United States District Court, S.D. Alabama, Southern Division
For Jonie Key, Plaintiff: J. Gregory Evans, LEAD ATTORNEY, Mobile, AL; Samuel Joshua Briskman, LEAD ATTORNEY, Briskman & Binion, P.C., Mobile, AL.
For James Mott, Defendant: Thomas O. Gaillard, III, LEAD ATTORNEY, Alicia Jacob Corley, Galloway, Wettermark, Everest, Rutens & Gaillard, LLP, Mobile, AL.
For The Town of Mount Vernon, Defendant: Erin B. Fleming, LEAD ATTORNEY, Fairhope, AL; Jay M. Ross, Adams & Reese, LLP, Mobile, AL; Terry A. Sides, Hale Sides LLC, Birmingham, AL.
For Mayor Jerry C. Lundy, Chief of Police Steve A. Reed, Joe Cassidy, Jerry K. Taylor, Johnnie Robinson, Cecil Earl Driskill, Robert Taylor, Jr., Jeffery Bolden, Jr., Verdell Trotter-Dees, Defendants: Erin B. Fleming, LEAD ATTORNEY, Fairhope, AL; Terry A. Sides, Hale Sides LLC, Birmingham, AL.
REPORT AND RECOMMENDATION
BERT W. MILLING, JR., UNITED STATES MAGISTRATE JUDGE.
The Motion to Dismiss Plaintiff's Third Amended Complaint filed by Defendants Lundy, Reed, Cassidy, and Taylor (referred to herein collectively as Defendants ) has been referred for report and recommendation, under 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2. Jurisdiction was invoked under 28 U.S.C. § § 1331 and 1367, pursuant to 42 U.S.C. § 1983. After consideration, it is recommended that Defendants' Motion to Dismiss (Docs. 116-17) be granted.
In a Report and Recommendation entered on April 4, 2013, the undersigned set out the following:
The facts are, briefly, as follows. On September 29, 2010 Plaintiff Jonie Key was in custody in the Jail of Defendant Town of Mount Vernon (hereinafter Mount Vernon or Town) (Doc. 26, ¶ ¶ 1, 46). Defendant James Mott, a Mount Vernon police officer, was on duty at the jail that day when Plaintiff asked to use the jail phone ( id. at ¶ ¶ 2, 4, 47-48). Mott took Key to the small room where the inmate phone was located and had sexual intercourse with her; he then took Plaintiff back to her cell and left the jail ( id. at ¶ ¶ 50, 52-53, 56). On July 9, 2012, Mott pled guilty to custodial sexual misconduct, a Class C felony under Ala. Code § 14-11-31 ( id. at ¶ 59).
On September 25, 2012, Plaintiff brought this action, asserting eight claims against Mott, Mount Vernon, and multiple other Defendants (Doc. 1). On December 12, Key filed her First Amended Complaint, asserting the following claims against all Defendants: (1) assault (Doc. 26, ¶ ¶ 65-67); (2) violation of the custodial sexual misconduct statute ( id. at ¶ ¶ 68-70); (3) violations of the First, Fourth, Fifth, Eighth, and Fourteenth Amendments of the United States Constitution ( id. at ¶ ¶ 71-73); (4) violation of constitutional rights due to custom, policy, or practice in the hiring of Mott ( id. at ¶ ¶ 74-77); (5) violation of constitutional rights due to custom, policy, or practice in the training and/or supervision of Mott ( id. at ¶ ¶ 78-81); (6) violation of constitutional rights due to sexual harassment and/or improper sexual conduct ( id. at ¶ ¶ 82-85); (7) violation of constitutional rights due to custom, policy or practice in having no gender restrictions in the supervision of inmates ( id. at ¶ ¶ 86-89); and (8) violation of constitutional rights due to custom, policy, or practice in the policy of violating citizens'/inmates' constitutional rights ( id. at ¶ ¶ 90-93). Key seeks compensatory and punitive damages for her injuries as well as attorneys' fees and costs (Doc. 26).
On December 27, Mount Vernon filed a Motion to Dismiss the First Amended Complaint (Docs. 29-30); on that same date, a Motion to Dismiss the First Amended Complaint was collectively filed by all of the individual Defendants except for Mott (Docs. 31-32).
(Doc. 45, pp. 1-4) (footnotes omitted).
That Report recommended that the two Motions to Dismiss (Docs. 29-32) be granted (Doc. 45, p. 1). There was a further recommendation " that Plaintiff's § 1983 claims against Defendants Lundy, Reed, Cassidy, Jerry K. Taylor, Robinson, Driskell, Robert Taylor, Jr., Bolden, and Trotter-Dees in their official [and individual] capacities be dismissed" (Doc. 45, p. 3, n.1; id. at pp. 16-17, 25-26). Finally, it was recommended that all Defendants, except for Defendant Mott, be dismissed from the action and that the punitive damages claim against the Town of Mount Vernon be dismissed (Doc. 45, pp. 36-37).
On April 30, 2013, United States District Judge DuBose entered an Order, adopting the Report and Recommendation in part and rejecting it in part (Doc. 55). Specifically, Dubose
ORDERED that Defendant Mount Vernon's Motion to Dismiss (Docs. 29) [be] DENIED as to claims involving violations of the Eighth Amendment as alleged in counts three (3), four (4), and five (5) of Plaintiff's First Amended Complaint and GRANTED as to all other claims and Plaintiff's demand for punitive damages, and that the Motion to Dismiss filed by the Individual Defendants (Doc. 31) [be] DENIED as to claims against Defendants Steve A. Reed, Jerry K. Taylor, Joe Cassidy, and Jerry C. Lundy in their individual capacities involving violations of the Eighth Amendment as alleged in counts three (3), four (4), and five (5) of Plaintiff's First Amended Complaint and GRANTED as to all other claims.
(Doc. 55, pp. 3-4).
Defendants Cassady, Lundy, Reed, and Taylor filed an Interlocutory Appeal, asserting that this Court had improperly denied their Motion to Dismiss the § 1983 claims on the grounds of qualified immunity (Doc. 62). On May 7, 2014, the Eleventh Circuit Court of Appeals remanded the action to this Court so that Key could " amend her complaint in light of [its] recent decision in Franklin v. Curry, 738 F.3d 1246 (11th Cir. 2013)" (Doc. 103, p. 2).
On August 15, 2014, Plaintiff filed her Third Amended Complaint in which she raised the following claims: violation of Key's constitutional rights pursuant to 42 U.S.C. § 1983 (count two); violation of Key's constitutional rights due to custom policy or practice: hiring of Mott (count three); and violation of Key's constitutional rights due to custom policy or practice: training and/or supervision of Mott (count four) (Doc. 112). The Defendants filed ...