United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE.
case is before the court on the Motions to Dismiss filed by
Defendants Warren Cotton, R.W. Carter, Rick Whitfield, and
William Dougherty, and by the City of Adamsville, Alabama.
(Docs. # 52 and 53). The parties have fully briefed the
Motions. (Docs. # 56 through 59). For the reasons explained
below, the Motions to Dismiss (Docs. # 52 and 53) are due to
is the Estate of Phillip James Binn (“the Estate”
or “Plaintiff”). The Estate brings this action by
and through its personal representative, Vivian Odom,
Binn's mother. (Doc. # 19, ¶23).
Cotton is the City of Adamsville's current Chief of
Police. (Doc. # 33-1 ¶1 and Doc. # 19 ¶3).
Defendant Carter was the Chief of Police at the time of
Binn's death. (Doc. # 19 ¶4). Defendant Whitfield is
currently an Adamsville police officer. (Doc. # 33-2 ¶1
and Doc. # 19 ¶5). Defendant Dougherty was previously an
Adamsville police officer, but is now retired. (Doc. # 33-3
¶1 and Doc. # 19 ¶6). Cotton, Carter, Whitfield,
and Dougherty (collectively the “Individual
Defendants”) are sued only in their individual
capacities. (Doc. # 19 at 1, ¶9). The City of Adamsville
is also named as a Defendant. (Doc. # 19 ¶2).
February 19, 2017, Adamsville received a 911 call from Jaamal
Thomas reporting that Binn had shot himself. (Doc. # 19 at
¶20). Binn, a former United States Army Ranger who had
served tours of duty in various war zones, was found deceased
inside his home in Adamsville, Alabama. (Id. at
¶¶15-16). Thomas was present at the time of
Binn's death. (Id. at ¶21). When first
responders arrived, Binn was found to have sustained a
gunshot wound to the back of his head. (Id. at
¶17). The bullet exited through the front of Binn's
head and through the roof of Binn's residence.
(Id. at ¶18). The bullet that killed Binn has
not been found. (Id. at ¶19).
body was found positioned with his head underneath a chair
and table in his residence. (Id. at ¶24). The
weapon that was allegedly used in Binn's death was found
several feet above and away from Binn's body on the
countertop of an island in Binn's residence.
(Id. at ¶25). The weapon was in a de-cocked
condition. (Id. at ¶26). A few hours after
Binn's death, Defendants concluded that Binn's death
was a suicide. (Id. at ¶31).
body was transported to the Jefferson County, Alabama
Coroner's Office, which examined his body.
(Id.at ¶¶27-28). The Jefferson County
Coroner noted that no gunshot residue was found on Binn's
hands or clothing. (Id. at ¶29). The Jefferson
County Coroner's Office ruled that Binn's death was a
suicide. (Id. at ¶33).
November 29, 2017, Plaintiff filed this action in federal
court. (Doc. # 1). Plaintiff sued Defendants Carter, Cotton,
Whitfield, and Dougherty in their individual capacities.
(Doc. # 1). However, the summonses to Defendants Cotton,
Whitfield, and Dougherty were not served on them personally.
(Docs. # 5, 6, and 8). Rather, each of the summonses was
served on Lynn Lindsey, whom the “Proof of
Service” indicates was only designated to accept
service on behalf of the “Adamsville PD.” (Docs.
# 5, 6, and 8). The Individual Defendants raised the issue of
improper service in their initial Motion to Dismiss. (Docs. #
12 and 13). In response to that and other Motions, on
February 9, 2018, Plaintiff filed an Amended Complaint. (Doc.
# 19). The court docket does not reveal any attempts by
Plaintiff to personally serve Defendants Cotton, Whitfield,
addition to Defendants Cotton, Whitfield, Dougherty, Carter,
and Adamsville, Plaintiff's Amended Complaint named
Fictitious Defendants A and B and Killer John Doe.
(Id.). On February 1, 2018, upon Defendants'
request, the court struck Fictitious Defendants A and B from
the record because fictitious party practice is generally not
permitted in a federal court. (Docs. # 35, 47); see
Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir.
2010) (“As a general matter, fictitious-party pleading
is not permitted in federal court.”). Similarly, the
claims against Killer John Doe, another fictitious party,
have been dismissed without prejudice. See
Richardson, 598 F.3d at 738.
Amended Complaint, Plaintiff alleges that the position of
Binn's body, the location of the gun, and the condition
of the gun are all inconsistent with suicide, the conclusion
reached by Defendants regarding the cause of death. (Doc. #
19 at ¶26). Plaintiff further alleges that Defendants
failed to conduct an investigation into Binn's death that
is consistent with the prevailing standards and practices
used by similarly situated law enforcement agencies.
(Id. at ¶30). Specifically, the Amended
Complaint alleges the following claims: that Plaintiff was
denied right of access to the courts in violation of 42
U.S.C. § 1983 (Count I); that Defendants were
responsible for a state-created danger in violation of 42
U.S.C. § 1983 (Count II); that Defendants Adamsville,
Carter, and Cotton failed to implement appropriate policies,
training methods, and practices in violation of 42 U.S.C.
§ 1983 (Count III); and that Defendants engaged in a
civil conspiracy that “violated Binn's civil
rights” (Count IV). (Doc. # 19). The Amended Complaint
also included a wrongful death claim (Count V) and a
negligence claim (Count VI) against Killer John Doe.
(Doc.19). The court previously dismissed the state-created
danger clam (Count II) for lack of standing, and the wrongful
death (Count V) and negligence claim (Count VI) against
Killer John Doe. (Id. at p. 17-18; Docs. # 48, 50).
have moved to dismiss Plaintiff's remaining claims.
(Docs. # 52, 53). The court addresses their motions below.
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
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.
qualified immunity defense can be reviewed at the Rule
12(b)(6) stage of litigation. Epps v. Watson, 492
F.3d 1240, 1243 (11th Cir. 2007). The Supreme Court has
recognized that a plaintiff must allege a “violation of
clearly established law” before he or she is entitled
to discovery from a defendant eligible for qualified
immunity. Mitchell v. Forsyth, 472 U.S. 511, 526
(1985). See also Williams v. Bd. of Regents of Univ. Sys.
of Ga., 477 F.3d 1282, 1300 (11th Cir. 2007) (“If
a defendant asserts a qualified immunity defense in a Rule
12(b)(6) motion to dismiss, the court should grant qualified
immunity if the plaintiff's complaint fails to allege a
violation of a clearly established constitutional or
noted above, the court has already dismissed certain claims
in this case. (Docs. # 48, 51). The remaining claims in this
case are the access to the courts claim against all
Defendants (Count I), the failure to train claim against
Adamsville, Carter and Cotton (Count III), and the conspiracy
claim against all Defendants (Count IV). These claims are
brought pursuant to 42 U.S.C. § 1983 and Alabama state
law. (Doc. # 19 at 4). To state a claim for relief under
§ 1983, Plaintiff “must allege the violation of a
right secured by the Constitution and laws of the United
States, and must show that the alleged deprivation was
committed by a person acting under color of state law.”
West v. Atkins, 487 U.S. 42, 48 (1988) (citations
omitted). “The traditional definition of acting under
color of state law requires that the defendant in a §
1983 action have exercised power ‘possessed by virtue
of state law and made possible only because the wrongdoer is
clothed with the authority of state law.'”
Id. (citations omitted).
doctrine of qualified immunity protects government officials
‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). Accordingly, “[a]t the motion to dismiss
stage in the litigation, ‘the qualified immunity
inquiry and the Rule 12(b)(6) standard become
intertwined.'” Keating v. City of Miami,
598 F.3d 753, 760 (11th Cir. 2010) (citation omitted).
“Because qualified immunity is ‘an immunity from
suit rather than a mere defense to liability ... it is
effectively lost if a case is erroneously permitted to go to
trial.'” Pearson, 555 U.S. at 231 (quoting
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985))
(changes in Pearson).
immunity “protects government officials performing
discretionary functions from the burdens of civil trials and
from liability.” Rioux v. City of Atlanta,
Ga., 520 F.3d 1269, 1282 (11th Cir. 2008) (internal
citations omitted). An official loses qualified immunity when
his conduct violates “clearly established statutory or
constitutional rights.” Hope v. Pelzer, 536
U.S. 730, 739 (2002). However, the standard is “broad
enough to cover some mistaken judgment, and it shields from
liability all but the plainly incompetent or those who
knowingly violate the law.” Garczynski v.
Bradshaw, 573 F.3d 1158, 1167 (11th Cir. 2009) (quoting
Montoute v. Carr, 144 F.3d 181, 184 (11th Cir.
defendant has the initial burden of proving that he was
acting within the scope of his discretionary authority in
order to be eligible for qualified immunity. Holloman ex
rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir.
2004) (citing Storck v. City of Coral Springs, 354
F.3d 1307, 1314 (2003)). Discretionary authority exists if a
defendant was (1) performing a legitimate job-related
function (2) through means within his power to utilize.
Holloman, 370 F.3d at 1266. In other words, a
“defendant must have been performing a function that,
but for the alleged constitutional infirmity, would have
fallen with his legitimate job description.”
defendant makes this initial showing, the burden shifts and
the plaintiff must demonstrate that the defendant is not
entitled to qualified immunity. Holloman, 370 F.3d
at 1264. Here, the Supreme Court has formulated a two-step
analysis to determine whether an official (such as the
Individual Defendants) is entitled to qualified immunity, and
a district court has discretion to determine in what order to
address the two steps. Keating, 598 F.3d at 762
(citing Pearson, 555 U.S. at 232, 236). The court
must decide whether the facts as alleged by Plaintiff
establishes a violation of a constitutional right.
Pearson, 555 U.S. at 232. The court also must decide
whether the right at issue was “clearly