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Gunn v. City of Montgomery

United States District Court, M.D. Alabama, Northern Division

March 24, 2017

NELLIE RUTH GUNN, individually and as Administratrix of the Estate of Gregory Gunn, Deceased, Plaintiff,
v.
CITY OF MONTGOMERY, ALABAMA, et al . Defendants.

          ORDER

          W. KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE

         On March 2, 2017, the Magistrate Judge filed a Recommendation (Doc. # 41) to which Plaintiff objected. (Doc. # 44.) The court has conducted an independent and de novo review of those portions of the Recommendation to which objection is made. See 28 U.S.C. § 636(b).

         I. FACTS[1]

         In the very early morning hours of February 25, 2016, Defendant Aaron Cody Smith, a white police officer for the City of Montgomery, Alabama, was on patrol alone in his vehicle when he confronted Gregory Gunn, a 58-year-old African-American, as Mr. Gunn gun was walking home from a card game at a neighbor's house. Without any basis for reasonable suspicion that Mr. Gunn was involved in criminal activity, Smith approached Mr. Gunn and initiated a “stop and frisk.” Mr. Gunn was not armed and Smith had no reason to believe he was armed.

         Before Smith completed the pat-down, Mr. Gunn fled in the direction of his home. Smith, still lacking any reasonable suspicion that Mr. Gunn was involved in criminal activity, pursued Mr. Gunn on foot. During the pursuit, Smith deployed a Taser on Mr. Gunn at least three times, even though Mr. Gunn had not threatened Smith and Smith had no reason to fear for his own safety. Because the Taser failed to stop Mr. Gunn's flight, Smith struck Mr. Gunn several times with an expandable metal baton. During the entire confrontation, Mr. Gunn made no oral threats, never made any aggressive moves, and never tried to reach for any of Smith's weapons. Nevertheless, by the time Mr. Gunn reached his next-door neighbor's house, Smith brandished his service firearm and fired seven shots at Mr. Gunn, striking him five times and killing him. Mr. Gunn died shortly thereafter in his next-door neighbor's front yard. When he died, he was only steps away from the home he shared with his mother, Plaintiff Nellie Ruth Gunn.

         II. PROCEDURAL HISTORY

         On July 8, 2016, Plaintiff filed this suit in her individual capacity and in her capacity as administratrix of the estate of Gregory Gunn. She asserts claims under 42 U.S.C. § 1983 and state law claims. With respect to the §1983 claims, Plaintiff seeks to recover personally for loss of companionship and support (Doc. # 1 at ¶¶ 131, 173, 189, 206, 227) and in her representative capacity for the death of her son.[2]

         On August 11, 2016, Defendants filed a motion to dismiss all Plaintiff's individual and representative capacity claims. On March 2, 2017, the Magistrate Judge entered a Recommendation that the motion to dismiss be granted as to Plaintiff's individual capacity § 1983 claims and denied as to the remainder of her claims. The Magistrate Judge held that Plaintiff did not have standing to assert individual capacity claims under § 1983 for any injuries she suffered due to the alleged violation of Mr. Gunn's constitutional rights. (Doc. # 41 at 8.)

         On March 15, 2017, Plaintiff Nellie Ruth Gunn filed objections to the Magistrate Judge's Recommendation that her individual capacity §1983 claims should be dismissed. (Doc. # 44.)

         III. DISCUSSION

         Citing Carringer v. Rodgers, 331 F.3d 844, 849 (11th Cir. 2003) and Brazier v. Cherry, 293 F.2d 401, 409 (5th Cir. 1961), [3] Plaintiff argues that § 1983 is deficient for not providing for individual capacity claims in the event of a loved one's death by unconstitutional means, but the court should not look to state law to remedy the deficiency because Alabama law's failure to recognize such claims in the wrongful death context fails to fully effectuate the purposes of §1983.[4] In Carringer and Brazier, the Court of Appeals held that that § 1983 is deficient in not providing for survivorship of a §1983 claim for unconstitutional conduct that resulted in death and looked to state survivorship and wrongful death statutes to determine that a civil rights wrongful death claim survives. In concluding that Plaintiff lacked standing to assert individual capacity § 1983 claims for injuries personal to her resulting from the death of her adult son, the Magistrate Judge found that Carringer and Brazier are distinguishable because the present case is an Alabama case, and, in the cited cases, the Court of Appeals looked to and incorporated Georgia state law.[5]

         Carringer and Brazier are distinguishable, but not necessarily because the Court of Appeals looked to Georgia law instead of Alabama law. They are distinguishable because they relate to the survivorship of a decedent's § 1983 action, whereas this case involves a different question: whether § 1983 is a remedy for injuries personal to a parent when an adult child is killed as a result of unconstitutional actions by state officers. In Robertson v. Hecksel, 420 F.3d 1254 (11th Cir. 2005), a case very similar to this one, [6] the Eleventh Circuit noted the importance of the distinction:

[The decedent's mother] argues her claim is controlled by Brazier v. Cherry, 293 F.2d 401 (5th Cir.1961), and Carringer v. Rodgers, 331 F.3d 844 (11th Cir.2003). Because those cases involve the application of 42 U.S.C. § 1988, it will be helpful for us to first briefly discuss how § 1988 works before explaining why ...

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