 (llth Cir. 2003). Cottone v. Jenne, Once the government official satisfies this initial burden, the burden shifts to the plaintiff to show that the official is not entitled to qualified immunity. Id. at 1358. Courts utilize a two-part framework to evaluate whether an official engaged in a discretionary act is entitled to qualified immunity. One inquiry is whether the plaintiff’s allegations, if true, establish a constitutional violation. Hope v. Pelzer, 536 U.S. 730, 736 (2002)(citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). “If the facts, construed . . . in the light most favorable to the plaintiff, show that a constitutional right has been violated, another inquiry is whether the right was ‘clearly established.’” Barnett v. City of Florence, 409 Fed. Appx. 266, 270 (llth Cir. 2010)(citing Saucier, 533 U.S. at 201). Both elements of the two-prong test must be present for an official to lose qualified immunity, and the two-pronged analysis may be 10 done in whatever order is deemed appropriate for the case. Barnett, 409 Fed. Appx. 270 (citing Pearson v. Callahan, 555 U.S. 223, 241 (2009)). In their complaint, Plaintiffs assert that, at the time of the encounter on November 6, 2015, Officer Chandler was acting in his capacity as a law enforcement officer employed by the MPD and/or the City of Mobile. Plaintiffs further assert that Officer Chandler was the first emergency responder on the scene. Officer Chandler asserts, and Plaintiffs’ do not dispute, that Officer Chandler was acting within his discretionary authority during the events giving rise to the encounter with Plaintiffs; thus, the Chandler burden is not shifts to entitled Plaintiffs to qualified to show that immunity. As Officer noted, supra, the first step in this analysis is to determine whether Plaintiffs’ violation. allegations, if true, establish a constitutional See Barnett, 409 Fed. Appx. at 270. 1. Excessive Force Claims a. Greene Regina Greene alleges that her rights under the Fourth and Fourteenth Amendments were violated by Officer Chandler’s use of excessive force and that the use of force was objectively unreasonable in light of the facts and circumstances. at ¶¶ 51, 55, 71, 74). complaint does not allege (Doc. 1 Officer Chandler responds that the facts 11 supporting a seizure and that “any dismissed Fourth for violation.” Amendment failing to claim state is an therefore actionable due to be constitutional (Doc. 14 at 10; Doc. 16 at 6-7). While the Fourth Amendment guarantees citizens the right to be free from unreasonable searches and seizures, the mere fact that an interaction between law enforcement officers and a citizen occurred does not necessarily mean that a seizure has occurred. Touzin v. Patriarca, 2013 U.S. Dist. LEXIS 162435, *10-11, 2013 WL 6051062, *4 (S.D. Fla. Nov. 14, 2013)(citing United States v. Baker, 290 F. 3d 1276, 1277 (11th Cir. 2002) (additional citations omitted)). has long identified citizens and involving no three police: coercion categories (1) or Eleventh Circuit jurisprudence of encounters “police-citizen detention,” (2) between communications “brief seizures investigative detentions,” and (3) “full-scale arrests.” v. United States, 601 Fed. Appx. 841, 845 or Gomez (11th Cir. 2015)(citing United States v. Hastamorir, 881 F. 2d 1551, 1556 (11th Cir. 1989)). When the actions of the police do not show an unambiguous intent to restrain, a seizure occurs only if, in view of all the circumstances surrounding the incident, a reasonable would have believed that they were not free to leave. person O’Boyle v. Thrasher, 638 Fed. Appx. 873, 877 (11th Cir. 2016)(citing Brendlin v. California, 551 U.S. 12 249, 255 (2007)). Stated differently, for a seizure to occur, a person must not be free to disregard the police and go on about his or her business. West v. Davis, 767 F.3d 1063, 1069 (11th Cir. 2014)(citing California v. Hodari D., 499 U.S. 621, 628 (1991)). Further, a seizure only occurs when there is a governmental termination of freedom of movement through means intentionally applied. O’Boyle, 638 Fed. Appx. at 877 (citing West, 767 F. 3d at 1068). Courts consider “whether a citizen’s path is blocked or impeded; whether identification is retained; the suspect’s age, education and intelligence; the length of the suspect’s detention and questioning; the number of police officers present; the display of weapons; any physical touching of the language and tone of voice of the police.” suspect, and the West, 767 F. 3d at 1074. Greene does not allege, and nothing in the complaint suggests, that Officer Chandler inhibited Greene’s freedom of movement. According to the complaint, Officer Chandler responded to the scene of Greene’s traffic accident and screamed and yelled driver’s at Greene license and while directing insurance that information she retrieve from her her purse. There is no allegation that Officer Chandler took any action to intentionally limit Greene’s freedom of movement. F. 3d at 1068. Chandler See West, 767 Further, there is no allegation that Officer displayed a weapon or 13 that he prevented her from receiving medical treatment once paramedics arrived. To the contrary, Greene alleges that “[a]fter the incident made the basis of this lawsuit, paramedics arrived and [she] transported to Mobile Infirmary for emergency treatment.” 1 at ¶ 24). was (Doc. These facts do not rise to the level of a seizure under the Fourth Amendment. Furthermore, assuming arguendo that Officer Chandler’s actions did constitute a seizure, Greene has not alleged that Officer Chandler used any force against her, nor has she offered any facts suggesting that his request for her driver’s license and insurance was unreasonable under the circumstances. See Graham v. Connor, 490 U.S. 386, 397 (1989)(Under the Fourth Amendment, “the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, their underlying intent or motivation.”). without regard to Accordingly, taking as true the allegations contained in the complaint, Greene has failed to state an excessive force claim under the Fourth Amendment. Greene also alleges that Officer Chandler’s actions violated her Fourteenth Amendment right to bodily integrity and to be free from excessive force by law enforcement. ¶¶ 53, 56, 57, 72, 75, 76). (Doc. 1 at In his motion seeking dismissal, Officer Chandler argues that Greene has failed to establish a Fourteenth Amendment claim because she has failed to allege that 14 his actions “shock[ed] the conscience” or that he used force “maliciously or sadistically to cause harm.” (Doc. 14 at 11; Doc. 16 at 11). When analyzing a claim under the Fourteenth Amendment for a violation of a plaintiff’s substantive due process, the question is whether or conscience.” not the West, defendant’s 767 F. 3d use at of 1067 force (citing Gilstrap, 559 F. 3d 1212, 1217 (11th Cir. 2009)). “shocks Fennell the v. This is a more onerous standard of proof than the analysis of excessive force under the Fourth Amendment. Id. The use of force “shocks the conscience” if it is applied “maliciously and sadistically to cause harm.” Fennell, 559 F. 3d at 1217 (citing Hudson v. McMillian, 503 U.S. 1, 17 (1992) and Danley v. Allen, 540 F.3d 1298, 1306 (11th indifference” Cir. standard 2008)). envisioned The in type of custodial “deliberate cases is different than that envisioned in cases where the object of the alleged excessive force is not in custody, as “the standard is sensibly employed only when actual deliberation is practical.” County of Sacramento v. Lewis, 523 U.S. 833, 851 (1998)(citing Whitley v. Albers, 475 U.S. 312, 320 (1986)). Conscience- shocking conduct “duplicates no traditional category of commonlaw fault, but rather points clearly away from liability, or clearly toward it, only at the ends of the tort law’s spectrum of culpability” and “the due process guarantee does not entail a 15 body of constitutional law imposing liability whenever someone cloaked with state authority causes harm.” Lewis, 523 U.S. at 847-48. Indeed, in non-custodial circumstances, only a purpose to cause harm unrelated to the legitimate object of law enforcement satisfies the conscience element that is of arbitrary necessary for conduct a due shocking process to the violation. Daniel v. Hancock Cnty. School Dist., 626 Fed. Appx. 825, 830 (11th Cir. 2015) 836)(quotation (unpublished)(citing marks omitted). The Lewis, 523 U.S. at standard has been so narrowly interpreted and applied that even intentional wrongs seldom violate the due process clause. at 830 (citations omitted). Daniel, 626 Fed. Appx. Greene’s allegations that Officer Chandler screamed and yelled at her and requested her license and insurance information fails to meet her burden of pleading an egregious intentional wrong. Thus, Greene’s substantive due process claim against Officer Chandler must fail. b. Rose McCants In the complaint, Plaintiffs allege that, following Regina Greene’s accident, her mother, Rose McCants, who had been traveling in a car ahead of Greene, went to the accident scene to check on Greene. While there, McCants was punched in the chest by Officer Chandler. As a result, McCants fell off the median into the lane of traffic. 16 Plaintiffs further allege that, while at the hospital checking on Greene, McCants received medical attention for injuries sustained from Officer Chandler’s punch. (Doc. 1 at ¶¶ 12, 16-25). A searching review of Plaintiffs’ complaint does not reveal any allegations that suggest that Officer Chandler sought to question McCants, detain her, or that he said or did anything to suggest that McCants was not free to leave the accident scene. As a result, McCants has failed to state a seizure claim under the Fourth Amendment. See O’Boyle, 638 Fed. Appx. 873 (llth Cir. 2016)(plaintiff’s claim that the police chief grabbed his wrist and elbow in order to restrict or direct his physical movement and forcibly ejected him from the copy machine area does not show that the plaintiff was not free to walk away or end the encounter and proceed about his business; thus, he failed to establish a seizure claim under the Fourth Amendment). McCants Fourteenth has also Amendment failed because “shock the conscience.” to she state has a not claim alleged under facts the that As noted, supra, the only mention of physical contact between Officer Chandler and Plaintiffs is the allegation that he punched Plaintiff McCants in the chest and that the force of that punch “sent the elderly Plaintiff [McCants] backwards off the median and into the lane of oncoming traffic.” (Id. at ¶ 18). Force is conscience shocking under the Fourteenth Amendment only where it is used “maliciously and 17 sadistically to cause harm.” Daniel, 626 Fed. Appx. at 831. In Dacosta v. Nwachukwa, 304 F.3d 1045, 1047 (llth Cir. 2002), the Eleventh Circuit held that, where an instructor at a Georgia military college purposefully slammed a door in a student’s face, then violently swung the door several times in an attempt to knock the student back from the door after her arm became lodged in the shattered glass, then reached through the cracked glass pane and shoved the student’s face in an attempt to forcibly dislodge her arm from the glass pane, “such conduct, malicious as it may have been” did not amount to a federal constitutional violation. Id. at 1047. Also, in Daniel, 626 Fed. Appx. at 831, the Eleventh Circuit held that the officers’ use of pepper spray for the purpose of handicapping a group of high school football players during their altercation with an opposing group of high school football players “while surely ‘untoward, unfortunate and understandably upsetting[,]” did not state a substantive-due-process violation. Like Dacosta and Daniel, the conduct alleged in this case, punching an elderly plaintiff in the chest and causing her to fall into a lane of incoming traffic, while sad and disheartening, does not rise to the level under of egregious, Fourteenth conscience-shocking Amendment. Thus, McCant’s conduct substantive process claim against Officer Chandler must fail. 2. First Amendment Claim 18 required due Although not the model of clarity, Plaintiffs appear to allege that they “exercised [their] constitutionally protected right to question law enforcement and/or engaged in protected speech related to the constitutional rights of citizens with respect to objectionable substantially motivating police factor conduct,” in Officer and that Chandler’s a use of excessive force against them was to retaliate for exercising their constitutional behavior. (Doc. 1 right at ¶¶ to 126, question 127, 143, his objectionable 144). Defendants respond that Plaintiffs have not pled a cognizable claim under the First Amendment because they have not established any constitutionally-protected speech that they engaged in that was the motivation for any allegedly retaliatory actions by Officer Chandler. The (Doc. 14 at 15; Doc. 16 at 15). First Amendment protects the freedom of individuals verbally to oppose or challenge police action without risking arrest. Carr v. Cadeau, 658 Fed. Appx. 485, 489 (11th Cir. 2016) (citing City of Houston, Tex. v. Hill, 482 U.S. 451, 46263 (1987))(additional citations and quotations omitted). The courts have long held that state officials may not retaliate against private citizens because of the exercise of their First Amendment rights. Carr, 658 Fed. Appx. at 489 (citing Bennett v. Hendrix, 423 F. 3d 1247, 1255 (11th Cir. 2005)). To state a First Amendment retaliation claim, a plaintiff “must establish 19 first, that his speech or act was constitutionally protected; second, that the defendant’s retaliatory conduct adversely affected the protected speech; and third, that there is a causal connection between effect on speech.” the retaliatory actions and the Bennett, 423 F.3d at 1250. adverse Plaintiffs’ allegations “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. 662, 678. In other words, Plaintiffs must provide “a sequence of events from which one could . . . plausibly infer a retaliatory motive.” Smith v. Florida Dep’t of Corrections, 375 Fed. Appx. 905, 911 (11th Cir. 2010). In their complaint, Plaintiff allege that Officer Chandler became very angry and screamed when he approached Greene’s car; that he screamed at McCants and punched her in the chest; that he then resumed screaming at Greene and directed her to move from her seated insurance from position her purse; and retrieve and that her license Greene and begged her Officer Chandler not to hit her mom, but Officer Chandler ignored her and screamed back at her to calm down. these factual Plaintiffs, requested allegations Greene that engaged Officer in the in Chandler (Doc. 1 at 5). light protected not hit response, he screamed at her to calm down. most favorable activity her Viewing mom, when and to she in Taking these facts as true, they fail to establish “a sequence of events” from 20 which retaliation could be inferred. Indeed, Plaintiffs do not identify any statements or actions by Greene or McCants that precipitated Officer Chandler’s alleged striking of McCants, and they likewise fail to identify any retaliatory actions taken by Officer Chandler in response to McCants’ plea. Accordingly, their First Amendment claim must fail. 3. Racial Discrimination/Equal Protection Claims Plaintiffs argue that they had the clearly established a statutory right to be free from racially motivated beatings and that their race was the motiving factor in Officer Chandler’s decision to use excessive force. also argue that Officer (Doc. 1 at 22). Chandler’s “attitude, Plaintiffs comments and gestures” toward both Green and McCants were “racially based.” (Id. at 5). treated them Plaintiffs further differently allege than “the that Officer Chandler white, clearly at-fault driver” and that Officer Chandler initially prepared a false police report placing Greene at fault, but later, due to scrutiny of his report, changed the report and cited the atfault driver even though no evidence had changed. The Fourteenth State’s purpose of Amendment jurisdiction the is Equal “to Protection secure against every Clause person intentional and of within the the arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” 21 Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). succinctly, “the Equal Protection Clause requires entities to treat similarly situated people alike.” Put government Campbell v. Rainbow City, Ala., 434 F.3d 1306, 1313 (11th Cir. 2006). Thus, to state a plausible claim for an equal protection violation, Plaintiffs situated must allege persons that “through have been treated state action, disparately.” Watts, 448 Fed. Appx. 3, 5 (11th Cir. 2011). Plaintiffs have failed to do so. similarly Bumpus In v. this case, While Plaintiffs allege that the at-fault driver was white, there is no allegation that they were similarly situated, nor have Plaintiffs offered any facts which suggest such. Conclusory and unsupported allegations simply do not rise to the level of a constitutional violation. See, e.g., Iqbal, 556 U.S. 662, 681 (conclusory allegations of unconstitutional conduct without specific factual allegations fail to state a claim under § 1983). Further, the mere fact that Officer Chandler may have been rude or obnoxious is not sufficient to establish an equal protection violation. Gordon v. Benson, 2012 U.S. Dist. LEXIS 89247, *22, 2012 WL 2522290, *7 June 28, poorly or 2012) (“The unfairly violation.”). fact is that not, Therefore, in Defendants itself, Plaintiffs valid equal protection violation claim. 22 have (W.D. Mich. treated an Plaintiff equal-protection failed to state a Based on the foregoing, all of Plaintiffs’ claims against Officer Chandler must fail. D. Plaintiffs’ Claims Against the City Plaintiffs allege that the City “developed and maintained policies, procedures, deliberate customs, indifference to and/or the practices constitutional exhibiting rights of citizens, which were moving forces behind and proximately caused the violation of [Plaintiffs’] constitutional and federal rights” and “created and tolerated an atmosphere of lawlessness, and developed and maintained long-standing, department-wide customs, law enforcement related policies, procedures, customs, practices, and/or failed to properly train and/or supervise its officers in a manner amounting to deliberate indifference to the constitutional rights of Plaintiff and of the public.” (Doc. 1 ¶¶ 164, 165, 181, 182). Plaintiffs further assert that that “[i]n light of the duties and responsibilities of those police officers that participate in law enforcement and preparation of police reports, the need for specialized training and supervision is so obvious, and the inadequacy of training and/or supervision is so likely to result in the violation of constitutional and federal rights such as those described herein that the failure to provide such specialized training and supervision is deliberately indifferent to those rights,” and the “deliberately indifferent training and supervision provided by Defendant City . . . resulted from a conscious or deliberate 23 choice to follow a course of action from among various alternatives available to the Defendant City . . . and were moving forces in the constitutional injuries complained of by Plaintiff.” and federal violation (Id. at ¶¶ 166, 167, 183, 184). The City responds that Plaintiffs have not alleged plausible specific allegations demonstrating that the City had a need to train because of prior misconduct that was substantially similar to the conduct complained above here and that this is not the violation type is of so exceptional predictable repeated incidents. case as where to a provide constitutional notice without (Doc. 14 at 16). In Monell v. Department of Soc. Servs. of New York, 436 U.S. 658, 691 (1978), the Supreme Court held that a municipality cannot be held liable under 42 U.S.C. § 1983 on a theory of respondeat superior. held liable solely In other words, “a municipality cannot be because it employs a tortfeasor.” Id. Instead, a municipality may be held accountable in damages for the conduct of a particular governmental actor only when the plaintiff shows that the execution of the municipality’s official “policy” or “custom” effectively was the cause of the complained of injury. Id. at 694. Thus, “[t]o impose § 1983 liability on a municipality, a plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality 24 had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation.” Seminole Cnty., McDowell v. Plaintiffs’ claim. 610 Brown, F.3d 392 allegations Therefore, T.W. ex rel. Wilson v. School Bd. of 588, 603 (llth Cir. 3d 1283, 1289 (llth F. are insufficient Plaintiffs’ claims to against 2010)(quoting Cir. 2004)). establish the City this must fail. III. Conclusion Based on the foregoing, Defendants’ Plaintiffs’ Complaint are GRANTED. Motions to Dismiss It is ORDERED that all of Plaintiffs’ claims are DISMISSED with prejudice. DONE this 29th day of September, 2017. /s/ SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE 25

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