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Gunn v. City of Montgomery

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

January 24, 2018

NELLIE RUTH GUNN, individually and as Administratrix of the Estate of GREGORY GUNN, deceased, Plaintiff,
CITY OF MONTGOMERY, ALABAMA, et al., Defendants.



         Before the court is the Motion to Dismiss (Doc. 20) filed by Defendant Aaron Cody Smith. Plaintiff has filed a response (Doc. 53) in opposition to the motion, and Defendant has filed a reply (Doc. 54). On August 10, 2016, the District Judge entered an Order (Doc. 19) referring this case to the undersigned Magistrate Judge “for consideration and disposition or recommendation on all pretrial matters as may be appropriate.” The motion is fully briefed and is ripe for recommendation to the District Judge. For the reasons that follow, the undersigned Magistrate Judge RECOMMENDS that Defendant's motion be granted-in-part and denied-in-part.

         I. BACKGROUND

         Plaintiff, suing in her individual capacity and in her capacity as the Administratrix of the Estate of Gregory Gunn, filed suit on July 8, 2016. See Compl. (Doc. 1). Plaintiff's complaint concerns the shooting death of her adult son, Gregory Gunn, by Defendant Smith, a City of Montgomery police officer. The Complaint alleges, in exacting detail, the events and circumstances leading up to Defendant's shooting of Mr. Gunn. See Compl. (Doc. 1) at ¶¶ 12-82. The undersigned previously summarized these allegations as follows:

Plaintiff alleges that Smith, on patrol alone in his vehicle in the very early morning hours of February 25, 2016, confronted Mr. Gunn during Mr. Gunn's walk home from a friend's house. Smith approached Mr. Gunn and initiated a “stop and frisk” of Mr. Gunn without any reasonable suspicion that Mr. Gunn was involved in criminal activity. Mr. Gunn was not armed and Smith had no reason to believe he was armed. During Smith's pat down of Mr. Gunn, 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 his 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 Smith's tasing of Mr. Gunn did not cause Mr. Gunn to stop fleeing, Smith next struck Mr. Gunn several times with an expandable metal baton. 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 in his next-door neighbor's front yard.

Doc. 41 at 2.

         Plaintiff alleges several federal constitutional and state law causes of action against Defendant Smith. Summarizing Plaintiff's claims, the Complaint alleges as follows: a) that Defendant “stopped and frisked” Mr. Gunn without any arguable reasonable suspicion that Mr. Gunn was involved in criminal activity and initiated his use of force against Mr. Gunn with no legal basis to do so, and that he escalated his use of force through the use of deadly force, all in violation of Mr. Gunn's Fourth Amendment rights (“Count I”); b) that, even if Defendant had arguable probable cause to arrest Mr. Gunn, his multiple uses of force against Mr. Gunn were not legally justified and were excessive, in violation of Mr. Gunn's Fourth Amendment rights (“Count II”); c) that Defendant's stop-and-frisk of Mr. Gunn, as well as his uses of force against Mr. Gunn, were the product of racial profiling and were racially motivated, in violation of Mr. Gunn's Fourteenth Amendment right to be free from intentional discrimination on the basis of his race (“Count III”); and d) with respect to Alabama law, Defendant wrongfully caused Mr. Gunn's death when he unlawfully stopped him and proceeded to employ the various levels of force, including lethal force, described in the Complaint (“Count VI”).


         Defendant moves to dismiss “Counts III and VI of Plaintiff's Complaint, any survivorship claims alleging conscious pain, emotional distress, mental anguish, or loss of consortium contained in Counts I and II, and any claims by Nellie Ruth Gunn for damages in her individual capacity.” Doc. 42 at 1. In short, Defendant argues that “Plaintiff has no standing to pursue any claims in this case solely in her individual capacity[, ]” that any “survivorship claims in the Complaint are similarly barred by Ala. Code § 6-5-462[, ]” that he is protected by statutory immunity with respect to Plaintiff's wrongful death claim under Alabama law, and that Plaintiff has failed to state any claim upon which relief could be granted for any claim of racial profiling or racially-motivated violence alleged in the Complaint. Doc. 42 at 2.


         The undersigned first addresses Defendant's argument that Plaintiff lacks standing to sue him in her individual capacity. Plaintiff explicitly “brings claims in her individual capacity for damages she sustained resulting from the death of her son, Gregory Z. Gunn[.]” Compl. (Doc. 1) at ¶ 6. In support, Plaintiff alleges as follows:

As a direct and proximate result of Defendant Smith's violations of Mr. Gunn's Fourth Amendment rights, Plaintiff Nellie Ruth Gunn individually has suffered severe emotional distress and mental anguish and other pain and suffering; lost regular financial support that the decedent, Gregory Gunn, had provided her; and lost the society and companionship of her son, with whom she had resumed a close family unit for multiple years before his murder, all of which suffering, injuries, and damages will in reasonable probability continue into the future and for the remainder of Plaintiff Gunn's life.

Compl. (Doc. 1) at ¶ 131; see also Id. at ¶¶ 173, 189. Plaintiff limits her individual capacity claims to her claims asserted under 42 U.S.C. § 1983. Id.

         The undersigned previously addressed the viability of Plaintiff's individual capacity § 1983 claims against co-Defendants Chief Ernest Finley and the City of Montgomery, concluding that she lacks standing to assert any individual capacity claims under § 1983 for her own injuries flowing from the violation of Mr. Gunn's Fourth Amendment rights, and recommending that such individual capacity claims be dismissed with prejudice. See Doc. 41 at 4-8. Plaintiff filed lengthy objections to the undersigned's Recommendation. See Doc. 44. Upon review, the District Judge determined that, despite Plaintiff's “artful pleading, ” Plaintiff's individual capacity claims are essentially “Fourteenth Amendment due process claim[s] for interruption of her own familial association rights” with her adult son and, consequently, because “‘a parent does not have a constitutional right of companionship with an adult child, '” she “cannot recover under § 1983 for injuries personal to her as a result of the death of her adult child.” Doc. 47 at 7-10 (quoting Robertson v. Hecksel, 420 F.3d 1254, 1262 (11th Cir. 2005)).

         For present purposes, the District Judge's previous ruling is dispositive of Defendant Smith's motion to dismiss Plaintiff's individual capacity claims against him, and the undersigned hereby adopts and incorporates the District Judge's previous findings and conclusions respecting Plaintiff's individual capacity claims in this Recommendation. Plaintiff acknowledges the District Judge's ruling, but argues, in a lengthy footnote spanning more than five pages of single-spaced text, that the District Judge erred because he viewed Plaintiff's claim as one alleging a violation of her own constitutional rights rather than one alleging injury flowing from the violation of her son's constitutional rights. Doc. 53 at 26 n.12. To the extent that Plaintiff ultimately seeks reconsideration of the District Judge's ruling on this issue, she may present her argument to the District Judge in timely objections to the instant Recommendation.

         For the reasons previously stated by the District Judge, see Doc. 47 at 3-10, Plaintiff may not recover in her individual capacity as the complaint alleges. Accordingly, Defendant Smith's motion to dismiss Plaintiff's individual capacity claims against him is due to be granted.


         As set forth above, Plaintiff has filed claims in her representative capacity under both § 1983 and Alabama's wrongful death statute. Defendant moves to dismiss all or parts of these claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the following theories: 1) that Alabama law precludes any “survivorship” claims brought pursuant to 42 U.S.C. § 1983; 2) that Defendant is immune from liability under Plaintiff's state-law wrongful death claim; and 3) that Plaintiff has failed to adequately state any claim of racial profiling or racially-motivated use of force for which relief could be granted. Doc. 42 at 6-11. Following a brief discussion of the standard of review applicable to a motion under Rule 12(b)(6), the undersigned will examine each of Defendant's arguments in turn.

         When ruling on a motion pursuant to Rule 12(b)(6), “the Court accepts the factual allegations in the complaint as true and construes them in the light most favorable to the plaintiff.” Speaker v. U.S. Dep't of Health & Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010). In order to state a claim upon which relief could be granted, a complaint must satisfy the pleading standard of Rule 8 of the Federal Rules of Civil Procedure.

         Rule 8 requires that a plaintiff submit a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In general, then, a pleading is insufficient if it offers only mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action[.]” Twombly, 550 U.S. at 555. See also Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (a complaint does not suffice under Rule 8(a) “if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'”). Thus, in order to survive Defendant's motion to dismiss, Plaintiff's complaint “‘must contain sufficient factual matter, accepted as true, to ‘state a claim for relief which is plausible on its face.'” Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1051 (11th Cir. 2015) (quoting Iqbal, 556 U.S. at 678). “A claim is factually plausible where the facts alleged permit the court to reasonably infer that the defendant's alleged misconduct was unlawful. Factual allegations that are ‘merely consistent with' a defendant's liability, however, are not facially plausible.” Id. (quoting Iqbal, 556 U.S. at 678).

         “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. If there are “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence” that supports the claims alleged in the complaint, then the claim is “plausible” and the motion to dismiss should be denied and discovery in support of the claims should commence. Twombly, 550 U.S. at 556. But, “Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79. Ultimately, in assessing the plausibility of a plaintiff's claims, the court is to avoid conflating the sufficiency analysis with a premature assessment of a plaintiff's likelihood of success because a well-pleaded claim shall ...

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