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Gunn v. City of Montgomery

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

April 11, 2018

NELLIE RUTH GUNN, individually and as Administratrix of the Estate of Gregory Gunn, Deceased, Plaintiff,



         On March 2, 2017, Defendant Aaron Cody Smith filed a motion to dismiss. (Doc. # 42.) On January 24, 2018, the Magistrate Judge filed a Recommendation that the motion be granted in part and denied in part. (Doc. # 55.) On February 7, 2018, objections were filed by Defendants City of Montgomery and Ernest N. Finley, Jr. (Doc. # 56), Defendant Smith (Doc. # 57), and Plaintiff Nellie Ruth Gunn (Doc. # 58). Upon an independent and de novo review[1] of those portions of the Recommendation to which objection is made, the Recommendation is due to be adopted. See 28 U.S.C. § 636(b).


         A. Rule 12(b)(1) Motion to Dismiss for Lack of Jurisdiction

         Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). This court is “‘empowered to hear only those cases within the judicial power of the United States as defined by Article III of the Constitution, ' and which have been entrusted to them by a jurisdictional grant authorized by Congress.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). Therefore, a federal court is obligated to inquire into subject matter jurisdiction sua sponte “at the earliest possible stage in the proceedings.” Id. at 410. “It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 511 U.S. at 377.

         A motion to dismiss for lack of Article III standing implicates the court's subject matter jurisdiction. Duty Free Ams., Inc. v. Estee Lauder Companies, Inc., 797 F.3d 1248, 1271 (11th Cir. 2015). Rule 12(b)(1) of the Federal Rules of Civil Procedure governs motions to dismiss for lack of subject matter jurisdiction. In this case, Defenant's Rule 12(b)(1) motion to dismiss for lack of jurisdiction presents a “facial attack” on the existence of subject matter jurisdiction. A “facial attack” on the complaint “require[s] the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). Thus, the standard of review for a facial jurisdictional challenge is functionally comparable to the standard of review applicable to Defendant's Rule 12(b)(6) motion to dismiss. See id. (“On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion.”).

         B. Rule 12(b)(6) Motion to Dismiss

         When evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must take the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. Resnick v. AvMed, Inc., 693 F.3d 1317, 1321-22 (11th Cir. 2012). To survive Rule 12(b)(6) scrutiny, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[F]acial plausibility” exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         II. FACTS[2]

         In the very early morning hours of February 25, 2016, Defendant Aaron Cody Smith, a white police officer for the City of Montgomery, Alabama, was working alone on patrol. He confronted Gregory Gunn, a 58-year-old African-American, as Mr. Gunn was walking home from a card game at a neighbor's house. Without any basis for reasonable suspicion that Mr. Gunn was involved in criminal activity, Smith approached Mr. Gunn and initiated a “stop and frisk.” Mr. Gunn was not armed, and Smith had no reason to believe he was armed.

         Before Smith completed the pat-down, 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 the 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 the Taser failed to stop Mr. Gunn's flight, Smith struck Mr. Gunn several times with an expandable metal baton. During the confrontation, Mr. Gunn made no oral threats or aggressive moves, and he never tried to reach for any of Smith's weapons. Nevertheless, 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. When he died, he was only steps away from the home he shared with his mother, Plaintiff Nellie Ruth Gunn.


         On July 8, 2016, Plaintiff filed this suit in her individual capacity and as administratrix of the estate of Gregory Gunn. She asserts claims under 42 U.S.C. § 1983 and state law. With respect to the § 1983 claims, Plaintiff seeks to recover personally for loss of companionship and support (Doc. # 1 at ¶¶ 131, 173, 189, 206, 227) and in her representative capacity for the death of her son.[3]

         On August 11, 2016, Defendants Finley[4] and City of Montgomery filed a motion to dismiss all Plaintiff's individual and representative-capacity claims. On March 2, 2017, the Magistrate Judge entered a Recommendation that the motion to dismiss be granted as to Plaintiff's individual-capacity § 1983 claims against Defendants Finley and City of Montgomery, and denied as to the remainder of her claims. (Doc. # 41 at 8.) On March 24, 2017, the court adopted the Recommendation of the Magistrate Judge. (Doc. # 47.)

         On March 2, 2017, Defendant Smith filed a motion to dismiss arguing (1) that Plaintiff lacks standing to sue in her individual capacity for injuries personal to her; (2) that Alabama's survivorship statute, Ala. Code 1975 § 6-5-462, bars survivorship of claims for damages (such as Mr. Gunn's pain and suffering) that arose prior to his death; (3) that state law immunity bars Plaintiff's state law negligence claim against Defendant Smith; and (4) that Plaintiff failed to allege facts sufficient to support her § 1983 claim for racial profiling in violation of the Equal Protection Clause of the Fourteenth Amendment. (Doc. # 42 at 3-11.)

         On January 24, 2018, the Magistrate Judge filed a Recommendation that Defendant Smith's motion be granted in part as to claims for damages Plaintiff alleges are personal to her, and that, in all other respects, the Defendant Smith's motion be denied. (Doc. # 55.) Plaintiff objects to the recommendation of dismissal of claims brought in her individual capacity, arguing that this court's March 24, 2017 Order, on which the Magistrate Judge relied in his January 24, 2018 Recommendation, was incorrect. (Doc. # 58.) Defendant Smith objects to the denial of the remainder of his motion (Doc. # 57), and Defendants Finley and City of Montgomery join his objections (Doc. # 56).


         A. Plaintiff's Objections

         Plaintiff objects to the Magistrate Judge's recommendation of her individual capacity § 1983 claims against Defendant Smith. As to those claims, Plaintiff contends that the killing of her son was the result of unconstitutional deprivations of equal protection and due process. As compensation for the lethal deprivation of her son's constitutional rights, Plaintiff seeks to recover compensatory damages for her own “severe emotional distress and mental anguish and other pain and suffering” caused by her son's death; “lost regular financial support that [her son] had provided her; and [the lost] society and companionship of her son, with whom she had resumed a close family unit for multiple years before his murder.” (Doc. # 1 at ¶¶ 131, 173, 189.) Citing Carringer v. Rodgers, 331 F.3d 844, 849 (11th Cir. 2003) and Brazier v. Cherry, 293 F.2d 401, 409 (5th Cir. 1961), [5] Plaintiff argues that § 1983 is deficient for failing to expressly provide for her, as a surviving family member, to recover in her individual capacity for damages she personally suffered as a result of the deprivation of her son's constitutional rights. While Plaintiff recognizes that state law generally fills the gap where §1983 is silent regarding remedies, [6] she says that the court should not look to state law to remedy the deficiency in this case because Alabama law's failure to recognize such claims[7] in the wrongful death context fails to fully effectuate the purposes of § 1983.

         In Carringer and Brazier, the court of appeals held that § 1983 is deficient in not providing for survivorship of a § 1983 claim for unconstitutional conduct that resulted in death and looked to state survivorship and wrongful death statutes to determine that a civil rights wrongful death claim survives. By order entered March 24, 2017 (Doc. # 47), this court previously held that Carringer and Brazier are distinguishable because they relate to the survivorship of a decedent's § 1983 action and the ability of the survivor to maintain a § 1983 cause of action for wrongful death, whereas this case involves a different question: whether a § 1983 wrongful death action allows recovery of compensatory damages for injuries personal to a parent of an adult child when that child is killed as a result of unconstitutional actions by state officers. In his January 24, 2018 Recommendation, the Magistrate Judge relied on the court's March 24, 2017 holding to recommend dismissal of Plaintiff's individual-capacity claims against Defendant Smith. Plaintiff objects to the Magistrate Judge's Recommendation on grounds that this court's March 24, 2017 holding was incorrect.

         In Brazier, the former Fifth Circuit addressed “whether death resulting from violation of the Civil Rights statutes give[s] rise to a federally enforceable claim for damages sustained by the victim [of a constitutional violation] during his lifetime, by his survivors, or both.” 293 F.2d at 402. Notably, however, Brazier did not address “damages to survivors” in the form of loss of consortium and the like. Rather, Brazier was concerned with who, if anyone, had the right to file a civil suit for damages caused to the person who was subject to a constitutional violation that resulted in injury, pain, suffering, and, eventually, death.[8] Specifically, the question before the court was whether (1) the decedent's claims for damages sustained during his lifetime survived his death; and (2) whether damages were recoverable for the decedent's death by unconstitutional means. Looking to state law to fill the gap in the federal statutory scheme, the appellate court noted that then-existing Georgia law provided two separate and distinct causes of action: “[o]ne . . . for survival of the decedent's cause of action; the other for injury inflicted on the survivor.” Id. at 407 n.15. Specifically, the Georgia statute that the appellate court described as “a cause of action for injury inflicted on the survivor” allowed recovery for “the full value of the life of the decedent.” Id. The appellate court's statement that “regard has to be taken of both classes of victims” must be considered in its full context, which is as follows:

Since Georgia now provides for both survival of the claim for damages sustained during his lifetime as well as for a right of recovery to his surviving widow and others for homicide, see note 15, supra [describing Georgia's two distinct causes of action], we need not differentiate between the two types of actions. To make the policy of the Civil Rights Statutes fully effectual, regard has to be taken of both classes of victims. Section 1988 declares that this need may be fulfilled if state law is available. Georgia has supplied the law.

Id. at 409 (emphasis added).

         Carringer likewise arose in Georgia. Carringer did not address whether the survivor/plaintiff, the decedent's mother, could recover damages personal to her, such as loss of consortium, that arose out of her son's wrongful death at the hands of his surviving spouse, who shot him with her police service revolver. Rather, Carringer concerned whether the mother, who was not the administratrix of her son's estate, had standing to bring a § 1983 wrongful death suit to recover “the full value of the death of the decedent” and “funeral, medical, and other necessary expenses resulting from the injury and death of the deceased.” Carringer, 331 F.3d at 845 and 846 n.1. The court held that, because Georgia law provided that a parent had standing to sue for wrongful death when the spouse was responsible for the death, the mother had standing to sue for the decedent's wrongful death under § 1983. Id. at 850. Thus, like Brazier, Carringer was concerned with who, if anyone, had the right to file a civil suit for damages caused to the person who was subject to the constitutional violation, not whether the survivor could sue for damages that she personally suffered incident to the infliction of a constitutional violation on her loved one. See id. at 847-48 (holding that, to answer the issue presented, which was whether the mother had a “right to bring a § 1983 action . . . for the wrongful death of her son”, the court “must answer two questions: (1) whether a decedent's § 1983 claim terminates upon his death; and (2) if not, where do we look to determine who may bring a § 1983 claim for the wrongful death of the decedent whose constitutional rights were violated” (emphasis added)).

         Thus, Brazier and Carringer concerned issues of survivorship, standing, and capacity to bring a § 1983 wrongful death suit (and, in Brazier, survival of the decedent's estate's claims for damages suffered in unconstitutional police beatings that took place in the days prior to his death). Both cases held that § 1983 protected the right of survivors, as a class of victims (and as defined by Georgia law), to maintain a cause of action “‘to recover for homicide.'” Carrringer, 331 F.3d at 849 (quoting Brazier, 293 F.2d at 409) (emphasis in Carringer). Brazier and Carringer do not, however, address the question presented here: whether the types of damages recoverable in such an action include damages suffered personally by the survivor as a result of the death of a loved one. Accordingly, despite Plaintiff's heavy reliance on language in Brazier and Carringer emphasizing that § 1983 requires that “‘regard has to be taken of both classes of victims'” (i.e., the decedent's estate, which may have claims for damages inflicted on the decedent prior to death, and the decedent's survivors, who may have claims for wrongful death), id. (quoting Brazier, 293 F.2d at 409), that language is not particularly useful in answering the question presented in this case. Alabama has no “classes of victims” in a wrongful death action, and in this context “survivor” is nowhere defined in Alabama law.

         Plaintiff cites Rhyne v. Henderson County, 973 F.2d 386 (5th Cir. 1992), for the proposition that Brazier entitles her to recover under § 1983 for injuries personal to her (such as loss of consortium) that were incidental to the constitutional violation inflicted on her son. Unfortunately for Plaintiff, Rhyne undercuts her argument and fully supports this court's previous holding that Plaintiff's loss-of-consortium damages are not allowed in the Eleventh Circuit, at least not in cases arising in Alabama.

         In Rhyne, the court held that a mother had standing to recover under § 1983 for “injury to herself caused by her son's death” from lack of medical care at a county jail. Id. at 392. The court premised its holding on two Fifth Circuit cases: Brazier and Grandstaff v. City of Borger, 767 F.2d 161, 172 (5th Cir. 1985). Unlike Brazier, Rhyne and Grandstaff are not binding precedent in this Circuit. See Bonner, 661 F.2d 1206 (adopting as binding precedent in the Eleventh Circuit all ...

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