United States District Court, N.D. Alabama, Western Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE
case is before the court on Defendant Jeffery Holloway's
Motion to Dismiss (Doc. # 7) and Defendant Jon Mills'
Motion to Dismiss (Doc. # 12). The motions have been fully
briefed. (Docs. # 7, 10, 18, 20, 21). After careful review,
and for the reasons explained below, Plaintiff's claims
are due to be dismissed with prejudice.
14, 2015, Defendant Tuscaloosa County Deputy Sherriff Jeffery
Holloway (“Holloway”) returned to an apartment
complex to conduct a follow-up narcotics investigation. (Doc.
# 1 at p. 1). Holloway, Plaintiff, and Plaintiff's
unnamed cousin had a conversation about Holloway searching
the apartment of Plaintiff's cousin. (Id. at p.
2). Plaintiff's cousin refused to allow Holloway search
her home without a search warrant. (Id.). Plaintiff
alleges that, after Holloway became “irate” at
Plaintiff, Plaintiff rode his bicycle away from the apartment
to Plaintiff, while he was riding his bicycle, an unmarked
SUV driven by the West Alabama Narcotics Force drove
dangerously close to Plaintiff. (Id. at p. 3).
Plaintiff claims that Defendant Agent Jon Mills
(“Mills”), a law enforcement officer with the
West Alabama Narcotics Task Force, opened a door of the SUV
onto Plaintiff, causing Plaintiff to fall and sustain
injuries. (Id.). Following Plaintiff's fall,
Plaintiff alleges that Holloway tased Plaintiff.
18, 2017, Plaintiff filed a Complaint against Defendants
Holloway and Mills alleging claims under 42 U.S.C. §
1983. (Doc. # 1). Plaintiff served Defendants on August 21,
2017. (Docs. # 8, 9). On August 23, 2017,
Defendant Holloway filed a Motion to Dismiss, alleging that
(1) Plaintiff's Complaint is time-barred, (2) Defendant
Holloway is absolutely immune, and (3) Defendant Holloway is
entitled to qualified immunity. (Doc. # 7). On September 8,
2017, Defendant Mills filed a Motion to Dismiss, alleging
that (1) Plaintiff's Complaint is time-barred and (2)
Defendant Mills is entitled to qualified immunity. (Doc. #
12). Both Motions to Dismiss are based on Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). (Docs. # 7, 12).
September 22, 2017, Plaintiff filed a Response to
Defendants' Motions to Dismiss, claiming that
Plaintiff's counsel was precluded from timely filing the
Complaint because he experienced issues with the filing
system. (Doc. # 18 at p. 3-5). Specifically, Plaintiff's
counsel alleges that at 9:50 p.m. on Friday, July 14, 2017,
he attempted to file the Complaint through the CM/ECF filing
system; however, he could not successfully upload the
Complaint. (Doc. # 18-1 at p. 2). After additional attempts
to upload the pleading, Plaintiff's counsel asked a
friend to upload the Complaint; however, she also was
unsuccessful in doing so. (Id.). Plaintiff's
counsel continued to have technical difficulties filing the
Complaint throughout the weekend and, although he called the
Clerk of Court throughout the weekend, Plaintiff's
counsel was not able to contact the Clerk until Monday, July
17, 2017. (Id. at p. 2-3). Despite his conversation
with the Clerk on Monday, July 17, 2017, Plaintiff's
counsel's attempts to upload the Complaint electronically
that day were ineffective. Plaintiff's counsel did not file
the Complaint until Tuesday, July 18, 2017. (Id. at
3). This filing was done electronically. (Doc. # 1).
Response to the Motions to Dismiss, Plaintiff contends that
Defendant Holloway was on notice of Plaintiff's Complaint
before the statute of limitations elapsed because (1)
Plaintiff's counsel told Defendant Holloway he intended
to sue him after Plaintiff's acquittal of related
criminal charges in June 2017 and (2) Plaintiff's counsel
contacted Holloway's counsel on July 14, 2017 to notify
him that he was filing suit against Holloway. (Doc. # 18 at
p. 6). At a hearing held on November 15, 2017, Plaintiff
conceded that, unlike Defendant Holloway, Plaintiff did not
put Defendant Mills on notice of Plaintiff's intent to
file suit. Plaintiff has also indicated his intent to
amend the Complaint to include a malicious prosecution claim,
asserts Defendants are not entitled to immunity, and contends
the Complaint gives Defendants sufficient notice of
Plaintiff's claims. (Doc. # 18).
Holloway and Defendant Mills separately responded on
September 28, 2017 and September 29, 2017, respectively.
(Docs. # 20, 21). Upon Plaintiff's request (Docs. # 23,
24), the court held a hearing on Defendants' Motions to
Dismiss (Docs. # 7, 12) and allowed Plaintiff to further
explain why this action is not time-barred.
Standard of Review
Federal Rules of Civil Procedure require only that the
complaint provide “a short and plain statement of the
claim showing that the pleaser is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). However, the complaint must include
enough facts “to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). 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 and conclusions” or “naked
assertion[s]” without supporting factual allegations.
Twombly, 550 U.S. at 555, 557. In deciding a Rule
12(b)(6) motion to dismiss, courts view the allegations in
the complaint in the light most favorable to the non-moving
party. Watts v. Fla. Int'l. Univ., 495 F.3d
1289, 1295 (11th Cir. 2007).
survive a motion to dismiss, a complaint must “state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “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).
Although “[t]he plausibility standard is not akin to a
‘probability requirement, '” the complaint
must demonstrate “more than a sheer possibility that a
defendant has acted unlawfully.” Id. A
plausible claim for relief requires “enough fact[s] to
raise a reasonable expectation that discovery will reveal
evidence” to support the claim. Twombly, 550
U.S. at 556.
considering a motion to dismiss, a court should “1)
eliminate any allegations in the complaint that are merely
legal conclusions; and 2) where there are well-pleaded
factual allegations, ‘assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.'” Kivisto v. Miller, Candield,
Paddock & Stone, PLC, 413 Fed. App'x 136, 138
(11th Cir. 2011) (quoting Am. Dental Assn. v. Cigna
Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That task
is context specific and, to survive the motion, the
allegations must permit the court based on its
“judicial experience and common sense . . . to infer
more than the mere possibility of misconduct.”
Twombly, 550 U.S. at 556. Further, “courts may
infer from the factual allegations in the complaint
‘obvious alternative explanation[s], ' which
suggest lawful conduct rather than the unlawful conduct the
plaintiff would ask the court to infer.” Am.
Dental, 605 F.3d at 1290 (quoting Iqbal, 556
U.S. at 682). If the court determines that well-pleaded
facts, accepted as true, do not state a claim that is
plausible, the claims are due to be dismissed.
Twombly, 550 U.S. at 556.
statute of limitations defense is an affirmative defense, and
a plaintiff is not obligated to negate a timeliness defense
within the former corners of his complaint. La Grasta v.
First Union Securities, Inc., 358 F.3d 840, 845 (11th
Cir. 2004). “A Rule 12(b)(6) dismissal on statute of
limitations grounds is appropriate only if it is facially