McCants et al v. City Of Mobile et al

Filing 35

AMENDED Order re: 14 MOTION to Dismiss filed by the City Of Mobile, City of Mobile Police Department & 15 MOTION to Dismiss filed by Steven Chandler stating for the reasons set out the Defendants' Motions to Dismiss are GRANTED. All of Plaintiffs' claims are DISMISSED with prejudice. Signed by Magistrate Judge Sonja F. Bivins on 10/3/17. Copies to counsel. (mpp)

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.

AMENDED ORDER1
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.2

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

1

Pursuant to Fed.R.Civ.P. 60(a), the Court hereby
substitutes the instant order for the Order entered on September
29, 2017.
2

The parties consented to have the undersigned conduct any
and all proceedings in this case. (Docs. 23, 24, 25).

Greene (hereinafter “Greene”) was traveling on Highway 90 in
Mobile, Alabama, when her car was struck from behind by James
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
2

this

aggravated

the

injuries

to

her

neck

and

spine.

(Id.).

Plaintiffs further contend that Greene was in extreme pain due
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
3

Amendments.

(Id.

at

¶

46-85).

Claim

two

is

that

Officer

Chandler used excessive force against Greene in violation of the
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 ¶¶ 120-136).

Claim six is that

Officer Chandler retaliated against Greene in violation of the
First

Amendment

for

exercising

her

right

enforcement or engage in protected speech.

to

question

law

(Id. at ¶¶ 137-153).

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

4

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,
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
5

are not held to a higher pleading standard in § 1983 actions,
and

that

(Doc.

Defendants

22).

arguments

In

that

are

their

not

entitled

replies,

Plaintiffs

have

to

qualified

Defendants
failed

to

immunity.

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,
6

it stops short of the line between possibility and plausibility
of entitlement to relief.”

Id.

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

deductions

Auth.,

566

of

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
7

Cir.

2010)

(quoting

Iqbal,

556

U.S.

at

664).

Importantly,

“courts may infer from the factual allegations in the complaint
‘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.

Ala.

2013)

(holding
8

that

Pleasant

Grove

Police

Department

is

not

a

suable

entity

and

dismissing

it

with

prejudice); 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

Chandler,

is

by

no

him

immunity

functions

capacities.

Wilson

are

v.

shielded

he

of

is

law

qualified

entitled

that

rising

to

the

from

immunity.

to

clearly

(Doc. 16 at 20-21).

protects

discretionary

Officials

case
as

constitutional violations.
qualified

defense

qualified

defines

level

of

the
any

The doctrine of

government

officials

performing

being

in

individual

Layne,
insofar

sued

526
as

U.S.
their

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.”
9

Cottone v. Jenne,

II, 326 F. 3d 1352, 1357 (llth Cir. 2003).

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
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.
10

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

shifts

not

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
that

does

“any

dismissed

not

Fourth
for

violation.”

Officer Chandler responds that the

allege

facts

Amendment

failing

to

(Doc. 1

supporting

claim

state

an

is

a

seizure

therefore

actionable

due

and

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,
11

*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.

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;
12

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

that

he

prevented

her

receiving medical treatment once paramedics arrived.

from

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,
13

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,

without

their underlying intent or motivation.”).

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
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

conscience.”

or

not

the

West,

defendant’s

767

F.

3d

at

use

of

1067

force
(citing

Gilstrap, 559 F. 3d 1212, 1217 (11th Cir. 2009)).
14

“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)).

The

envisioned

type

in

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
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
conscience

the

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
15

(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.

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
16

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

the

facts

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
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
17

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,

conduct

McCant’s

required

substantive

due

process claim against Officer Chandler must fail.
2. First Amendment Claim
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

substantially

objectionable
motivating

police

factor

in

conduct,”
Officer

and

Chandler’s

that

a

use

of

excessive force against them was to retaliate for exercising
their

constitutional

right

to
18

question

his

objectionable

behavior.

(Doc.

1

at

¶¶

126,

127,

143,

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
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

Bennett, 423 F.3d at 1250.

the

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.
19

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

when

mom,

and

to
she
in

Taking these facts

as true, they fail to establish “a sequence of events” from
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
20

had

the

clearly

established

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

Plaintiffs

them

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

purpose

Fourteenth
State’s

of

Amendment

the
is

jurisdiction

Equal

“to

Protection

secure

against

every

Clause

person

intentional

of

the

within

the

and

arbitrary

discrimination, whether occasioned by express terms of a statute
or by its improper execution through duly constituted agents.”
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

persons

allege

that

“through

have

been

treated

state

disparately.”

Watts, 448 Fed. Appx. 3, 5 (11th Cir. 2011).
21

action,

In

similarly
Bumpus

v.

this case,

Plaintiffs have failed to do so.

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.
For instance, while Greene complains that officer Chandler
demanded her license and insurance information, she does not
allege that he did not require the at-fault white driver to
produce his license and insurance information, nor are there any
allegations which suggest that Officer Chandler requested this
information for an improper purpose.

Moreover, while Greene

alleges that Officer Chandler initially prepared the accident
report placing her at fault, and that under scrutiny, he changed
it to place fault with the other driver, she does not allege any
facts which would suggest that Officer Chandler prepared the
initial report falsely because of her race or that he corrected
it because of race.
With

respect

to

Plaintiff

McCants,

Plaintiffs

do

not

allege, and there are no facts in the complaint that suggest,
that

McCants,

similarly

who

situated

was
to

not
the

involved in the accident.

involved
at-fault

in
white

the

accident,

driver,

who

was
was

Moreover, while Plaintiffs allege

that Officer Chandler’s treatment of them was motivated by their
race, aside from their conclusory allegations, they have offered
no comments, statements, or facts from which one could infer a
22

racial bias.

In fact, Plaintiffs instead allege that Officer

Chandler has a history of anger issues and has had to undergo
anger management.
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

2012)

or

(“The

unfairly

violation.”).

fact

is

that

not,

Therefore,

Defendants

in

itself,

Plaintiffs

valid equal protection violation claim.

treated

an

have

(W.D. Mich.
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,
deliberate

procedures,
indifference

customs,
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
23

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
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
24

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
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.

610

Brown,

T.W. ex rel. Wilson v. School Bd. of

F.3d
392

F.

588,

603

(llth

Cir.

3d

1283,

1289

(llth

2010)(quoting
Cir.

2004)).

The Court agrees with the City that there are no factual
allegations that support the municipal liability claims. While
Plaintiffs claim that Officer Chandler has anger issues and had
to undergo anger management, there are no allegations that there
25

were other excessive force or race discrimination claims against
him.

Aside

from

their

conclusory

allegations,

the

instant

incident is the only one identified in the complaint involving
him or any other officer.

This is not a sufficient basis for

this theory of liability.

See Sanchez v. Miami-Dade County,

2007 U.S. Dist. LEXIS 46346, 2007 WL 1746190, *2 (S.D. Fla. Mar.
28, 2007) (An “allegation that the [municipality] did not train
and supervise its officers with no specifics is not sufficient
to

establish

that

the

police

officers

were

acting

under

an

official [municipal] policy.”); see also Hall v. Smith, 170 Fed.
Appx. 105, 108 (llth Cir. 2006)(affirming dismissal of section
1983 claim against a municipality where the plaintiff “alleged
no

factual

support

[municipality]

had

for
a

his

policy

conclusory
or

custom

statement

of

grossly

that

the

inadequate

supervision and training of its employees”); Cannon v. Macon
County, 1 F.3d 1558, 1565 (llth Cir. 1993)(affirming dismissal
of section 1983 claim against the county where plaintiff failed
“to allege any facts whatsoever to indicate that the alleged
violation was a result of a County policy or practice that would
give rise to County liability”); Rosario v. Miami-Dade County,
490 F. Supp. 2d 1213, 1225 (S.D. Fla. 2007)(dismissing section
1983 claim where plaintiffs

“failed to allege any facts” in

support of her claim beyond her own isolated incident). As in
the

above-referenced

cases,

Plaintiffs
26

have

not

presented

allegations supporting their conclusory claim that there was a
history of widespread abuse.

Thus, their claims against the

City 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 3rd day of October, 2017.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

27