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McElroy v. City of Bessemer

United States District Court, N.D. Alabama, Southern Division

April 13, 2015

ELIZABETH McELROY, et al., Plaintiffs,
v.
CITY OF BESSEMER, ALABAMA, et al., Defendants.

MEMORANDUM OPINION AND ORDER [1]

JOHN H. ENGLAND, III, Magistrate Judge.

Plaintiffs Elizabeth McElroy[2] and Mamie Powell initiated this action in the Circuit Court of Jefferson County, Alabama, Bessemer Division, against Defendants City of Bessemer, Alabama and Officer Gabriel Kinderknecht. (Doc. 1-1). In their First Amended Complaint, Plaintiffs assert a 42 U.S.C. ยง 1983 claim for excessive force and state law claims for wrongful death and intentional infliction of emotional distress. (Id. ). Defendants removed the action to this Court and now move to dismiss the First Amended Complaint. (Docs. 1-1 & 5). The motion is fully briefed and ripe for review. (Docs. 5, 6, 9, & 10). For the reasons stated below, the motion, (doc. 5), is GRANTED IN PART AND DENIED IN PART.

I. Standard of Review

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." "[T]he pleading standard Rule 8 announces does not require detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" are insufficient. Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). "Nor does a complaint suffice if it tenders naked assertion [s]' devoid of further factual enhancement.'" Id. (citing Bell Atl. Corp., 550 U.S. at 557).

Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint 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." Iqbal, 556 U.S. at 678 (citations and internal quotation marks omitted). A complaint states a facially plausible claim for relief "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). The complaint must establish "more than a sheer possibility that a defendant has acted unlawfully." Id.; see also Twombly, 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above the speculative level."). Ultimately, this inquiry is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

II. Factual Background

The First Amended Complaint alleges, in pertinent part, as follows:

7. On May 15, 2012, the now deceased Mr. Powell was admitted to [sic] into UAB for an incident caused by high blood pressure and being a brittle diabetic. Mr. [sic] Parrish had apparently been acting strangely, and he had been lethargic to the point of even passing out in his kitchen, which prompted the May 15th call to 911.[3]
8. On May 17, 2012, Mr. Powell was with his mother, Mamie Powell, at their home.[4] Mr. Powell began acting in a manner which the family knew was a sign to check both his blood pressure and blood sugar. As the family thought, he had high blood pressure and low blood sugar, and thinking it was proper to do so, Mr. Powell's mother called 911 to see if they could take him to the hospital.[5]
9. After Mr. Powell's mother called 911, both the Fire Department and the Police Department were dispatched to the Powell home. The Fire Department arrived first. They attempted to attend to Mr. Powell, but Mr. Powell would not allow the attending paramedics [sic] take his blood pressure. Mr. Powell instead went to the kitchen to get a glass of water.
10. The Bessemer Police Department then arrived on the scene. The Fire Department personnel had exited the home and were on the front porch, where one of them told Mr. Powell's brother, Tim Powell, that Mr. Powell had a skillet in his hand.
11. Two (2) officers from the Bessemer Police Department entered the home and converged on the kitchen area where Mr. Powell, who was clearly disoriented but not acting erratically, was located. During a short conversation between Mr. Powell and the officers at least three (3) shots were fired. One (1) went into a deep freezer, one (1) through a window, and the third into the abdomen of Mr. Powell. This all occurred while Mamie Powell was in the adjoining room, where she heard her son being struck by the bullet.
12. Mr. Powell was taken to the University of Alabama at Birmingham Hospital, where he died as a direct result of the wounds inflected by the gunshot of ...

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