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Flood v. City of Jacksonville

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

July 12, 2017

SHIRLEY McBRAYER FLOOD, as Personal Representative of the Estate of DAVID DANIEL McBRAYER, deceased, Plaintiff,


          VIRGINIA EMERSON HOPKINS United States District Judge.

         This is 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).[1] Against Edwards, the First Amended Complaint alleges a claim for “Wrongful Death.” (Count Five)[2].

         This case comes before the Court on the Motions To Dismiss filed by Officer Edwards (doc. 30) and the City (doc. 32)[3]. 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.

         I. STANDARD

         Generally, 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) (“Twombly”).

         A claim 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).

         Once a 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)).


         The 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 son.
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 McBrayer.
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 or others.
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 tazers.

(Doc. 23 at 4-8, ¶¶11-26).


         A. The Claims Against the City Are Not Barred by the Applicable Statutes of Limitation

         The 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.

         Count Three asserts a claim pursuant to 42 U.S.C. § 1983 for “failure to train.”[4]“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).

         There 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.

         The 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 perfected.

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][5] 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 ...

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