Click Back Button to Return to Publication.
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
NAHUM ROMERO,
Plaintiff,
vs.
THE CITY OF CLANTON, et al.,
Defendants.
CIVIL ACTION NO. 02-A-631-N
220 F. Supp. 2d 1313
September 11, 2002,
Decided
September 11, 2002, Filed,
Entered
I.
INTRODUCTION
This cause is before the court on a Motion to Dismiss (Doc. # 6) filed
by the City of Clanton, Alabama and Chief James Henderson ("the
Defendants") on July 12, 2002.
The Plaintiff, Nahum Romero,
filed a Complaint in this case on May 31, 2002. He has brought claims for
violation of the United States Constitution (Count I), n1 assault and battery
(Count II), false imprisonment [*1315] (Count III), negligent hiring (Count
IV), negligent supervision (Count V), negligent retention (Count VI),
negligence (Count VII), outrage (Count VIII), and wantonness (Count IX).
The
Defendants filed a brief in support of the Motion to Dismiss, but although
given an opportunity by the court to file a reply brief in response to the
Plaintiff's brief in opposition to the Motion to Dismiss, have filed no reply.
Upon consideration of the Complaint and the briefs filed, and for
reasons to be discussed, the Motion to Dismiss is due to be GRANTED in part and
DENIED in part.
II.
MOTION TO DISMISS STANDARD
A
court may dismiss a complaint for failure to state a claim only if it is clear
that no relief could be granted under any set of facts that could be proven
consistent with the allegations in the complaint. See Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d
59, 104 S. Ct. 2229 (1984); see also Wright v. Newsome, 795 F.2d 964, 967 (11th
Cir. 1986) ("We may not ... [dismiss] unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of the claims in the
complaint that would entitle him or her to relief.") (citation omitted).
The court will accept as true all well-pleaded factual allegations and will
view them in a light most favorable to the nonmoving party. Hishon, 467 U.S. at 73. Furthermore, the
threshold is "exceedingly low" for a complaint to survive a motion to
dismiss for failure to state a claim.
Ancata v. Prison Health Services, Inc., 769 F.2d 700, 703 (11th Cir.
1985).
III. FACTS
The allegations of the
Plaintiff's Complaint are as follows:
Williams was an officer of the City of
Clanton Police Department during the events in question. In June of 2001,
Williams allegedly unlawfully stopped Romero, conducted an unlawful pat down
search, handcuffed Romero and placed him in his police vehicle, drove Romero to
a remote location, exposed himself, and attempted to sodomize Romero. Romero
seeks to hold Williams liable for his actions under state and federal law.
Williams has not moved to dismiss the claims against him.
Romero has also asserted claims
against Henderson, who is the Chief of Police of the City of Clanton, and the
City of Clanton, arguing that they can be held liable because the
constitutional violations which Romero suffered were pursuant to an official
policy and custom and because the City of Clanton is vicariously liable under
state law for Williams' actions. Romero has alleged that Williams was dismissed
from prior employment with a police department for indecently exposing himself
to others, and that the City of Clanton Police Department was aware of a
complaint against Williams for sexual misconduct and abuse of power before the
incident involving Romero occurred.
IV.
DISCUSSION
A.
Claims Alleged Against the City of Clanton
The
Defendants have moved for dismissal of the claims in the Complaint against
[*1316] the City of Clanton on several grounds. The court will separately
address the grounds for dismissal as to the federal and state claims.
1.
Federal Claims
The
Defendants have argued that there are no constitutional violations alleged in
this case. The Defendants contend that as Williams' actions do not rise to the
level of a constitutional deprivation, the City of Clanton, as well as
Henderson, cannot be held liable for alleged acts and omissions. In support of
this argument, the Defendants cite to McKinney v. Pate, 20 F.3d 1550, 1556
(11th Cir. 1994), for the proposition that areas in which substantive rights
are created only by state law are not subject to substantive due process
protection. They contend that, at most, Romero has asserted violations of state
law.
Romero argues in response, and
the court agrees, that the Defendants have misapplied McKinney in this case.
The constitutional rights which Romero alleges were infringed may coincide with
state law rights to some degree, but they are not defined by state law. There
are constitutionally-defined protections against unlawful searches and seizures,
see U.S. Const., amend. IV, and a Fourteenth Amendment due process right to
liberty, which includes the right to be free from sexually motivated physical
assaults. See United States v.
Lanier, 520 U.S. 259, 261, 272 n.7, 137 L. Ed. 2d 432, 117 S. Ct. 1219 (1997);
n2 Johnson v. Cannon, 947 F. Supp. 1567, 1572-73 (M.D. Fla. 1996). n3 Romero
has not, therefore, failed to allege conduct which rises to the level of a
constitutional violation.
Also in Count I of the
Complaint, Romero asserts that his right to be free from cruel and unusual
punishment was violated. The protection against cruel and unusual punishment
found in the Eighth Amendment to the United States Constitution is only
implicated when there is a conviction for a crime, because the Eighth Amendment
prohibits particular conduct that would constitute punishment. See Bell v. Wolfish, 441 U.S. 520, 60 L. Ed.
2d 447, 99 S. Ct. 1861 (1979); Johnson, 947 F. Supp. at 1572. The Motion to
Dismiss, therefore, is due to be GRANTED as to the Eighth Amendment claims
asserted.
The City of Clanton
alternatively moves for dismissal of Romero's constitutional claims on the
basis that liability under § 1983 cannot be based on respondeat superior.
See Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1977)(a municipality
cannot [*1317] be
held liable under § 1983 on the basis of respondeat superior). To establish
liability, a plaintiff must identify an official policy or custom which is the
moving force of the constitutional violation.
Id. at 694.
In this case, Romero has alleged that the
City of Clanton established a policy or custom of deliberate indifference
through its police chief, Henderson. Complaint at P 16. Romero alleges that
there was a failure to screen applicants, and a failure to adequately train or
supervise. Id. at § 21.
In Board of County Commissioners
of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 137 L. Ed. 2d 626, 117 S. Ct.
1382 (1997), a case cited by Romero in support of his contention that
deliberate indifference can be established through inadequate screening, the
Supreme Court described the standard which must be met in order to find
deliberate indifference based on a failure to investigate an employee's
background. The Court held that a "plaintiff must demonstrate that a
municipal decision reflects deliberate indifference to the risk that a violation of a particular
constitutional or statutory right will follow the decision." Id. at 411.
The Court explained that to prevent municipal liability for a hiring decision
from collapsing into respondeat superior liability, a court must carefully test
the link between the policymaker's inadequate decision and the particular
injury alleged. Id. at 410. The Court
further stated that only where adequate scrutiny of an applicant's background
would lead a reasonable policymaker to conclude that the "plainly obvious
consequence of the decision to hire the applicant would be a deprivation of a
third party's federally protected right can the official's failure to
adequately scrutinize the applicant's background constitute 'deliberate
indifference. '" Id. at 411. Therefore, while evidence in Brown
that the applicant had pleaded guilty to traffic offenses and other
misdemeanors may have made him a poor candidate as a deputy, the municipality
could not be held liable for deliberate indifference unless the plaintiff
demonstrated that the decision to hire reflected a conscious disregard for a
high risk that the officer would use excessive force in violation of the
plaintiff's federally protected right.
Id. at 414. A finding of culpability cannot depend simply on the mere
probability that any officer inadequately screened will inflict any
constitutional injury, but must instead depend on a finding that the particular
officer was "highly likely to inflict the particular injury suffered by
the plaintiff." Id. at 412 (emphasis in original).
Brown has been applied by the Eleventh Circuit in a case involving
allegations of sexual harassment. See
Griffin v. City of Opa-Locka, 261 F.3d 1295 (11th Cir. 2001). In
Griffin, the court determined that the evidence produced was sufficient to find
deliberate indifference based on inadequate screening as there was testimony
that the city manager was hired without a background check, that the city had
received information alerting it to problems the individual had had in dealing
with women, and that a cursory check into his prior employment history would
have further alerted the city to prior complaints about the individual. Id. at 1314. The court concluded that
because the evidence supported the conclusion that the city ignored a known or
obvious risk that the individual was highly likely to engage in sexual
harassment, the city acted with deliberate indifference. Id.
[*1318] In this case, Romero
alleged that prior to joining the City of Clanton Police Department, Williams
had been dismissed from another police department on allegations that he had
indecently exposed himself to others. Complaint at P 14. Romero has also
alleged in the Complaint that when he reported Williams' conduct to Officer
Elijah Bearden, Bearden stated that the police department knew about or had suspected
Williams' misconduct. Id. at P 3. In a portion of the Complaint asserting a violation
of state law, Romero also alleges that Williams had a history of sexual
misconduct prior to being hired as a police officer for the City of Clanton.
Id. at P36. The court must conclude, therefore, that it is not clear that no
relief could be granted under any set of facts that could be proven consistent
with the allegations in the Complaint.
Further, in addition to his
allegations of the reasons for Williams' earlier dismissal and that the
department had suspicions of Williams' conduct, in the state law portion of his
Complaint, Romero also alleges that the City of Clanton's police department was
aware of a complaint against Williams for sexual misconduct and abuse of power
before the events alleged in the Complaint. Complaint at P41. Romero states
that a complaint of detention, unlawful touching, and attempted sodomy was
filed against Williams before the events
described in the Complaint. Id. at P 47.
A constitutional deprivation can
occur "where the failure to train amounts to deliberate indifference to
the rights of persons with whom the police come into contact." City of
Canton, Ohio v. Harris, 489 U.S. 378, 388, 103 L. Ed. 2d 412, 109 S. Ct. 1197
(1989); see also Gold v. City of
Miami, 151 F.3d 1346 (11th Cir. 1998). To the extent that the City of Clanton
was aware of other incidents of similar conduct, this knowledge supports a
theory that there was a failure to supervise or train. See Gold, 151 F.3d at 1350-51 (deliberate
indifference established by knowledge of similar prior incidents). n4
The theory that there was
deliberate indifference in screening Williams during the hiring process, might
not be sufficient to establish a policy and custom as to the unlawful seizure
and search claim, as there is no allegation that Williams was accused of having
unlawfully searched or seized persons in his previous employment. Romero
alleges, however, that the City of Clanton, through Henderson, failed to
properly train police officers and failed to enforce or implement restrictions
on pat down searches. Complaint at P 21. The court concludes that Romero's
allegations are sufficient to withstand the instant Motion to Dismiss. See Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163, 122 L. Ed. 2d 517, 113 S. Ct.
1160 (1993)(reversing decision dismissing a complaint on the basis of
inadequate pleading of a failure to adequately train). The Motion to Dismiss
is, therefore, due to be denied on the Fourteenth and Fourth Amendment claims
asserted against the City of Clanton.
The
City of Clanton moves for dismissal of any claims for punitive damages for
violations of federal law. As Romero concedes, the punitive damages claims
under federal law are due to be and will be dismissed as against the City of
Clanton. See City of Newport v. Fact
Concerts, Inc., 453 U.S. 247, 271, 69 L. Ed. 2d 616, 101 S. Ct. 2748 (1981).
[*1319] 2. State Law Claims
The
City of Clanton moves for dismissal of the state law claims against it on
multiple grounds. The City first asserts that Romero failed to provide proper
notice of his state law claims pursuant to Section 11-47-192 of the Alabama
Code. Romero concedes that the Complaint does not specify whether he complied
with the notice requirements, and he asks the court to dismiss the state law
claims without prejudice and with leave to amend the Complaint, if appropriate,
at a later time. Romero apparently is not conceding that no notice was
provided, but merely has stated that no notice has been pleaded in the Complaint.
The
determination of whether to dismiss the state law claims against the City of Clanton without prejudice and to
allow Romero to amend his Complaint to state those claims at a later date
implicates the issue of whether such an amendment would be futile. Intentional
tort claims cannot be brought against municipalities. See Ala. Code § 11-47-190
(1994). Therefore, even if Romero would ultimately be able to allege and prove
timely notice in accordance with Alabama statutory requirements, his claims in
Counts II, n5 III, n6 VIII, and IX would not be allowable under Alabama law.
See Beech v. City of Mobile, 874 F.
Supp. 1305, 1314 (S.D. Ala. 1994)(assault and battery claim barred); Rose v.
Town of Jackson's Gap, 952 F. Supp. 757, 767 (M.D. Ala. 1996)(false
imprisonment claim barred); Hawkins v. City of Greenville, 101 F. Supp. 2d
1356, 1365 (M.D. Ala. 2000)(outrage claim is barred); Hilliard v. City of
Huntsville, 585 So. 2d 889, 892 (Ala. 1991)
(wantonness claim is barred). Accordingly, those claims are due to be
dismissed with prejudice. The court discerns no prejudice to the City of
Clanton should the remaining state law claims based on negligence be dismissed
without prejudice, however. Accordingly, the court will dismiss the remaining
state law claims against the City of Clanton without prejudice, with leave to
amend the Complaint to plead these negligence claims within the time allowed
for amendments by the Scheduling Order to be entered in this case, if Romero
can plead within the strictures of Federal Rule of Civil Procedure 11 that the
notice requirements of Alabama state law have been satisfied.
The
City of Clanton further moves for dismissal of state law claims for punitive
damages on the basis of a state statute prohibiting the award of punitive
damages against a municipality. As Romero concedes, the claims for punitive
damages for violations of state law are due to be dismissed, see Ala. Code §
6-11-26 (1993), and the Motion to Dismiss is due to be GRANTED as to Romero's
request for punitive damages for violation of state law by the City of Clanton.
B.
Claims Alleged Against Henderson
None of the violations of state law alleged in the Complaint are
asserted [*1320]against Henderson. Therefore, the court will turn to the
grounds of the Motion to Dismiss as they relate to the only claims asserted
against Henderson on the face of the Complaint, namely, the alleged violations
of federal law.
Henderson seeks dismissal of any claims against him in his official
capacity as being duplicative of the claims against the City of Clanton. Romero
responds that he only intended to plead individual capacity claims as against
Henderson, but that to the extent that official capacity claims have been
pleaded, they are due to be dismissed. Plaintiff's Response at page 10.
Accordingly, the court will dismiss any official capacity claims as against
Henderson.
The
Defendants have further argued that the claims against Henderson in his
individual capacity are due to be dismissed because he is protected by the
doctrine of qualified immunity. In so arguing, the Defendants have relied on a
standard for analyzing qualified immunity which is no longer applicable. The
Supreme Court has recently altered the Eleventh Circuit's qualified immunity
standard to a standard under which a defendant is entitled to "fair
warning" that his conduct deprived his victim of a constitutional
right. Hope v. Pelzer, U.S.
, 153 L. Ed. 2d 666, 122 S. Ct. 2508 (2002). Liability only attaches if
"the contours of the right [violated are] sufficiently clear that a
reasonable official would understand that what he is doing violates that
right." United States v. Lanier, 520 U.S. 259, 270, 137 L. Ed. 2d 432, 117
S. Ct. 1219 (1997). Officials can be on notice that their conduct violates
established law even in novel factual circumstances, although in some cases, a
very high degree of prior factual particularity may be necessary, such as when
an earlier case expressly leaves open whether a general rule applies to the
particular type of conduct at issue.
Hope, 122 S. Ct. at 2516. When qualified immunity is asserted as a
defense, a court must first determine whether the violation of a constitutional
right is asserted, then determine whether that right was clearly established.
See Wilson v. Layne, 526 U.S. 603,
609, 143 L. Ed. 2d 818, 119 S. Ct. 1692 (1999).
In
this case, Romero has argued that the law regarding constitutional protections
against sexual assault under color of state law and unreasonable searches and
seizures is clearly established. The issue with regard to the claims against
Henderson, however, is not merely whether the violations of constitutional
rights by Williams are clearly established, but whether the basis for
Henderson's individual liability is clearly established.
Addressing first the allegation of failure to train or supervise for
purposes of the unreasonable search and seizure claims, Romero has alleged that
the City of Clanton, through Henderson, failed to properly train police
officers and failed to enforce or implement restrictions on pat down searches.
Complaint at P 21. At this stage in the proceedings, the court must accept as
true the allegations of the Complaint. Evidence could ultimately be presented
that pat down searches are not restricted by the City of Clanton, and that
Henderson should have known that training on the use of such searches was
needed. City of Canton, 489 U.S. at 390
n.10. (stating that the need to train and supervise in limited areas could be
so obvious and the likelihood of constitutional violations highly predictable
so that liability attaches for a single incident, or that police officers in
their discretion so [*1321] often violate constitutional rights that the need
for further training must be obvious). The court also must conclude at this
point in the proceedings that an absence of training under such circumstances
could meet the fair warning standard as it is based on the "obviousness"
of the need for training. Therefore, the court must conclude that the Motion to
Dismiss is due to be DENIED on this claim.
Romero has also argued that Henderson was deliberately indifferent to
his Fourteenth Amendment due process rights under clearly established law. As
was discussed above, when there is a sufficient nexus between previous conduct
and charged conduct, a failure to screen an applicant for employment can be
deliberate indifference. Brown, 520 U.S. at 411. The question before the court,
therefore, is whether a reasonable person should have known that his failure to
adequately screen violated clearly established law.
Under the fair warning standard of qualified immunity mandated by the
Supreme Court, a case does not have to be factually identical to give
"reasonable warning that the conduct then at issue violated constitutional
rights." Lanier, 520 U.S. at 269. The allegation in this case, which at
this point in the proceedings the court accepts as true, that Williams'
previous discharge from employment with a police department for indecently
exposing himself to others, is sufficiently close to the conduct in question
here to establish deliberate indifference for purposes of a motion to dismiss.
Therefore, under Brown, Henderson should have known that his alleged failure to
screen Williams was deliberate indifference to the Fourteenth Amendment rights
of detainees such as Romero.
In
addition, although the Griffin case applying the Brown analysis was decided
after the events in question, another Eleventh Circuit case also supports a
denial of qualified immunity. In Parker v. Williams, 862 F.2d 1471 (11th Cir.
1989), overruled on other grounds by,
Turquitt v. Jefferson County, Ala., 137 F.3d 1285 (11th Cir. 1998), the
court upheld a denial of qualified immunity and determined that where a chief
jailer had been convicted of indecent exposure, had undergone treatment for
mental problems, and had a history of drug abuse, a sheriff's knowledge of the
background, or the fact that he could have discovered this background through
minimal investigation, meant that the sheriff could not conclude that his
actions in hiring and promoting the chief jailer did not violate the
plaintiff's Fourteenth Amendment right to be free from arbitrary risks of serious
personal injury during pre-trial detainment. Id. at 1477. Under Parker,
therefore, qualified immunity is due to be denied at this stage in the
proceedings. n7
Also, as earlier discussed, in addition to his allegations of the
reasons for Williams' earlier dismissal and the department's suspicions of
Williams' conduct, Romero has alleged that the City of Clanton's police [*1322]
department was aware of a complaint against Williams for sexual misconduct and
abuse of power before the events alleged in the Complaint. Complaint at
P41. To the extent that Henderson was
aware of other incidents of similar conduct, this knowledge also supports a
theory that there was a failure to supervise or train under clearly established
law. See Gold, 151 F.3d at 1350-51.
Qualified immunity is, therefore, also due to be denied on this basis. Cf.
Sweatt v. Bailey, 876 F. Supp. 1571 (M.D. Ala.1995)(qualified immunity granted
because there was inadequate evidence of supervisor's knowledge of complaints
against officer to constitute failure to supervise).
The
court emphasizes that it has based its qualified immunity analysis on the
allegations of the Complaint. It may be that with further factual development
Henderson will be able to demonstrate that he is entitled to qualified
immunity. At this point, however, the court must conclude that the Motion to
Dismiss on the basis of qualified immunity is due to be denied, without
prejudice to Henderson's ability to again raise the defense in a properly filed
motion for summary judgment, or at trial.
V.
CONCLUSION
For
the reasons discussed, the court concludes that the Motion to Dismiss is due to
be GRANTED in part and DENIED in part. Accordingly, it is hereby ORDERED as
follows:
1.
The Motion to Dismiss is GRANTED as to Romero's claims for punitive damages
under state and federal law against the City of Clanton and such claims are
DISMISSED with prejudice.
2.
The Motion to Dismiss is GRANTED as to Romero's state law claims against the
City of Clanton, his claims for intentional torts in Counts II, III, VIII, and
IX are DISMISSED with prejudice, and any claims based on negligence in Counts
II, III, IV, V, VI, VII are DISMISSED without prejudice.
3.
The Motion to Dismiss is GRANTED to the extent that claims have been asserted
against the City of Clanton and Henderson for violation of the Eighth
Amendment.
4.
All federal claims are DISMISSED as against Henderson in his official capacity.
5.
The Motion to Dismiss is DENIED as to Romero's Fourth and Fourteenth Amendment
claims against the City of Clanton and Henderson in his individual capacity.
The
case will proceed on all claims against Williams, and, pending the filing of a
properly amended Complaint, against the City of Clanton and Henderson in his
individual capacity on Romero's Fourth and Fourteenth Amendment claims.
Done this 11th day of September, 2002.
W.
HAROLD ALBRITTON
CHIEF UNITED STATES DISTRICT JUDGE
FOOTNOTES:
n1 Although Count I is labeled a Fourteenth Amendment claim, Romero
also alleges four specific constitutional violations as incorporated through
the Fourteenth Amendment: (1) deprivation of liberty without due process of law,
(2) unreasonable search and seizure, (3) cruel and unusual punishment, and (4)
excessive use of force. The court construes the Complaint, therefore, as
pleading claims for violations of the Due Process Clause of the Fourteenth
Amendment, the Fourth Amendment, and the Eighth Amendment to the United States
Constitution.
n2 Although Lanier was a criminal case, the crime charged was
a violation of constitutional rights. Lanier, 520 U.S. at 261. The Court
remanded the case to the Sixth Circuit for further analysis, but noted that
some of the respondent's arguments were untenable, including the argument that
the criminal statute could not include violations of rights protected by the
Due Process Clause of the Fourteenth Amendment. Id. at 272 n.7. The Court
acknowledged, therefore, a Fourteenth Amendment due process right against
sexually motivated physical assaults under color of state law.
n3 The Defendants have not argued that the protections of the Fourth Amendment preclude application of Fourteenth Amendment standards in this case. The initial alleged unlawful seizure and search are cognizable under the Fourth Amendment. Under the factual allegations of the Complaint, it appears to the court that the alleged attempted sexual assault occurred after the initial seizure, while Romero remained detained by Williams, making the Fourteenth Amendment applicable. See Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir.1996)("Claims involving the mistreatment of arrestees or pretrial detainees in custody are governed by the Fourteenth Amendment's Due Process Clause ...."). This issue is, however, one which may be more thoroughly explored if properly raised in a motion for summary judgment.
n4 The sufficiency of any
knowledge, if knowledge is proven upon further factual development, can be
tested if properly raised in a motion for summary judgment.
n5 No allegations of
neglect, carelessness, or unskillfulness leading to assault and battery have
been alleged in this case. To the extent that a negligent assault and battery
claim could be pleaded in this case, the prohibition against intentional tort
claims would not apply, and a claim may be re-pleaded, if the notice
requirements are satisfied.
n6 A false imprisonment claim can be based on less than intentional conduct, so that a claim is not barred as against a municipality. See Franklin v. City of Huntsville, 670 So. 2d 848 (Ala. 1994). To the extent that Romero intends to assert such a claim, it too can be re-pleaded, if the notice requirements are satisfied.
n7 The court notes that the
holding in Parker as to the standard for deliberate indifference, although not
necessarily the qualified immunity analysis, has been called into question.
See Lancaster v. Monroe County,
Alabama, 116 F.3d 1419, 1428 n.10 (11th Cir. 1997)("The facts of Parker
are similar to those in Brown and, for that reason, Parker's holding on
deliberate indifference may no longer be good law."). Even if Parker's
qualified immunity analysis is no longer good law under Brown, the Brown
decision itself provides fair warning, accepting the allegations of the
Complaint in this case as true.