Antonio Love v. City Of Mobile ., CA 10-0166-CG-C.
| Decision Date | 08 July 2010 |
| Docket Number | No. CA 10-0166-CG-C.,CA 10-0166-CG-C. |
| Citation | 724 F.Supp.2d 1208 |
| Parties | Antonio LOVE, Plaintiff, v. CITY OF MOBILE, et al., Defendants. |
| Court | U.S. District Court — Southern District of Alabama |
OPINION TEXT STARTS HERE
Thomas Earl James, Birmingham, AL, for Plaintiff.
Alicia Marie Jacob, Thomas O. Gaillard, III, Galloway, Wettermark, Everest, Rutens & Gaillard, LLP, James B. Rossler, C. Richard Wilkins, Emit Luther McCafferty, III, Vickers, Riis, Murray & Curran, L.L.C., Mobile, AL, Caroline Thomason Pryor, Sarah Cross Blackwood, Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Daphne, AL, Constance Caldwell Walker, Haskell Slaughter Young & Gallion, LLC, Thomas T. Gallion, III, Montgomery, AL, for Defendants.
After due and proper consideration of all portions of this file deemed relevant to the issues raised, and there having been no objections filed, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) and dated June 21, 2010 is ADOPTED as the opinion of this Court.
Plaintiff's claim against Gooden for negligent or wanton failure to properly train managers and employees is DISMISSED WITH PREJUDICE; the motion to dismiss is otherwise DENIED.
This cause is before the undersigned for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B), on the complaint ( see Doc. 16, Exhibit A), the motion to dismiss filed by defendants Dollar General Corporation and Kenneth Gooden (Doc. 16), the plaintiff's opposition (Doc. 18), and the moving defendants' response (Doc. 19). After consideration of the foregoing pleadings, it is the undersigned's recommendation that the motion to dismiss filed by Dollar General Corporation and Kenneth Gooden be GRANTED IN PART and DENIED IN PART.
1. Plaintiff, who is deaf and mentally disabled, filed a twelve-count complaint against the moving defendants, the City of Mobile, Officer Kevin Rodgers, and others, arising out of a July 24, 2009 incident at the Dollar General Store located on Azalea Road in Mobile, Alabama. ( See Doc. 16, Exhibit A, COMPLAINT) Love claims he was subjected to a false arrest, excessive force and assault and battery at the hands of Officer Rodgers and another unidentified police officer. ( See id.)
2. Plaintiff, a frequent visitor to the Dollar General on Azalea Road, entered the store's bathroom after feeling sick to his stomach. ( Id. at ¶ 13) For reasons unknown to Love, Dollar General store manager Kenneth Gooden called 911 while he was inside the restroom. ( Id. at ¶ 14) When officers arrived at the store, they began banging on the bathroom door and yelling for plaintiff to exit the restroom; however, “due to his being deaf, [p]laintiff could not hear what the officers were yelling, he could only detect the vibrations coming from them banging on the door.” ( Id. at ¶ 15) Frightened, the plaintiff stayed in the bathroom and hid under the umbrella he had brought to the store with him. ( Id. at ¶ 16)
3. Receiving no response from Love, the officers shot pepper spray under the bathroom door 1 and eventually open the door with such force that plaintiff suffered a sizeable wound to his head as he was thrown backwards. ( Id. at ¶ ¶ 17 & 19) The officers tasered Love three times and arrested him on charges of failing to obey orders, resisting arrest, and disorderly conduct. ( Id. at ¶ ¶ 20 & 22) After a magistrate refused to issue arrest warrants on these charges, the officers returned plaintiff to his apartment complex “where they left him in the parking lot with no explanation to [his] worried family about where [he] had been for the prior six hours.” ( Id. at ¶¶ 23-24)
4. Gooden had prior knowledge of plaintiff and his disabilities and though the store manager was aware that it was plaintiff in the bathroom “[t]hroughout the entire incident,” he never relayed this information to the officers. ( Id. at ¶ ¶ 25-26)
5. Love asserts the following two claims against defendants Dollar General and Gooden:
COUNT X
65. Plaintiff realleges all prior paragraphs of the Complaint as if set out here in full.
66. Defendants Dollar General Corporation, Kenneth Gooden and/or Fictitious Defendant “A,” knew, or should have known, that Plaintiff was deaf and mentally disabled.
67. Defendants Dollar General Corporation, Kenneth Gooden and/or Fictitious Defendant “A” were under a duty to simply unlock the door to check on Plaintiff and/or communicate to the police Plaintiff's disabilities so that they could properly handle the situation and/or communicate to the police the ease at which the subject door could have been unlocked.
68. Defendants Dollar General Corporation, Kenneth Gooden and/or Fictitious Defendant “A” negligently or wantonly failed to simply unlock the door to check on Plaintiff and/or negligently or wantonly failed to communicate to the police Plaintiff's disabilities and/or negligently or wantonly failed to communicate to the police the ease at which the subject door could have been unlocked.
69. As a result of the conduct of the Defendants set out in this count, Plaintiff was pepper sprayed and tasered by the police and was caused to suffer emotional and physical injuries and damages, embarrassment, humiliation and has been caused to incur medical bills and other expenses.
WHEREFORE, Plaintiff demands general compensatory and punitive damages plus interest and costs, both jointly and severally against all Defendants, both named and fictitious.
COUNT XI
70. Plaintiff realleges all prior paragraphs of the Complaint as if set out here in full.
71. Defendants Dollar General Corporation, Kenneth Gooden and/or Fictitious Defendant “B” were under a duty to properly train managers and/or employees on the proper way to handle similar situations.
72. Defendants Dollar General Corporation, Kenneth Gooden and/or Fictitious Defendant “B” were under a duty to properly supervise managers and/or employees when a[ ] situation such as this occurred.
73. Defendants Dollar General Corporation, Kenneth Gooden and/or Fictitious Defendant “B” negligently or wantonly failed to properly train, retain and/or supervise managers and employees.
74. As a result of the conduct of the Defendants set out in this count, Plaintiff was pepper sprayed and tasered by the police and was caused to suffer emotional and physical injuries and damages, embarrassment, humiliation and has been caused to incur medical bills and other expenses.
WHEREFORE, Plaintiff demands general compensatory and punitive damages plus interest and costs, both jointly and severally against all Defendants, both named and fictitious.
(Doc. 16, Exhibit A, COMPLAINT, at ¶ ¶ 65-74)
6. Defendants Dollar General and Kenneth Gooden filed their Rule 12(b)(6) motion to dismiss on April 29, 2010. (Doc. 16) The plaintiff joined the issue on May 20, 2010 (Doc. 18) and the moving defendants filed their response to plaintiff's opposition on May 27, 2010 (Doc. 19).
1. Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to dismiss a complaint on the basis that the plaintiff has failed to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion questions the legal sufficiency of a complaint (or portions of a complaint); therefore, in assessing the merits of a Rule 12(b)(6) motion, the court must assume that all the factual allegations set forth in the complaint are true. See, e.g., United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990). Moreover, all factual allegations are to be construed in the light most favorable to the plaintiff. See, e.g., Brower v. County of Inyo, 489 U.S. 593, 598, 109 S.Ct. 1378, 1382, 103 L.Ed.2d 628 (1989).
2. Rule 8(a)(2) generally sets the benchmark for determining whether a complaint's allegations are sufficient to survive a Rule 12(b)(6) motion. See Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) ( ). Indeed, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.’ ” Id., quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-1965, 167 L.Ed.2d 929 (2007). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Id., quoting Twombly, 550 U.S. at 557, 127 S.Ct. at 1955.
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim that has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.
Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Rule 8 marks a notable and generous departure from the...
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