United States District Court, N.D. Alabama, Eastern Division
SHIRLEY McBRAYER FLOOD, as Personal Representative of the Estate of DAVID DANIEL McBRAYER, deceased, Plaintiff,
CITY OF JACKSONVILLE, ALABAMA; and DALE MURPHY EDWARDS, Defendants.
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS United States District Judge.
a civil action filed by the Plaintiff, Shirley McBrayer
Flood, as personal representative of the estate of David
Daniel McBrayer, who is deceased. (Doc. 23). The allegations
in the First Amended Complaint arise out of the fatal
shooting of McBrayer by Officer Dale Murphy Edwards, a police
officer with the City of Jacksonville, Alabama's police
department. Only two Defendants remain in this case-the City
of Jacksonville, Alabama (“the City”) and Officer
Edwards. Against the City of Jacksonville, the First Amended
Complaint sets out claims for: violation of the Americans
with Disabilities Act, 42 U.S.C. §§12111-12213 (the
“ADA”) (Count One); violation of the
Rehabilitation Act, 29 U.S.C. §§ 701-797b (Count
Two) (the “RA”); and “Failure to
Train” (Count Three). Against Edwards, the First
Amended Complaint alleges a claim for “Wrongful
Death.” (Count Five).
case comes before the Court on the Motions To Dismiss filed
by Officer Edwards (doc. 30) and the City (doc.
Each motion is filed pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. For the reasons stated herein
Officer Edwards's motion will be DENIED, and the
City's motion will be GRANTED in part and DENIED in part.
the Federal Rules of Civil Procedure require only that the
complaint provide “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a). However, to survive a motion to dismiss
brought under Rule 12(b)(6), a complaint must “state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)
has facial plausibility “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556)
(“Iqbal”). That is, the complaint must
include enough facts “to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555 (citation and footnote omitted). Pleadings that contain
nothing more than “a formulaic recitation of the
elements of a cause of action” do not meet Rule 8
standards, nor do pleadings suffice that are based merely
upon “labels or conclusions” or “naked
assertion[s]” without supporting factual allegations.
Id. at 555, 557 (citation omitted).
claim has been stated adequately, however, “it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Id. at 563
(citation omitted). Further, when ruling on a motion to
dismiss, a court must “take the factual allegations in
the complaint as true and construe them in the light most
favorable to the plaintiff.” Pielage v.
McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) (citing
Glover v. Liggett Group, Inc., 459 F.3d 1304, 1308
(11th Cir. 2006)).
ALLEGATIONS IN THE FIRST AMENDED COMPLAINT
First Amended Complaint sets out the following:
11. David McBrayer's mental problems became known to the
[Jacksonville Police Department (“JPD”)] on
Saturday, November 8, 2014. On that date, at 5:44 am, David
tried to break into the local Dollar General Store. Within
the hour, JPD officers . . . confronted him in the
store's parking lot in his pajamas and in possession of a
hammer. He was arrested for disorderly conduct and held in
the Jacksonville City Jail.
12. On Monday, November 10, 2014, an official of the JPD
telephoned David's father, David Bradford McBrayer
(“Bradford McBrayer”), on his cellphone at work
in Atlanta, Georgia. The JPD official stated to Bradford
McBrayer that David had a mental problem and needed help. . .
. According to the official, JPD had contacted the Calhoun
County Health Officer to no avail. The JPD was concerned
about releasing David McBrayer on his own; and asked Bradford
McBrayer to come to Jacksonville and get medical care for his
13. Bradford McBrayer left his home in Atlanta and came to
Jacksonville on the same evening on which he received the JPD
call. At the Jacksonville City jail, he signed the release
papers and picked up his son at approximately 11:00 pm. The
releasing officer told Bradford McBrayer that his son needed
medical care and should be taken for medical care as soon as
possible. Bradford McBrayer talked with his son and took his
son to the apartment in Jacksonville. But David would not
allow his father to enter the apartment. Instead, Bradford
McBrayer spent the night at a local motel.
14. On Tuesday, November 11, 2014, Bradford McBrayer saw his
son a few times during the day. Just before lunch, David
McBrayer said to his father: “I feel threatened by
you.” As a result of those short interactions, Bradford
McBrayer concluded that his son did indeed have a serious
mental problem. He returned to the JPD that afternoon and
asked for its assistance in persuading David to get his [sic]
the car so that his father could take him home for medical
treatment. An official of the JPD gave Bradford McBrayer a
number to call when he was ready to leave.
15. Bradford McBrayer last saw his son thorough [sic] the
apartment window around 8:30 pm on November 11, 2014, inside
the apartment playing video games. Bradford McBrayer went
back to his motel room for the evening, hoping to get medical
assistance for his mentally troubled son the following day.
16. Around 9:00pm that night, David McBrayer left his
apartment. He bought a pizza, and purchased toys, drinks,
candy, and a box cutter from the local Walmart [sic] store.
17. At approximately 10:20 pm on November 11, 2014, someone
fired several shots through a car window with a BB gun at the
Coliseum Apartments. The owner of the car contacted the JPD.
18. Three JPD Officers, including Defendant Dale Murphy
Edwards, arrived at David's apartment shortly thereafter.
Two of the officers approached the front of the apartment,
and the third officer approached the rear.
19. When an officer knocked on his front door, David then ran
out of the rear of the apartment. He ran to his car and
picked up the box cutter. As the [sic] he walked away from
the car, the officers surrounded him. David kept yelling,
“I feel threatened by you.” The officers yelled
at him several times to put down “the knife.”
David did not immediately drop the box cutter.
20. Within a minute of having commanded David to drop
“the knife, ” Defendant Dale Murphy Edwards fired
five rapid rounds of bullets into David's chest and
torso, killing him instantly.
21. Defendant Edwards fatally shot David McBrayer in the
medial left chest, in the left chest through the left nipple,
in the left lateral chest, and in the left mid to upper back.
Each of these was [a] penetrating gunshot wound.
22. Defendant Edwards was acting pursuant to JPD policy on
November 14, 2014, when he used deadly force on David
23. Standard police department policy is to use deadly force
only where a suspected person poses a significant threat of
death or serious bodily injury to the officer or others.
24. Defendant Edwards and the other JPD officers knew that
David was mentally disturbed when they approached him on the
night of November 11, 2014; and that he did not pose a
significant threat of death or serious bodily injury to them
25. The JPD has no written policies on the handling of
mentally disabled citizens during an investigation or arrest.
26. The JPD has by custom and practice adopted a policy known
as “the 21-Foot Rule.” Under this Rule, whenever
a policeman is within twenty-one (21) feet of a person
carrying a knife, the policeman is authorized to use deadly
force. The policeman need not consider the totality of the
surrounding circumstances, the need for using deadly force,
the relationship between the need for using force and the
amount of force used, or alternatives such as pepper spray or
(Doc. 23 at 4-8, ¶¶11-26).
THE MOTION TO DISMISS FILED BY THE CITY (DOC. 32).
The Claims Against the City Are Not Barred by the
Applicable Statutes of Limitation
following claims are asserted against the City: violation of
the ADA (Count One); violation of the RA (Count Two); and
“Failure to Train” (Count Three). The parties
agree Ala. Code § 6-2-38(1) provides the applicable
two-year statute of limitations as to Counts One and Two.
See, Horsley v. Univ. of Alabama, 564
F.App'x 1006, 1008 (11th Cir. 2014) (“[For]
discrimination claims under Title II of the ADA and the [RA]
. . . the applicable limitations period is governed by the
most analogous state statute of limitations. In Alabama,
where this action was brought, the applicable limitations
period is two years.”) (citing Everett v. Cobb
Cnty. Sch. Dist., 138 F.3d 1407, 1409-10 (11th Cir.1998)
and Ala. Code § 6-2-38(1)); see also, doc. 33
at 7 and doc. 37 at 2.
Three asserts a claim pursuant to 42 U.S.C. § 1983 for
“failure to train.”“All constitutional claims
brought under § 1983 are tort actions, subject to the
statute of limitations governing personal injury actions in
the state where the § 1983 action has been brought.
McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir.
2008). In Alabama, the governing limitations period is two
years. McNair, 515 F.3d at 1173 (citing Ala.Code
§ 6-2-38; Jones v. Preuit & Mauldin, 876
F.2d 1480, 1483 (11th Cir.1989) (en banc)). Again, the
parties agree that Alabama's two year statute of
limitations is applicable. (Doc. 33 at 7; doc. 37 at 2).
is no dispute that McBrayer died on November 11, 2014, and
that this lawsuit was filed exactly two years later, on
November 11, 2016. While it would seem at first glance that
the claims against the City were timely filed, recall that
these federal claims borrowed Alabama statutes of
limitations. The City insists that this Court must
also borrow the Alabama rule that a case is not
“commenced” unless the Complaint is timely filed
along with the bona fide intention of having it
immediately served. See, Daniel v. Moye, No.
1140819, 2016 WL 6649138, at *15 (Ala. Nov. 10, 2016);
ENT Assocs. of Alabama, P.A. v. Hoke, No. 1141396,
2016 WL 4585742, at *6 (Ala. Sept. 2, 2016); Ex parte
Courtyard Citiflats, LLC, 191 So.3d 787, 797 (Ala. 2015)
(“We have explained that, in addition to being filed in
a timely manner, the filing of a complaint must be done in a
manner that demonstrates a bona fide intent, at the time of
filing, to proceed with this action.”) (internal
quotations and citations omitted) cert. denied sub nom.
Arrington v. Courtyard Citiflats, LLC, 136 S.Ct. 1194,
194 L.Ed.2d 204 (2016). The City insists that the Plaintiff
had no bona fide intent to immediately serve the Complaint
because: (1) after filing the Complaint, the Plaintiff
“failed for the next 77 days to pay the required filing
fee and ask this Court to issue summonses for her to
serve on [the City] and the other defendants;” (doc. 41
at 2) and (2) after paying the required filing fee and asking
for and obtaining the required Court-issued summonses, the
Plaintiff did not perfect service on the City until February
28, 2017-109 days after filing the Complaint.
Plaintiff ignores the City's allegations regarding when
it paid the filing fee, asked for summonses, and served the
Complaint. Instead, the Plaintiff writes:
This is a federal case, filed in federal district court, not
a case filed in the Circuit Court of Calhoun County, Alabama.
As a result, the Federal Rules of Civil Procedure
indisputably apply with full force. That bedrock principle
was established nearly three-quarters of a century ago in the
landmark case, Hickman v. Taylor, 329 U.S. 495, 67
S.Ct. 385 (1947).
The City's argument about conflating requirements of
service with requirements of commencing the lawsuit, (Doc. 33
at 7), is unavailing. Rule 3 of the Federal Rules of Civil
Procedure is rather simple and straightforward. Entitled
“Commencing an Action, ” it plainly states:
“A civil action is commenced by filing a
complaint with the court.” (Emphasis added). Therefore,
under Fed.R.Civ.P. 3, the lawsuit against the City was timely
filed and commenced.
Regarding service, Fed.R.Civ.P. 4(m) provides a “Time
Limit for Service.” It states that, “If a
defendant is not served within 90 days after the complaint is
filed, the court-on motion or on its own after notice to the
plaintiff-must dismiss the action without prejudice against
that defendant or order that service be made within a
specified time.” Although the City disputes that it was
served within 90 days, its argument fails regardless because
the Uniform Initial Order issued by the Court in this case
states the following in Section I. E.:
Any defendant who has not been served with a summons and
complaint within 120 days after the filing of the complaint
(or within 120 days after the party was added to the action)
may be dismissed without further order of the court
unless prior to such time the party on whose behalf such
service is required shows good cause why service has not been
Doc. 2 at 5 (emphasis in original).
A plain reading of the Court's Order conclusively
establishes that Plaintiff had 120 days from the date of
filing the original Complaint within which to serve the City
with a summons and complaint, and Plaintiff complied. (Doc.
18). Therefore, the myriad of Alabama cases cited by Edwards
[sic] in support of his motion is indubitably
inapposite and must be disregarded.
Likewise, the “tolling” argument of Edwards [sic]
is similarly inapt and is nothing more than a straw person.
The concept widely misses the mark, since the Complaint was
filed on precisely the second anniversary of the death of
Plaintiff's intestate, David McBrayer. Plaintiff
satisfied all federal rules and standards applicable to an
action filed in this Court.
In sum, neither the Federal Rules of Civil Procedure nor the
Uniform Initial Order leaves room for ambiguity about
bona fide intent or other inapt standards advanced
by the City. Plaintiff commenced the lawsuit within the
period of limitations and served Defendant City of
Jacksonville with the ...