United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS United States District Judge
a civil action filed by the Plaintiff, Moses Stryker, against
the following Defendants: the City of Homewood, Alabama
(“the City”) and Officers Jason Davis, Brian
Waid, and Frederick Blake. The individual Defendants are
police officers with the City,  and are all sued in their
individual capacities only. The Plaintiff alleges that the
officers used excessive and unnecessary force in arresting
the Plaintiff. Against the City and the individual
Defendants, the Plaintiff sets out claims pursuant to 42
U.S.C. § 1983. (Counts One and Two). Against the
individual Defendants, the Complaint also sets out Alabama
state law claims of assault and battery (Count Three),
negligence (Count Four), and wantonness (Count
matter comes before the Court on the Motions To Dismiss filed
by the City (doc. 40) and Officers Waid and Blake. (Doc. 44).
For the reasons stated herein, the motions will be GRANTED IN
PART and otherwise will be DENIED.
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 AMENDED COMPLAINT
following allegations, to the extent pertinent to the instant
motions, appear in the Amended Complaint:
11. At approximately 2 a.m. on May 23, 2014, Plaintiff and
Musie Ibedingl, a truck driver Stryker was training for his
employer, Swift Transportation, were making a delivery of
goods to the Walmart Supercenter located in the Wildwood
Shopping Center on Lakeshore Parkway in Birmingham, Alabama.
12. Stryker and Musie Ibendigl were in Stryker's 18-wheel
13. As they arrived at Wal-Mart, Ibedingl was driving.
14. Stryker switched places with Ibendigl in the Wal-Mart
parking lot when it became apparent that Ibedingl could not
maneuver the truck in the manner necessary to arrive at the
15. A woman, Tammy Barnette, stopped her car in front of the
truck and blocked its path.
16. Barnette refused to move out of the way and told Stryker
that his truck had side-swiped her car and that she had
called the police.
17. Even though they were in the jurisdictional area for the
Birmingham police department, Homewood police officer Davis
arrived several minutes later.
18. Davis told Stryker to move his truck to the back of the
Wal-Mart lot which was well away from the lit area of the
parking lot. Stryker asked Davis if they could remain where
they were due to the lighting.
19. Davis became angry at Stryker for questioning his orders
so Stryker complied by moving his truck.
20. Davis, Stryker and Ibedingl conducted a walk-around
inspection of Stryker's truck and Davis commented that he
saw no evidence indicating that the truck had collided with
21. Davis told Stryker and Ibedingl to wait by the truck
until Birmingham police arrived since the alleged accident
occurred outside of Homewood's police jurisdiction.
22. Stryker retrieved a camera from an “accident
kit” in the truck provided by Swift Transportation,
Inc. (“Swift”), the company for whom he was
23. Swift's policy required that in the event of an
accident the driver use the kit's disposable camera to
photograph any visible damage to the other vehicle.
24. Stryker walked with the camera toward Barnette's car
to take a photographs of its condition.
25. Davis, who was outside of his police jurisdiction,
intercepted Stryker as he walked toward Barnette's car
and became irate when he saw the camera in Stryker's
26. When Stryker tried to explain to Davis that Swift policy
required him to photograph the alleged damage, Davis
threatened Moses that if Stryker said anything further Davis
would “lock [his] ass up.” 27. Davis shoved
Stryker in the back as Stryker turned to walk back toward his
28. Stryker put the camera in his pocket and Davis suddenly
drew his service revolver and pointed it directly at
Stryker's head and asked what Stryker was reaching for in
29. Stryker told Davis he was merely putting the camera in
his pocket and that he was going back to the truck as he was
30. Stryker asked Davis “Are you going to shoot
me?”, and Davis then put his gun away, pulled out his
taser and shot the taser leads into Stryker's back
delivering electrical current and shock to Stryker's
31. Stryker fell to the ground and the taser leads became
32. Stryker saw Davis reloading his Taser to shock Stryker
again, so in fear for his life, Stryker quickly crawled
toward his truck.
33. Stryker reached his truck and began to climb the steps to
the cab when Davis grabbed him from behind and attempted to
pull Stryker down the stairs to the ground.
34. Stryker continued to fear for his life and held on to the
35. Davis struck Stryker in the face and jaw multiple times
with a blunt instrument causing Stryker to suffer a broken
36. Stryker managed to climb into the truck and lock the cab
door and Ibedingl, who remained outside the truck all this
time, climbed into the passenger side and closed his door.
37. Stryker and Ibendigl intended to remain locked in the cab
for their safety until the arrival of the Birmingham police
who were allegedly on their way.
38. Davis broke the driver's side window of Stryker's
truck, showering Stryker's face and eyes with fragments
of shattered glass from the window.
39. Some debris from the window got in Stryker's eyes and
caused him to be unable to see.
40. Davis went to the passenger side and opened the unlocked
door of the cab and ordered Ibendigl out of the truck.
41. Davis entered the passenger side of the truck and resumed
his attempts to try to remove Stryker from the vehicle.
42. Davis sprayed pepper spray into Stryker's eyes and
struck Stryker about his body.
43. Defendants Waid and Blake arrived shortly after Davis
began his attempts to remove Stryker from the passenger side.
44. Defendants Davis, Waid and Blake all participated in
dragging Stryker, who was still blinded by the glass debris
and pepper spray in his eyes, from the cab of the truck.
45. Davis, Waid and Blake got Stryker to the ground and
struck Stryker numerous times.
46. Stryker repeatedly yelled “I can't see”
as Davis, Waid and Blake kicked and punched Stryker multiple
times all over his head and upper extremity and stomped on
his back causing injuries to Stryker's spine.
47. Stryker was ultimately handcuffed and dragged across the
pavement until he was ultimately placed in a patrol car.
48. Stryker was transported by one of the Homewood police
officers to UAB Hospital for medical treatment.
49. At [the] UAB hospital emergency room[, ] staff removed
pieces of glass from [Stryker's] face and eyes and
confirmed that Stryker's mandible was badly broken and
required emergency surgery.
50. Stryker's facial injuries required that he undergo
surgery to his jaw and his doctors wired his jaw shut for
approximately eight weeks in order to allow it to heal.
51. Stryker suffered injuries to his lower back and underwent
multiple pain blocks and a surgical procedure in attempts to
relieve his pain.
52. Due to his injuries, Stryker has not been able to return
to his job as a truck driver and will not be able to return
to work again due to the permanent nature of his back
* * *
54. Stryker did not resist any attempts by Davis to arrest
him before he was shoved, tased and beaten, and Stryker never
threatened Davis or any other person with any harm.
* * *
59. The Individual Defendants, including Davis, struck
Stryker in the head with their fists and with blunt
instruments numerous times . . ..
(Doc. 39 at 3-8, ¶¶11-59).
The Motion To Dismiss Filed by the City (Doc.
Specific Claim Against the City
only claim against the City appears in Count Two, which
alleges, inter alia, that “the City permitted,
ratified and authorized a policy, custom and practice that
permitted the illegal use of excessive force.” (Doc. 39
at 15, ¶89). The basis for this allegation is that the
City failed to properly train and supervise its officers on
the proper use of force in an arrest. (See doc. 39
at 15 (discussing the City's “years long practice
of ignoring the inordinate volume of excessive force reports;
refusing to investigate complaints of excessive force;
refusing to require additional training to officers known to
use unreasonable force; refusing to monitor and supervise
problem officers; and refusing to discipline officers known
to illegally use excessive force.”). The City argues
that this count fails to state a claim upon ...