United States District Court, M.D. Alabama, Northern Division
CHARLES L. BURTON, JR., Plaintiff,
JEFFERSON DUNN, Commissioner, Alabama Department of Corrections, Defendant.
MEMORANDUM OPINION AND ORDER
C. MARKS CHIEF UNITED STATES DISTRICT JUDGE.
April 4, 2019, Charles L. Burton, Jr. (“Burton”),
a death row inmate, filed a complaint challenging the Alabama
Department of Corrections' policy of prohibiting the
presence of his religious advisor during his anticipated
execution. Specifically, he asserts that the disallowance of
an imam in the execution chamber is violative of the
Religious Land Use and Institutionalized Persons Act of 2000
(“RLUIPA”), 42 U.S.C. § 2000cc et
seq; the Alabama Religious Freedom Amendment
(“ARFA”), Ala. Const. Art I, § 3.01; and the
First Amendment to the United States
Constitution. Burton names Jefferson Dunn, the
Commissioner of the Alabama Department of Corrections, as a
April 26, 2019, the Defendant filed a document styled as
“Defendant's Answer and Motion to Dismiss.”
(Doc. 22). The Defendant, however, did not specify the
Federal Rule of Civil Procedure under which he moved to
dismiss. In the document, the Defendant merely asserts in the
“Response to the Prayer for Relief” that
“Burton's rights under RLUIPA, ARFA, and the First
Amendment will not be violated during his execution”
and “asks that this matter be dismissed.” (Doc.
22 at 18). There are scant references to non-controlling
cases within the document. For example, in a footnote, the
Defendant cites two cases from another circuit court,
Jackson v. Danberg, 594 F.3d 210, 230 (3d Cir.
2010), and state court, Thompson v. Dep't of
Corrs., 18 P.3d 1198, 1208 (Cal.App. 2001). (Doc. 22 at
10 n.8). Under the “Response for Prayer for Relief,
” the Defendant refers to Justice Kavanaugh's
concurrence in Murphy v. Collier, __ U.S. __,, 139
S.Ct. 1475, 1475-76 (2019). (Doc. 22 at 18). The document
itself, however, contains no briefing in support of
dismissal. Additionally, under the heading “Defenses,
” the Defendant states that “[t]his action fails
to state a claim for relief as a matter of law.” (Doc.
22 at 19).
Rule of Civil Procedure 7(b)(1)(B) requires that “a
request for a court order must be made by motion. The motion
must … state with particularity the grounds for
seeking the order.” The Defendant's general request
to dismiss, embedded within the Answer, does not comply with
addition to lacking particularity, the motion to dismiss is
not timely. The “failure to state a claim upon which
relief can be granted” is both a basis for a motion and
a defense that must be asserted in a responsive pleading.
See Fed.R.Civ.P. 12(b)(6). Clearly, “[o]ne
does not sacrifice the defense available under Rule 12(b)(6)
by failing to raise it in a motion and, instead, asserting it
in an answer.” Canal Ins. Co. v. INA Trucking,
LLC, 2017 WL 1146984, at *8 (M.D. Ala. 2017)
(referencing Fed.R.Civ.P. 12(b)). However, “a
motion” asserting the defense of “failure to
state a claim upon which relief can be granted”
“must be made before pleading if a responsive pleading
is allowed.” Id. (citing Fed.R.Civ.P. 12(b)
and United States v. Alabama Dep't Mental Health,
Mental Retardation, 2010 WL 447399, at *4 (M.D. Ala.
2010), aff'd sub nom. United States v. Alabama
Dep't of Mental Health & Mental Retardation, 673
F.3d 1320 (11th Cir. 2012) (“Rule 12(b) requires a
defendant to make a motion pursuant to 12(b)(1) or 12(b)(6)
prior to filing a responsive pleading.”)). An answer is
a responsive pleading, and the Defendant filed one.
See Fed.R.Civ.P. 7(a)(2). When the Defendant filed
an answer and requested dismissal in the same document, he
necessarily failed to raise a Rule 12(b)(6) motion to dismiss
“before pleading.” Consequently, the motion to
dismiss is untimely. See, e.g., Leonard
v. Enter. Rent a Car, 279 F.3d 967, 971 n.6 (11th Cir.
2002) (“After answering the complaint, the defendants
filed Rule 12(b)(6) motions to dismiss the plaintiffs'
claims. Under Rule 12(b), these motions were a nullity; by
filing an answer, the defendants had eschewed the option of
asserting by motion that the complaint failed to state a
claim for relief.”).
reply, the Defendant acknowledges his error in filing a
simultaneous answer and motion to dismiss, but he requests
that this Court convert the motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6) into a motion for judgment on the
pleadings pursuant to Fed.R.Civ.P. 12(c). The Court
recognizes that there are circumstances in which a Rule
12(b)(6) motion may be construed as a Rule 12(c) motion.
See, e.g., Skrtich v. Thornton,
280 F.3d 1295, 1307 n.13 (11th Cir. 2002) (where the motion
to dismiss was filed three months after the answer, the Court
noted that a Rule 12(b)(6) motion may be construed
as 12(c) motion for judgment on the pleadings);
Whitehurst v. Wal-Mart Stores East, L.P., 329
Fed.Appx. 206 (11th Cir. 2008) (per curiam) (rejecting
plaintiff's argument that Rule 12(b)(6) motion was
untimely because court could construe the motion to dismiss
as a Rule 12(c) motion).
that the Defendant's motion to dismiss is not a separate,
fully briefed motion but was simply a request embedded within
the Answer, the Court is not inclined to construe the motion
to dismiss as a motion for a judgment on the pleadings.
See In re Hornsby, 2016 WL 5107057, at *1 n.2 (S.D.
Ga. Sept. 19, 2016) (determining a “hybrid
pleading-motion was procedurally improper” and
declining to construe the Rule 12(b)(6) motion to dismiss
which was “in effect a nullity” as a Rule 12(c)
motion for judgment on the pleadings under the circumstances
even if the Court were to convert the motion to dismiss for
failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) to
a motion for judgment on the pleadings pursuant to
Fed.R.Civ.P. 12(c), the Defendant has failed to support the
motion with sufficient legal analysis. The Defendant fully
briefed the issues for the first time in his reply brief.
“Arguments raised for the first time in a reply brief
are not properly before a reviewing court.” United
States v. Coy, 19 F.3d 629, 632 n.7 (11th Cir. 1994)
(citation omitted); see also United States v.
Whitesell, 314 F.3d 1251, 1256 (11th Cir. 2002),
cert. denied, 539 U.S. 951 . . . (2003);
United States v. Dicter, 198 F.3d 1284, 1289 (11th
Cir. 1999); United States v. Martinez, 83 F.3d 371,
377 n.6 (11th Cir. 1996).
Herring v. Secretary, Dep't of Corr., 397 F.3d
1338 (11th Cir. 2005) (§2254 death penalty case).
interests of justice are best served by denying the
Defendant's motion to dismiss without prejudice, as the
Defendant may be afforded the right to raise the defense
asserted in the Answer by an appropriate motion in the
future. See Canal, supra.
it is ORDERED that the Motion to ...