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Allison v. The City of Birmingham

United States District Court, N.D. Alabama, Southern Division

May 2, 2019

MICHAEL ALLISON, et al., Plaintiffs,
v.
THE CITY OF BIRMINGHAM, Defendant.

          MEMORANDUM OPINION AND ORDER

          ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE

         This matter comes before the court on Defendant City of Birmingham's (“the City”) motion to dismiss the amended complaint. (Doc. 9). Plaintiffs Michael Allison and Adam McConnell, white police officers, allege that the City racially discriminated against them by removing them from their assigned beats and replacing them with African-American officers. They assert that the reassignment violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(m), and 42 U.S.C. § 1983. (Doc. 7).

         The City moves to dismiss the amended complaint for insufficient process or, in the alternative, to dismiss the § 1983 “claim” for failure to state a claim. The court DENIES the motion to dismiss the complaint for insufficient process because Plaintiffs served the complaint within the time limit mandated by the state court. The court DENIES the motion to dismiss the § 1983 “claim” because Plaintiffs have alleged sufficient facts to create an inference that the City had a policy or custom of permitting only African-American officers to patrol certain neighborhoods. However, the court exercises its inherent authority and ORDERS Plaintiffs to replead the amended complaint to clarify the cause of action asserted through § 1983, because the amended complaint does not identify the underlying cause of action.

         I. BACKGROUND AND PROCEDURAL HISTORY

         At this stage, the court must accept as true the factual allegations in the complaint and construe them in the light most favorable to the plaintiff. Butler v. Sheriff of Palm Beach Cty., 685 F.3d 1261, 1265 (11th Cir. 2012).

         Mr. McConnell and Mr. Allison, both white males, worked as police officers for the City. (Doc. 7 at 2 ¶¶ 2-3, 5). On June 9, 2017, Mr. Allison and another officer responded to a call about a disorderly person. (Id. at 2 ¶ 6). They arrested an African-American woman who screamed “racial slurs” and threatened them. (Id. at 2 ¶¶ 7-8). After her release the next day, she and her boyfriend went to a meeting with Plaintiffs' supervisors, during which “there was an incident with a handgun between her boyfriend and [another officer].” (Id. at 3 ¶¶ 10-11). Mr. McDonnell subdued “the suspect.” (Id. at 3 ¶ 12).

         The African-American woman then demanded that “all white people be removed” from policing her neighborhood. (Doc. 7 at 2-3 ¶¶ 9, 13). A lieutenant agreed with her and shortly thereafter, Plaintiffs and another white officer “were removed from their assigned beats and replaced by African-American officers.” (Id. at 3 ¶¶ 14-15). Plaintiffs allege, without further explanation, that “[t]hey are no longer white Field Training Officers due to these decisions.” (Id. at 3 ¶ 17).

         On August 1, 2018, Plaintiffs filed their complaint in the Circuit Court of Jefferson County, Alabama. (Doc. 1-1 at 3). On December 10, 2018, the state court entered an order allowing Plaintiffs forty-five days-or until January 24, 2019-to perfect service on the City. (Id. at 22). Plaintiffs served the City on January 23, 2019. (Id. at 41). The City then removed this case to federal court (doc. 1), after which Plaintiffs filed an amended complaint (doc. 7).

         II. DISCUSSION

         The City moves to dismiss the amended complaint for insufficient process, under Federal Rule of Civil Procedure 12(b)(4), [1] or in the alternative to dismiss the § 1983 “claim” for failure to state a claim, under Rule 12(b)(6). (Doc. 9). The court will address each of the arguments and explain why they do not warrant dismissal. The court will conclude by exercising its inherent authority to order repleader of the amended complaint.

         1. Timely Service

         The Eleventh Circuit has noted that, when a party challenges the sufficiency of pre-removal process, the federal court should “look[ ] to the state law governing process.” Usatorres v. Marina Mercante Nicaraguenses, S.A., 768 F.2d 1285, 1286 n.1 (11th Cir. 1985). Alabama Rule of Civil Procedure 4(b) provides that the plaintiff must serve the summons and complaint on a defendant “within 120 days after the filing of the complaint.” If the plaintiff fails to timely serve the summons and complaint, the court “may dismiss the action without prejudice as to the defendant upon whom service was not made or direct that service be effected within a specified time.” Id. (emphasis added).

         In this case, Plaintiffs did not serve the complaint on the City within 120 days after filing the complaint. But after the time to serve the complaint had passed, the state court ordered Plaintiffs to perfect service within forty-five days. (Doc. 1-1 at 22). Plaintiffs did so. (Id. at 41). Accordingly, under Alabama Rule of Civil Procedure 4(b), Plaintiffs timely served the City. The court DENIES the motion to dismiss the amended complaint for failure to timely perfect service.

         2.Failure to State ...


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