Opinion
Civil Action Number 2:12-cv-01846-AKK
04-14-2014
JIMMY OLIVER and GLENDA HARRIS, Plaintiffs v. CITY OF BIRMINGHAM, et al., Defendants.
MEMORANDUM OPINION
Jimmy Oliver and Glenda Harris pursue this lawsuit against the City of Birmingham, A.C. Roper, individually and in his official capacity as Chief of Police, and Ivor J. Brooks, individually and in his official capacity as Chief of Birmingham Fire Rescue Services, and twenty-six John Doe Birmingham police officers and Fire and Rescue Services Department personnel. Harris alleges claims for illegal search, false arrest and imprisonment, and excessive force pursuant to 42 U.S.C. § 1983, and state law claims of assault and battery and false arrest and imprisonment. Doc. 1 at 11-14. Harris and Oliver allege state law claims of intentional infliction of emotional distress, respondeat superior against all of the named defendants and John Doe defendants W, X, Y, and Z, and an indemnification claim against the City of Birmingham. Id. at 16-17.
As a preliminary matter, Harris and Oliver's claims against numerous unnamed Birmingham police officers and fire personnel are due to be dismissed. The complaint alleges both § 1983 claims and state law claims against "JOHN DOE A thru JOHN DOE V," see id. at 11, 12, 13, whom the complaint identifies solely as the Birmingham police officers and Fire and Rescue Services personnel who came to Oliver and Harris' home on February 25, 2010, March 8, 2010, and April 4, 2010 and their supervisors, whose "actions proximately caused the violations of [Oliver and Harris'] rights" and "whose correct legal names are otherwise unknown but will be added by amendment when ascertained," id. at 9. Oliver and Harris never amended the complaint to name the John Does. In fact, the amended complaint they filed after the close of discovery—and which the court struck— does not contain the legal names of the unnamed police officers and fire department personnel. See doc. 38. While "[p]laintiffs, particularly when acting pro se, may sue 'John Doe' defendants under certain circumstances," Moulds v. Bullard, 345 F. App'x 387, 390 (11th Cir. 2009), where, as here, a plaintiff files a complaint that only vaguely describes the John Doe defendants, nothing in the record suggests that the plaintiff attempted to learn the John Doe defendants' identities and serve process on them, and the plaintiff fails to amend the complaint to contain the legal names of John Doe defendants, a district court at the summary judgment stage may exercise its power pursuant to Fed. R. Civ. P. 21 and drop a party sua sponte, see id. (affirming a district court order dismissing John Doe defendants under the circumstances described). The court does so here and will dismiss with prejudice the claims against the John Doe defendants.
As to the substance of their claims, Oliver and Harris, who were initially represented by counsel but now proceed pro se, claim that on April 4, 2010, members of the Birmingham Police Department and the Birmingham Fire Rescue Services Department "forced open [Oliver and Harris'] front door . . . pull[ed] . . . Harris out of bed, took her into custody back to the Ensley Pre[]cien[c]t office to sign a handwritten note stating she was not being held against her will in her own home, and brought her to the YMCA [sic] where she remained three days until she was allowed to make a call." Doc. 1 at 10. The named defendants move to dismiss Oliver and Harris' claims in their entirety, doc. 43, and the motion is fully briefed and ripe for review, docs. 43, 45, 46, 47, 48, and 49. Based on a review of the evidence and the law, the court finds that the motion is due to be granted as to the § 1983 claims because, at this stage in the proceedings, the complaint fails to state a claim upon which relief can be granted under 42 U.S.C. § 1983. Because the remaining claims relate solely to issues of Alabama statutory and common law, the court will remand them to the Circuit Court of Jefferson County Alabama. I. SUMMARY JUDGMENT STANDARD OF REVIEW
"'Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.'" Osahar v. Postmaster Gen. of U.S. Postal Serv., 263 F. App'x. 753, 761 (11th Cir. 2008) (quoting Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)). "However, in the context of summary judgment, even though pro se pleadings are entitled to a more lenient interpretation, 'the plaintiff must still meet the essential burden of establishing that there is a genuine issue as to a fact material to his case.'" Id. (quoting Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997)). "Furthermore, a pro se litigant 'is subject to the relevant law and rules of court including the Federal Rules of Civil Procedure.'" Blakely v. Johnston, Civil Action No. 10-0026-CG-N, 2010 WL 4269186, at *2 (S.D. Ala. Sept. 21, 2010) (quoting Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989)).
As a preliminary matter, the court notes that Oliver and Harris attempted to amend their complaint on November 20, 2013 to include incidents that allegedly occurred in June 2010 and July 2011. Doc. 38 at 3-4. Because the deadline for the plaintiffs to amend their complaint as a matter of course expired on June 13, 2012, the plaintiffs failed to seek permission to amend their complaint, and the discovery period closed on November 18, 2013, the court entered an order striking the amended complaint. See doc. 40. Oliver and Harris' claims remain governed by their original complaint, doc. 1 at 8-17, and the court will not consider any of the references to events alleged for the first time in the stricken complaint. In particular, there are numerous statements in Oliver and Harris' filings regarding an alleged incident that began when Harris called 911 and requested that the fire department turn off the water line to Oliver and Harris' home after a pipe burst. See e.g. doc. 43-1 at 45, 50 (Glenda Harris' deposition transcript); doc. 45 at 1, 3 (Oliver and Harris' opposition to the named defendants' motion for summary judgment); doc. 46 at 2 (Oliver and Harris' brief in opposition to the named defendants' motion for summary judgment); id. at 6-13 (Jimmy Oliver's deposition transcript); id. at 15-16 (Birmingham emergency services' Background Event Chronology from July 10, 2011); id. at Ex. B. (recording of telephone call from Harris to Birmingham emergency dispatchers requesting that the fire department turn off the water line to Oliver and Harris' home); doc. 47 at 1-2 (amendment to Oliver and Harris' opposition to the named defendants' motion for summary judgment); doc. 49 at 2-3 (Oliver and Harris' response in opposition to the named defendants' motion for summary judgment). The named defendants state that Harris made the telephone call regarding the water line on April 4, 2010. Doc. 43 at 17 (named defendants' motion for summary judgment stating that "[t]he City of Birmingham Fire and Rescue Service Department [was] also on the scene. Harris had called them because of a water leak"). The named defendants' statement is corroborated by firefighter Lloyd Rice, who testified that on April 4, 2010, he and two other firefighters were dispatched to Oliver and Harris' address and that "[t]he initial call concerned running water." Doc. 43-1 at 31 (affidavit of Lloyd Rice). Oliver and Harris contend, however, that the water line incident was separate from the April 4, 2010 incident, see e.g. doc. 46 at 2 (Oliver and Harris' brief in opposition to the named defendants' motion for summary judgment), and submitted records indicating that fire personnel responded to a "water problem" at Oliver and Harris' address on July 10, 2011, id. at 15-16 (Birmingham emergency services Background Event Chronology). While Oliver and Harris may in fact have a grievance against the defendants stemming from something that occurred on July 10, 2011, they cannot raise that grievance in this lawsuit because it is not alleged in their original complaint.
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." "Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (alteration in original). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to "go beyond the pleadings" to establish that there is a "genuine issue for trial." Id. at 324 (citation and internal quotation marks omitted). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual disputes will be resolved in the non-moving party's favor when sufficient competent evidence supports that party's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party's favor when that party's version of events is supported by insufficient evidence). However, "mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, "[a] mere 'scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252)). II. FACTUAL ALLEGATIONS
The following facts reflect an assessment of the record in the light most favorable to Oliver and Harris. On February 25, 2010, Birmingham police officers knocked on Oliver and Harris' front door, but left before Oliver and Harris could open it. Doc. 1 at 10. On March 8, 2010, officers came to Oliver and Harris' home and stated that they were responding to a report that a white female was being held there against her will. Id. They left after determining nothing was amiss. Id. On April 4, 2010, Harris placed a telephone call to the Birmingham Police Department's 911 dispatch and reported that Oliver had kidnapped her. See doc. 43-1 at 8 (recording of 911 call made by Glenda Harris); id. at 75-76 (Response to Request for Admission from Glenda Harris); id. at 72 (Birmingham emergency services Background Event Chronology indicating that dispatchers received a telephone call from Harris and noting that "COMP STS HER BOYFRIEND JIMMY OLIVER HAS BEAT HER UP & HOLDING HER....NEED OFC ASAP BEFORE HE COMES BACK). Harris suffers from schizophrenia, had not taken her medication, id. at 75-76 (Response to Request for Admission from Glenda Harris), and testified that when she placed the telephone call, "I was out of my mind. I had one of the episodes," id. at 47 (Glenda Harris' deposition transcript).
The named defendants submitted the recording to the court on a CD. The CD contains two separate 911 calls in which a woman who identifies herself as Harris claims that she is being held against her will by Oliver. Harris admits that she called 911 claiming that Oliver was holding her against her will on April 4, 2010 and June 28, 2011. Doc. 43-1 at 75-76 (Response to: Request for Admission from Glenda Harris). Additionally, the dispatcher who answered one of the calls on the CD (#8234) was the same dispatcher who logged Harris' call into Birmingham emergency services' event chronology system on April 4, 2010, id. at 72 (Birmingham emergency services Background Even Chronology).
Harris testified that when the police arrived, she was asleep, and awoke to find officers pointing guns and lasers at her. Id. at 49. The officers told Harris that "we had a call somebody broke in here." Id. Harris testified that the officers "picked me up by the hair and handcuffed me and took me to the car. . . . [and] put me in the backseat with handcuffs." Id. According to the complaint, the officers then took Harris to the Ensley Precinct, "to sign a handwritten note stating she was not being held against her will in her own home, [then] brought her to the YMCA [sic] where she remained [for] three days until she was allowed to make a call." Doc. 1 at 10. On April 3, 2012, Oliver and Harris commenced this action in the Circuit Court of Jefferson County, Alabama. Id. at 7. The named defendants removed it to this court on May 11, 2012. Id. at 3. III. ANALYSIS
The record indicates that the Birmingham Fire and Rescue Services also responded to Oliver and Harris' home and assisted the police with a forced entry. See doc. 43-1 at 31 (affidavit of Birmingham Fire and Rescue Services firefighter Lloyd Rice testifying that he and two other firefighters performed a forced entry at Oliver and Harris' home on April 4, 2010); Id. at 33-34 (Birmingham Fire and Rescue Services report prepared in conjunction with the incident).
Testimony by police and fire and rescue personnel is at odds with Harris' testimony. Birmingham Police Officer Stepfarne Gray testified that when he arrived at Oliver and Harris' home, he observed Harris behind a locked security door and a front door that was padlocked on the outside. Doc. 43-1 at 17 (affidavit of Stepfarne Gray). According to Gray, Harris told officers through the door that she was locked inside, and fire personnel performed a forced entry at her request. Id. at 18. Gray testified further that "[w]hen [] Harris was freed from the residence she came out of the house stating, 'hide me, do not let him get me,' and told officers that Oliver had hit her in the face with a fist and on her leg with a broomstick." Id. Gray testified that Harris voluntarily accompanied officers first to the West Precinct and then to the YWCA to be placed in a safehouse. Id. The named defendants submitted an affidavit sworn by Birmingham Fire and Rescue Services firefighter Lloyd Rice containing testimony that is consistent with Officer Gray's testimony. Id. at 31.
Harris' testimony is also at odds with the police report of the incident, which states that:
Officers were dispatched to 1300 Ave. S. Ensley on a domestic call. Upon arrival officers observed a female behind a locked screen door and a front door padlocked from the outside. [Harris] was stating from behind the doors that she cannot get out she is locked in. B-Ham Fire and Rescue Truck #16 came to the scene and opened the locked doors. The victim came out of the house stating "hide me, don't let him get me." The victim also stated she had to pry a locked door open in the house to get a phone to call the police. Victim stated the suspect hit her with a closed fist on the side of the face, breaking her glasses. Victim stated the suspect hit her on the leg with a broomstick. . . . [Harris] was taken to the precinct (West) then transported to the YWCA.
Harris alleges § 1983 claims of illegal search, false arrest and imprisonment, and excessive force and state law tort claims of assault and battery and false arrest and imprisonment. Harris and Oliver allege state law claims of intentional infliction of emotional distress, respondeat superior against the named defendants and John Doe defendants W, X, Y, and Z, and an indemnification claim against the City of Birmingham. Id. at 11-17. The court will address the federal law claims and state law claims in turn.
A. Harris' 42 U.S.C. § 1983 claims
Harris only alleges § 1983 claims in counts I-III against JOHN DOE A thru JOHN DOE V, not against the named defendants. In light of Harris' failure to ascertain the identities of these John Doe defendants, counts I-III are due to be dismissed with prejudice. See Moulds, 345 F. App'x at 390. In the alternative, although "the leniency afforded pro se litigants does not give the courts license to serve as de facto counsel or permit them to rewrite an otherwise deficient pleading in order to sustain an action," Hudson v. Middle Flint Behavioral Healthcare, 522 F. App'x 594, 596 (11th Cir. 2013) (citing GJR Inv., Inc. v. Cnty of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.1998)), were the court to construe Harris' § 1983 claims as brought against Chief Roper, Chief Brooks, and the City of Birmingham (against whom in count VII they allege a state claim for respondeat superior), the claims would still fail for failure to state a claim upon which relief can be granted, see Shivers v. Int'l Bhd. of Elec. Workers Local Union 359, 262 F. App'x 121, 129 (11th Cir. 2008) (affirming a district court's grant of a motion for summary judgment when a complaint failed to state a claim upon which relief can be granted).
1. No supervisor liability
Because there is no respondeat superior liability under § 1983, § 1983 liability against supervisors exists only under narrow circumstances:
See Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 691 (1978) (explaining that"a municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory") (emphasis in original); Braddy v. Fla Dep't. of Labor and Emp't Sec. 133 F.3d 797, 801 (11th Cir. 1998) (stating that "[f]or [a] supervisor[] to be liable under § 1983, her liability must be based on something more than the theory of respondeat superior" (citing Brown v. Crawford, 906 F.2d 667, 671 (11th Cir.1990); McLaughlin v. City of LaGrange, 662 F.2d 1385, 1388 (11th Cir.1981)).
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'It is well established in this circuit that supervisory officials are not liableDoe v. Sch. Bd. of Broward Cnty., Fla., 604 F.3d 1248, 1266 (11th Cir. 2010) (quoting Hartley v. Parnell, 193 F.3d 1263, 1268 (11th Cir.1999)). Harris does not allege in the complaint, and nothing in the record suggests that Chief Roper and Chief Brooks personally participated in any of the events described by Oliver and Harris. Likewise, Harris does not allege in the complaint and nothing in the record indicates the existence of the history of widespread abuse or deliberate indifference necessary to give rise to supervisor liability under § 1983. Consequently, Harris fails to state a claim for which relief can be granted under § 1983 against Chief Roper and Chief Brooks in their individual capacities, and, even if Harris had properly stated such a claim, there is no evidence in the record supporting it.
under § 1983 for the unconstitutional acts of their subordinates' unless the 'supervisor personally participates in the alleged constitutional violation' or 'there is a causal connection between actions of the supervising official and the alleged constitutional deprivation.' This requisite causal connection can be established in the following circumstances: (1) when 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' or (2) when a supervisor's 'improper custom or policy results in deliberate indifference to constitutional rights.' For a history of abuse to be sufficiently widespread to put a supervisor on notice, the abuse must be 'obvious, flagrant, rampant and of continued duration, rather than isolated occurrences.'
To the extend the complaint can be construed as alleging § 1983 claims against Chief Roper and Chief Brooks in their official capacity, such claims would fail as well. "[W]hen an officer is sued under Section 1983 in his or her official capacity, the suit is simply 'another way of pleading an action against an entity of which an officer is an agent.' Such suits against municipal officers are therefore, in actuality, suits directly against the city that the officer represents." Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (citing Kentucky v. Graham, 473 U.S. at 159, 165-66 (1985)). Consequently, § 1983 claims against Chief Roper and Chief Brooks in their official capacity would be redundant in light of Harris' § 1983 claims against the City of Birmingham and, for the reasons explained below, also improperly pleaded and groundless.
2. No Municipal Liability
As with supervisor liability, because there is no respondeat superior liability under § 1983, § 1983 liability against municipalities exists only under narrow circumstances. "'[T]o impose § 1983 liability on a municipality, a plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation.'" Anderson v. Fulton Ctny. Gov't, 485 F. App'x 394, 396 (11th Cir. 2012) (quoting McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.2004)). "In limited circumstances, a local government's decision not to train certain employees about their legal duty to avoid violating citizens' rights may rise to the level of an official government policy for purposes of § 1983." Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011). "To satisfy the statute, a municipality's failure to train its employees in a relevant respect must amount to 'deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.' Only then 'can such a shortcoming be properly thought of as a city "policy or custom" that is actionable under § 1983.'" Id. at 1359-60 (quoting City of Canton Ohio v. Harris, 489 U.S. 378, 388, 389 (1989)). "The rule suggested by the Supreme Court for purposes of failure to train also applies to the failure to supervise." Thompson v. Sheriff, Pinella Cnty. Fla., 542 F. App'x 826, 828 n.1 (11th Cir. 2013) (citing Gold v. City of Miami, 151 F.3d 1346, 1350-51 (11th Cir.1998)). Harris does not allege the existence of the requisite custom or policy to give rise to municipal liability under § 1983, and the record contains no evidence of such a custom or policy. Nor does Harris allege the existence of the deliberate indifference necessary to give rise to a failure-to-supervise or failure-to-train claim, and the record contains no evidence of such a custom or policy. At most, Oliver and Harris' four responses to the motion for summary judgment contain two statements that touch on a possible municipal liability theory: (1) that "[a]t all times relevant, Chief A.C. Roper and Fire Chief Ivor J. Brooks did not properly command or supervise the police officers and or the fire or rescue work[ers] and did not professionally their behavior and interaction with a citizen of the United States," doc. 47 at 5 (Oliver and Harris' amendment to opposition to the named defendants' motion for summary judgment), and (2) that "Defendants present substantial evidence showing that their custom policies, and practices ratifies [sic] their conduct, behavior, responses, and practices and misconduct and misbehavior with every effort and in which defendants w[o]re their badge and uniform being convinced and convincing themselves that they are entitled to qualified immunity." Doc. 49 at 3 (document styled "plaintiffs 'oppose' defendants memorandum brief in support of defendants motion for summary judgment"). To the extent these statements speak to a municipal custom or practice or failure to supervise, however, Harris cites no supporting evidence. At best then, Harris' contentions are conclusory, and conclusory allegations are insufficient to defeat a motion for summary judgment. Ellis, 432 F.3d at 1326.
Consequently, because the court dismisses Oliver and Harris' claims against the John Doe defendants, or, in the alternative, because the complaint fails to state a claim to which relief can be granted under § 1983 against Chief Roper, Chief Brooks, and the City of Birmingham, and, even were such claims properly pleaded, no evidence supports them, Harris' claims pursuant to § 1983 are due to be dismissed with prejudice.
B. Harris and Oliver's state law claims.
The named defendants removed this action pursuant to federal question jurisdiction under 28 U.S.C. §§ 1331, 1343 and 1441. Doc. 1 at 2. The only federal law claims Oliver and Harris allege in their complaint are those pursuant to 42 U.S.C. § 1983, which the court has dismissed. While the court may have authority to exercise supplemental jurisdiction over Oliver and Harris' remaining state law claims, it nevertheless may decline to exercise supplemental jurisdiction where, as here, it "has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). "[I]f the federal claims are dismissed before trial . . . the state claims should be dismissed as well." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); see also Arnold v. Tuskegee Univ., 212 F. App'x. 803, 811 (11th Cir. 2006) ("When the district court has dismissed all federal claims from a case, there is a strong argument for declining to exercise supplemental jurisdiction over the remaining state law claims."); Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir. 2004) (stating that the Eleventh Circuit "encourage[s] district courts to dismiss any remaining state claims when, as here, the federal claims have been dismissed prior to trial"). Considering that Oliver and Harris' remaining claims relate solely to issues of Alabama statutory and common law, comity points in favor of declining supplemental jurisdiction. Accordingly, judicial economy, convenience, fairness, and certainly comity is best served by remanding these claims back to the Circuit Court of Jefferson County, Alabama. See Birster v. Am. Home Mortg. Servicing, Inc., 796 F. Supp. 2d 1376, 1380 (S.D. Fla. 2011) (rev'd on other grounds by 481 F. App'x 579 (11th Cir. 2012)) (remanding state law claims to state court after granting defendant's motion for summary judgment on plaintiff's sole federal claim). IV. CONCLUSION
For the reasons stated above, Harris' claims pursuant to 42 U.S.C. § 1983 are dismissed with prejudice. Oliver and Harris' remaining state law claims are remanded to the Circuit Court of Jefferson County Alabama. The court will enter a separate order consistent with this opinion.
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ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
Id. at 26. Harris signed the report, indicating that she "read this report and that all information given by [Harris] is correct to the best of [her] knowledge." Id.