United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
case is before the court on Defendant's Motion to Dismiss
Plaintiff's Amended Complaint. (Doc. # 12). The parties
have fully briefed the Motion (see Docs. # 12,
15-16), and it is ripe for decision. After careful review,
and for the reasons explained below, Defendant's Motion
to Dismiss is due to be granted.
August 16, 2016, Plaintiff and Hoyt Lowe (“Hoyt”)
finalized their divorce. (Doc. # 11 at ¶ 8). Their
divorce agreement granted Hoyt sole and exclusive use and
occupancy of the marital residence. (Id. at ¶
8). Nevertheless, after an Alabama circuit court entered a
divorce judgment, Plaintiff and Hoyt entered into a verbal
agreement whereby “Plaintiff and their three children
were to stay at the marital residence until they were able to
find a place to live.” (Id. at ¶ 9).
According to the Amended Complaint, this agreement created a
tenancy at will between Plaintiff and Hoyt. (Id.).
evening of August 24, 2016, Hoyt called the police to his
residence. (Id. at ¶ 10). Defendant, a sergeant
with the Warrior Police Department, responded to the
“domestic call.” (See Id. at
¶¶ 6, 10-11). Hoyt insisted that Plaintiff and
their three children -- ages 2, 7, and 10 -- be removed from
the residence. (Id. at ¶ 10). Defendant
allegedly instructed Plaintiff to leave the residence or she
would be taken to jail. (Id. at ¶ 11). When
Plaintiff attempted to explain the situation and her oral
agreement with Hoyt, Defendant interrupted her and reiterated
that she would be taken to jail if she did not leave the
residence. (Id.). Defendant instructed Plaintiff to
gather her belongings and leave the residence. (Id.
at ¶ 12). Ultimately, Plaintiff left the residence with
her three children. (Id. at ¶ 13).
Standard of Review
Federal Rules of Civil Procedure require that a complaint
provide “a short and plain statement of the claim
showing that the pleader 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 Atl. 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.
Id. 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.
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, Canfield,
Paddock & Stone, PLC, 413 Fed.Appx. 136, 138 (11th
Cir. 2011) (quoting Am. Dental Ass'n 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.”
Iqbal, 556 U.S. at 679. If the court determines that
all of the 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 570.
Amended Complaint, Plaintiff raises one 42 U.S.C. § 1983
claim against Defendant in his individual and official
capacities. (Doc. # 11 at ¶¶ 14-18). Plaintiff
claims that Defendant deprived her of her due process rights
by removing her children and her from the residence despite
her valid oral lease. (Id. at ¶ 17). Defendant
argues that Plaintiff's procedural due process claim
fails as a matter of law because: (1) Plaintiff has not pled
a Monell policy or custom to justify an official
capacity claim; (2) Plaintiff had no property interest in the
residence under a tenancy at will; (3) Plaintiff could have
obtained an adequate post-deprivation remedy through a
wrongful eviction suit in Alabama state court; and (4)
Defendant is entitled to qualified immunity. The court begins
its analysis by discussing the official capacity claim
remaining in this action. Then, the court proceeds to address
whether Defendant is entitled to qualified immunity for the
procedural due process claim. Because the court concludes
that the claims against Defendant are due to be dismissed
based on those arguments, the court does not address
Defendant's other contentions.
Plaintiff's Official Capacity Claim is Due to be
has sued Defendant in his individual and official capacities.
(Doc. # 11 at p. 1). A suit against a municipal officer in
his official capacity is functionally equivalent to a suit
against the municipality itself. Snow ex rel. Snow v.
City of Citronelle, Ala., 420 F.3d 1262, 1270 (11th Cir.
2005). It is axiomatic that a municipality cannot be held
liable under § 1983 under a respondeat superior
theory. Id. Instead, to hold a municipality liable,
a plaintiff “must show: (1) that his constitutional
rights were violated; (2) that the municipality had a custom
or policy that constituted deliberate indifference to that
constitutional right; and (3) that the policy or custom
caused the constitutional violation.” McDowell v.
Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (citing
City of Canton, Ohio v. Harris, 489 U.S. 378, 388
(1989)). Here, Plaintiff's Amended Complaint contains no
factual allegations whatsoever to support the existence of a
municipal policy or custom that caused the alleged
constitutional violation. (See generally Doc. # 11).
Nor has Plaintiff argued in support of an official capacity
claim in her opposition brief. (See generally Doc. #
15). Accordingly, the court agrees with Defendant that any
official capacity § 1983 claim remaining in this action
is due to be dismissed.
Defendant is Entitled to Qualified Immunity with Regard to