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Twomey v. Tuscaloosa County

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

May 30, 2019

JARED AUSTIN TWOMEY, Plaintiff,
v.
TUSCALOOSA COUNTY[1]; SHERIFF RON ABERNATHY, Individually; OFFICER TYLER WAID, Individually; CITY OF TUSCALOOSA, ALABAMA; OFFICER B.E.MARTIN, Individually, Defendants.

          MEMORANDUM OPINION

          T. MICHAEL PUTNAM UNITED STATES MAGISTRATE JUDGE

         This case is before the court on motions to dismissed filed by defendants Sheriff Ron Abernathy (“Abernathy”), the City of Tuscaloosa (“City”), and Officer B.E. Martin (“Martin”). Filed February 28, 2019, Abernathy seeks dismissal of all the plaintiff's claims pursuant to Federal Rules of Civil Procedure 12(b)(6) and Rule 12(b)(1). (Doc. 42). Martin and the City allege that all of Plaintiff Jared Austin Twomey's (“Plaintiff” or “Twomey”) claims against them arising from his arrest and detention on October 23, 2016, are due to be dismissed on multiple grounds. (Doc. 43). The parties have consented to the exercise of jurisdiction by the undersigned magistrate pursuant to 28 U.S.C. § 636(c) (doc. 22); accordingly, the court enters this memorandum opinion.

         Standard of Review

         On a motion to dismiss, the court must accept as true all of the facts alleged in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-51, 173 L.Ed.2d 868 (2009). Federal Rule of Civil Procedure 8(a) requires only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Liberal notice pleading standards embodied in Rule 8(a) “do not require that a plaintiff specifically plead every element of a cause of action, ” Roe v. Aware Woman Center For Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001), or set out in precise detail the specific facts upon which he bases his claim. The complaint must only “contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Id. (quoting In re Plywood Antitrust Litigation, 655 F.2d 627, 641 (5th Cir. Unit A Sept. 8, 1981)).

         The Supreme Court clarified the threshold for a sufficient pleading in Bell Atlantic Corp. v. Twombly. 550 U.S. 544, 570, 127 S.Ct. 1955, 1965 (2007) (rejecting the standard from Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), that any “conceivable” set of facts supporting relief is sufficient to withstand a motion to dismiss). To show that “the pleader is entitled to relief, ” under Rule 8(a)(2), the complaint must allege facts that “plausibly” demonstrate a viable cause of action. The threshold of plausibility is met 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). To withstand scrutiny under Rule 12(b)(6) a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face, ” and that will thus “nudge [his] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. This requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. The Eleventh Circuit Court of Appeals has explained that the principles set forth in Twombly and Iqbal require the complaint to set forth sufficient facts that “raise a right to relief above the speculative level.” Speaker v. U.S. Dep't of Health and Human Servs. Centers for Disease Control and Prevention, 623 F.3d 1371, 1380 (11th Cir. 2010).

         Procedural History

         The plaintiff commenced this action on October 9, 2018. Since then he has amended his complaint twice. The operative complaint for the purpose of the instant motions to dismiss is his second amended complaint filed on February 8, 2019, against Sheriff Ron Abernathy, in his individual capacity, County Officer Tyler Waid (“Waid”), in his individual capacity, City of Tuscaloosa, Alabama, a municipal corporation, and City Officer B.E. Martin, in his individual capacity. (Doc. 39). Twomey's claims arise from alleged excessive force by Waid that occurred during or around the time of his processing into Tuscaloosa County Jail after he had been arrested for public intoxication by Martin. (Doc. 39). Twomey was arrested by Martin on October 23, 2016, for public intoxication. He was then transported to the Tuscaloosa County jail for processing, where he was handed off to Waid. Twomey claims that Waid shoved his head into a wall without provocation. Twomey was transported to the hospital, where he was treated for a concussion and a laceration, but he alleges his health issues persisted for some time.

         The Second Amended Complaint asserts claims of excessive force under 42 U.S.C. § 1983 and § 1985 and Alabama state law against all defendants, assault and battery against defendant Waid, negligence and/or wantonness against all defendants, negligent hiring, training, and supervision under a theory of Monell liability against defendant Abernathy and the City of Tuscaloosa, inadequate policy under a theory of Monell liability against defendant Abernathy and the City, and civil conspiracy. The complaint does not state which defendants the plaintiff alleges participated in the civil conspiracy, but the court construes that claim to be asserted against defendants Waid and Martin. The City and Martin filed the joint motion to dismiss on March 1, 2019. (Doc. 43).

         Claims Against Sheriff Ron Abernathy

         Twomey alleges that defendant Ron Abernathy acted under color of state law to deprive him of his constitutional rights by way of excessive force (Count One), negligence and/or wantonness (Count Three), negligent hiring, training, and supervision (Count Four), inadequate policy (Count Five), and civil conspiracy (Count Six).[2] Abernathy filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1), contending that Twomey has failed to state a claim as to Count One. (Doc. 42, p. 1) and that Count Five should be dismissed because plaintiff's “conclusory allegations are insufficient to support a cause of action for inadequate policy.” (Doc 42, p. 4). Finally, Sheriff Abernathy argues this court lacks subject-matter jurisdiction to consider Counts Three, Four, and Six. (Doc. 42, p. 3). The court will examine the arguments in turn.

         I. Count One-Excessive Force

         In light of the complaint, Count One asserts a plausible claim for excessive force pursuant to 42 U.S.C. § 1983. Supervisors, such as sheriffs, may be liable “only if they personally participated in the allegedly unconstitutional conduct or if there is ‘a causal connection between [their] actions . . . and the alleged constitutional violation.'” West v. Tillman, 496 F.3d 1321, 1328 (11th Cir. 2007). A causal connection is established three ways: 1) “a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so, ” 2) “when a supervisor's custom or policy . . . result[s] in deliberate indifference to constitutional rights, ” or 3) where “facts support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so.” Harper v. Lawrence Cty. Ala., 592 F.3d 1227, 1236 (11th Cir. 2010).

         With respect to Count One Twomey alleges that Abernathy “permitted, encouraged, and ratified a pattern and practice” of excessive force by failing to discipline or prosecute incidents of excessive force; failing to investigate incidents of excessive force; and actively participating in covering up prior excessive force incidents involving Officer Waid and others.[3] (Doc. 39, ¶ 42). While the reference to a “pattern and practice” is a legal conclusion, the remaining portions of the allegation are factual in nature. They allege that Abernathy “failed to discipline or prosecute” Waid and other (unnamed) jailors for “known incidents” of excessive force; “refused to investigate complaints of excessive force” by Waid and other (unnamed) jailors; and “actively participated in covering up prior acts of Waid and other (unnamed) jailors” by which arrestees were deprived of the right “to be free from excessive force.”[4] This allegation, if proven by the evidence, would tend to establish the required “causal connection” under Harper. See Harper, 592 F.3d at 1236. He has alleged that, at the time of his arrest, Sheriff Abernathy knew of prior instances when Waid and other unnamed officers used unnecessary force against arrestees, yet Abernathy failed or refused to investigate these instances or to discipline or prosecute Waid and the other officers engaged in misconduct. More so, he alleges that Abernathy actively assisted such officers in covering up instances of unnecessary force, thus encouraging them to continue to do so. Because the court is required to accept the factual allegations as true when evaluating a motion to dismiss, the allegations contained in the complaint, if proven, could plausibly result in Twomey obtaining a favorable legal outcome. See American Dental Assoc., 605 F.3d at 1290. Accordingly, the court finds that Twomey has nudged his claim over the line from conceivable to plausible. Twombly, 555 U.S. at 570. Sheriff Abernathy's motion to dismiss as to Count One is due to be denied.

         II. Count Five: Inadequate Policy

         Sheriff Abernathy argues that Count Five should be dismissed because Twomey fails to sufficiently plead a claim for inadequate policy. (Doc. 42, p. 4). Sheriffs may be held liable “due to the existence of an improper policy or [for] the absence of a policy, ” which is the cause of violations of constitutional rights. Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991). Liability also is possible where “the custom or policy established result[s] in deliberate indifference to constitutional rights.” Id. Where untrained employees are concerned, it is “‘ordinarily necessary' to demonstrate deliberate indifference.” Connick v. Thompson, 563 U.S. 51, 62 (2011). “Policymakers' ‘continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish . . . the ‘deliberate indifference'” required for liability. Id. Plaintiffs ordinarily need to show a pattern of similar constitutional violations to demonstrate the deliberate indifference of the supervisor. See id. A single incident is usually not sufficient to impose liability. See Craig v. Floyd County, Ga., 643 F.3d 1306, 1310 (11th Cir. 2011).

         In a case involving alleged deliberate indifference by a Sheriff's Office in Florida, the court of appeals wrote:

“[O]nly deprivations undertaken pursuant to governmental custom or policy may lead to the imposition of governmental liability.” And “an act performed pursuant to a custom that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.” Board of County Comm'rs v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 1388, 137 L.Ed.2d 626 (1997). Custom can also take the form of a “policy of inaction” when the municipality has notice that failing to discipline misconduct will cause constitutional violations, but that inaction must be “the functional equivalent of a decision by the [municipality] itself to violate the Constitution.” Connick v. Thompson, 563 U.S. 51, 61-62, 131 S.Ct. 1350, 1360, 179 L.Ed.2d 417 (2011) (quotation marks omitted). To establish the Sheriff's Office's liability, the plaintiffs must show that it acted with deliberate indifference, which is “a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Id. at 61, 131 S.Ct. at 1360 (quotation marks omitted).

Pellegrino v. Wengert, 703 Fed.Appx. 892, 895 (11th Cir. 2017) (internal citations omitted).

         To the extent that Twomey's complaint alleges that Sheriff Abernathy failed to establish adequate policies regarding the use of force in the jail, Twomey has alleged sufficient facts to satisfy Rule 8(a)(2). Although it is true that Twomey has not described the facts detailing the known prior instances of excessive force by Waid and others, he has alleged that, on multiple occasions, sheriff's deputies have engaged in excessive force (because they are hired without police academy training) and that, not only was Abernathy aware of these instances, he deliberately failed to take corrective action and, indeed, actively participates in covering them up. Specifically, Twomey alleges that the Abernathy permitted, encouraged, and ratified a pattern or practice of unjustified force against inmates known to him to be occurring. (Doc. 39, ¶ 83). Twomey also alleges that the Sheriff actively participated in a cover-up and failed to discipline his officers. (Doc. 39, ¶ 83). While Abernathy's failure to train jailors to the same level as deputy officers does not lead to a plausible inference of deliberate indifference, Twomey's allegations of a pattern or practice of “permitting, encouraging, and ratifying” known instances of excessive force meets the requirement that the municipal officer “disregarded a known or obvious consequence of his action.” Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct. 1350, 1360, 179 L.Ed.2d 417 (2011). In sum, at least for Rule 8(a) purposes, Twomey has sufficiently pleaded facts that meet the plausibility standard. Sheriff Abernathy's motion to dismiss as to Count Five is due to be denied.

         III. Counts Three, Four, and Six: State-Law Claims.

         Sheriff Abernathy argues that Counts Three, Four, and Six are by nature state-law claims and Alabama Sheriffs are absolutely immune from suits for damages based on state law. (Doc. 42, p. 3-4 (citing Ala. Const. of 1901, Art. V, § 112)).

         A. Count Three: Negligence

         Twomey concedes that plaintiff's claim of negligence is a state law claim and, therefore, is barred by absolute immunity. (Doc. 46, p. 4). Accordingly, defendant's motion to dismiss as to Count Three is due to be granted.

         B. Count Four: Negligent Hiring Training and Supervision

         Sheriff Abernathy's only argument for the dismissal of Count Four is that Twomey alleges a state law claim barred by absolute sovereign immunity. (Doc. 42, p. 3). To that end his motion is due to be denied because Twomey alleges Count Four as a federal claim under 42 U.S.C. § 1983. (Doc. 39, ¶ 70, 79). Paragraph 70 of the second amended complaint plainly alleges that Count Four alleges that Abernathy's failure to adequately hire, train, and supervise his employees resulted in the use of excessive force “in violation of the Fourteenth Amendment to the United States Constitution….” (Doc. 39, ¶ 70). Under § 1983, a Sheriff may be liable for hiring, training, or supervision where the omission amounts to deliberate indifference to the rights of prisoners with whom the sheriff's officers come into contact. Keith v. Dekalb County, 749 F.3d 1034, 1052 (11th Cir. 2014). “[A] plaintiff alleging a constitutional violation premised on a failure to train must demonstrate that the supervisor had ‘actual or constructive notice that a particular omission . . . causes [his or her] employees to violate citizens' constitutional rights,' and that . . . the supervisor chose to retain that training program.” Id. Here, Twomey has alleged that Abernathy is aware that Waid and others have violated the constitutional rights of arrestees not to be subjected to excessive force on multiple occasions and that Abernathy continues to retain his same training (or non-training) program. This plausibly alleges a constitutional claim for failure to hire or train against Abernathy.

         Count Four, being a federal-law claim, is not barred by the absolute immunity provided by Section 14 of the Alabama Constitution. While not in the heading to Count Four, Twomey alleges a violation of Fourteenth Amendment rights and demands relief in the form of “costs, interests and reasonable attorney's fees as provided under § 1983.” (Doc. 39, ¶ 79). Because a § 1983 federal cause of action exists for negligent hiring, training, or firing and Abernathy's motion to dismiss raises only the single argument that Count Four is barred by state-law sovereign immunity, the court finds that the motion to dismiss Count Four is due to be denied.

         C. Count Six: Civil Conspiracy

         Sheriff Abernathy's assertion that absolute immunity bars the claim of civil conspiracy misses the mark because Twomey pleads a federal claim under § 1985, not a state-law civil conspiracy. However, the motion to dismiss is still due to be granted because the Second Amended Complaint fails to state a claim against Abernathy. The court has a responsibility to dismiss sua sponte a plaintiff's claim where the complaint is filled with conclusory allegations that do not support an inference that the defendant violated the plaintiff's constitutional rights. Colburn v. Odom, 911 F.3d 1110, 1120 (11th Cir. 2018).

         To plead a conspiracy under Section 1985 brought pursuant to Section 1983 a plaintiff must show that the defendants denied him a constitutional right and that the defendants agreed to deny the plaintiff's rights. Hadley v. Gutierrez, 526 F.3d 1324, 1332-3 (11th Cir. 2008). The allegations of the complaint state that:

86. Officer Martin and Officer Waid acting in concert conspired to suppress the unwarranted and unlawful conduct of the Defendant Officers by falsifying the police report and proffering same to be used in a judicial tribunal. Said conspiracy was entered into with the specific interest to cover up the violation of the Plaintiff's civil rights in violation of the rights secured by Article IV's Privileges and Immunities Clause, First Amendment, Fifth Amendment, and Fourteenth Amendment.
87. This was not the first time Waid and other jailors have been involved in an excessive force incident resulting in injuries of an inmate, and the City and Ron Abernathy has a custom, practice and policy to hire citizens who have not graduated from the academy who have not been training in excessive force or the handling of intoxicated individuals, to be jailor, failed to discipline Waid thus encouraging further conduct, then took affirmative steps to cover up the violation of Twomey's and other's constitutional rights.

(Doc. 39). The factual allegations in the complaint refer to the conduct of Waid and Martin conspiring to cover up the alleged incident. This fails to plead the existence of a conspiracy to inflict excessive force on the plaintiff, pleading only that they conspired afterward to cover up the constitutional violation. However, pleading a claim of civil conspiracy requires first pleading a constitutional violation. The Eleventh Circuit has addressed this issue in detail in Hadley. 526 F.3d at 1332-3. Here, plaintiff has offered essentially a shotgun-pleading style ...


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