United States District Court, M.D. Alabama
JAQUELINE MASSEY, as the administrator of the estate of Cameron Massey, Plaintiff,
v.
RALPH CONNOR, et al., Defendants.
ORDER
MYRON
H. THOMPSON UNITED STATES DISTRICT JUDGE
The
plaintiff, as an administrator, alleges that the then-chief
of the Eufaula Police Department and another officer shot and
killed her son, Cameron Massey, while he sat unarmed in the
passenger seat of a car during an otherwise uneventful
traffic stop. The amended complaint charges three counts: (1)
a constitutional claim under 42 U.S.C. § 1983 against
the police chief and officer; (2) a state wrongful-death
claim against the police chief, officer, and City of Eufaula,
Alabama; and (3) a state negligent-hiring claim against the
city. Now before the court is the magistrate judge's
recommendation to deny the city's motion to dismiss the
two counts against it.[*] After an independent and de
novo review of the record, and for the following
reasons, the court will reject the magistrate judge's
recommendation and dismiss the counts against the city.
I.
DISCUSSION
A.
Count Two: Wrongful-Death Claim
Because
the plaintiff abandoned her claim against the city under
Alabama's wrongful-death statute, 1975 Ala. Code §
6-5-410, it is due to be dismissed. Specifically, the
plaintiff stated in her response to the city's motion to
dismiss the amended complaint that she is “no longer
pursuing her claim of wrongful death against the City.”
Response to Motion to Dismiss (doc. no. 71) at 1. The only
reasonable interpretation of this statement is that it refers
to Count Two of the amended complaint, which reads
“COUNT TWO (STATE CLAIM) ALA. CODE § 6-5-410 -
WRONGFUL DEATH.” The plaintiff's abandonment of the
wrongful-death claim against the city results in its
dismissal.
B.
Count Three: Negligent-Hiring Claim
The
plaintiff charges that the city is liable under 1975 Ala.
Code § 11-47-190 for negligently hiring the police chief
and officer defendants. The city makes several arguments why,
contrary to the magistrate judge's recommendation, the
negligent-hiring claim should be dismissed. The court need
not reach all the city's arguments, because one of them
is sufficient to warrant dismissal: the factual allegations
in the amended complaint do not plausibly plead negligent
hiring.
“To
survive a Rule 12(b)(6) motion to dismiss, a complaint must
plead ‘enough facts to state a claim to relief that is
plausible on its face.'” Michel v. NYP
Holdings, Inc., 816 F.3d 686, 694 (11th Cir. 2016)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “The allegations in the complaint
must be accepted as true and construed in the light most
favorable to the plaintiff.” Id.
Crucially,
however, the court need not accept as true “conclusory
allegations, unwarranted deductions of facts or legal
conclusions masquerading as facts.” Oxford Asset
Mgmt., Ltd., v. Jaharis, 297 F.3d. 1182, 1188
(11th Cir. 2002); see also Roberts v. State of Ala. Dept.
of Youth Servs., 2013 WL 4046383, at *2 (M.D. Ala. Aug.
9, 2013) (Thompson, J.) (“[G]eneralizations, conclusory
allegations, blanket statements, and implications will
not” allow the complaint to survive a motion to
dismiss). Conclusory allegations are those which express
“a factual inference without stating the underlying
facts on which the inference is based.”
Conclusory, Black's Law Dictionary (11th ed.
2019); see also Allstate Ins. Co. v. Advanced Health
Prof'ls, P.C., 256 F.R.D. 49, 61 (D. Conn. 2008)
(Alberton, J.) (“These allegations are
‘conclusory' because they ‘express[] a
factual inference without stating the underlying facts on
which the inference is based.'”).
Here,
the city contends that the plaintiff failed to allege,
plausibly, the knowledge requirement of the negligent-hiring
claim--namely, that the hiring officials “actually
knew, or should have discovered in the exercise of due
diligence, ” that the chief and officer defendants were
unfit for the job. Ford v. City of Goodwater, 2014
WL 37857, at *8 (M.D. Ala. Jan. 6, 2014) (Thompson, J.);
see also Shaw v. City of Selma, 241 F.Supp. 1253,
1281 n.32 (S.D. Ala. 2017) (Steele, J.) (“Under Alabama
law, a critical element of a claim of negligent hiring,
training and supervision is ‘proof of the
employer's actual or constructive awareness of the
employee's incompetency.”). As explained below, the
court agrees that the plaintiff did not adequately plead this
requirement.
The
plaintiff's allegations related to the knowledge
requirement are limited to the following: the police chief
“had a history of excessive force regarding the use of
firearms. In fact, one city official involved with hiring
[the chief] stated that had he known about [the chief's]
history, Eufaula would have never hired [him].” Am.
Compl. (doc. no. 62) at 14; see also Id. at 18-19.
Furthermore, had the city performed a basic background check
it would have known the police chief “was unfit and had
a propensity to use excessive deadly force.”
Id. at 15.
These
allegations are deficient. To start, that the police chief
“had a history of excessive force regarding the use of
firearms” is a conclusory allegation, and thus
insufficient to allow the complaint to survive a motion to
dismiss. Having “a history of” engaging in some
type of wrong is a “factual inference” that does
not state “the underlying facts on which the inference
is based, ” Conclusory, Black's Law
Dictionary, such as the specific occasions when Conner used
excessive force. When plaintiffs have alleged “a
history of” bad behavior, courts have repeatedly
described the allegation as “conclusory.” See
McMullan v. United States, 2017 WL 8220209, at *3 (6th
Cir. Dec. 13, 2017) (referring to the plaintiff's
“conclusory allegation” that “Scott had a
history of negative and harassing behavior”);
Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409,
1419 (9th Cir. 1988) (“[G]eneral and conclusory
allegations concerning the alleged discriminatory history of
AT & T fail to raise a material issue of fact.”);
Echols v. Bellsouth Telecomms., Inc., 385 Fed.Appx.
959, 961 n.2 (11th Cir. 2010) (unpublished)
(“Echols' conclusory assertion of a history of
biased decision-making is wholly without merit.”);
Gibson v. Verizon Servs. Org., Inc., 498 Fed.Appx.
391, 394 (5th Cir. 2012) (unpublished) (“Though she
alleges that Fettig had a history of bullying women in the
workplace, she provides nothing to support this conclusory
statement ... .”); Hernandez v. City of
Farmersville; 2010 WL 761202, at *5 (E.D. Cal. Mar. 3,
2010) (O'Neill, J.) (“The complaint makes vague,
conclusory allegations” of “knowledge of ‘a
history of abuse'”).
Also
conclusory is the allegation that, if the city conducted a
proper background check, it “would have known [the
police chief] was unfit and had a propensity to use excessive
deadly force.” Am. Compl. (doc. no. 62) at 15. This
allegation essentially recites the knowledge requirement for
a negligent-hiring claim, without stating the underlying
facts for the conclusion that the chief was
“unfit” and had a “propensity to use
excessive deadly force.” See Twombly, 550 U.S.
at 555 (explaining that “a formulaic recitation of the
elements of a cause of action will not” satisfy
pleading requirements).
The
bottom line is that the amended complaint is devoid of any
examples of incidents that would support the alleged factual
inferences that the chief was “unfit” and had a
“history of” and “propensity to use”
excessive force. See also Galloway v. City of Abbeville,
Ala., 871 F.Supp.2d 1298, 1310-11 (M.D. Ala. 2012)
(Fuller, J.) (dismissing municipal negligent-hiring claims
where amended complaint containing allegation that
“Babinski and Duhaime had prior incidents and
complaints of brutality ...