Flood v. City of Jacksonville

Decision Date12 July 2017
Docket NumberCase No.: 1:16–CV–1832–VEH
Citation263 F.Supp.3d 1213
Parties Shirley McBrayer FLOOD, as Personal Representative of the Estate of David Daniel McBrayer, Deceased, Plaintiff, v. CITY OF JACKSONVILLE, Alabama ; and Dale Murphy Edwards, Defendants.
CourtU.S. District Court — Northern District of Alabama

U. W. Clemon, U.W. Clemon, LLC, Birmingham, AL, Brett D. Watson, Mehri & Skalet PLLC, Washington, DC, for Plaintiff.

Charles David Stubbs, Stubbs Sills & Frye PC, Anniston, AL, Terry A. Sides, Catherine R. Glaze, Hale Sides LLC, Birmingham, AL, for Defendants.


VIRGINIA EMERSON HOPKINS, United States District Judge

This is a civil action filed by the Plaintiff, Shirley McBrayer Flood, as personal representative of the estate of David Daniel McBrayer, who is deceased. (Doc. 23). The allegations in the First Amended Complaint arise out of the fatal shooting of McBrayer by Officer Dale Murphy Edwards, a police officer with the City of Jacksonville, Alabama's police department. Only two Defendants remain in this case–the City of Jacksonville, Alabama ("the City") and Officer Edwards. Against the City of Jacksonville, the First Amended Complaint sets out claims for: violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12111 – 12213 (the "ADA") (Count One); violation of the Rehabilitation Act, 29 U.S.C. §§ 701 – 797b (Count Two) (the "RA"); and "Failure to Train" (Count Three).1 Against Edwards, the First Amended Complaint alleges a claim for "Wrongful Death." (Count Five)2 .

This case comes before the Court on the Motions To Dismiss filed by Officer Edwards (doc. 30) and the City (doc. 32)3 . Each motion is filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated herein Officer Edwards's motion will be DENIED , and the City's motion will be GRANTED in part and DENIED in part .


Generally, the Federal Rules of Civil Procedure require only that the complaint provide "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a). However, to survive a motion to dismiss brought under Rule 12(b)(6), a complaint must "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (" Twombly ").

A claim 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." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ) (" Iqbal "). That is, the complaint must include enough facts "to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation and footnote omitted). Pleadings that contain nothing more than "a formulaic recitation of the elements of a cause of action" do not meet Rule 8 standards, nor do pleadings suffice that are based merely upon "labels or conclusions" or "naked assertion[s]" without supporting factual allegations. Id. at 555, 557, 127 S.Ct. 1955 (citation omitted).

Once a claim has been stated adequately, however, "it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 563, 127 S.Ct. 1955 (citation omitted). Further, when ruling on a motion to dismiss, a court must "take the factual allegations in the complaint as true and construe them in the light most favorable to the plaintiff." Pielage v. McConnell , 516 F.3d 1282, 1284 (11th Cir. 2008) (citing Glover v. Liggett Group, Inc. , 459 F.3d 1304, 1308 (11th Cir. 2006) ).


The First Amended Complaint sets out the following:

11. David McBrayer's mental problems became known to the [Jacksonville Police Department ("JPD") ] on Saturday, November 8, 2014. On that date, at 5:44 am, David tried to break into the local Dollar General Store. Within the hour, JPD officers ... confronted him in the store's parking lot in his pajamas and in possession of a hammer. He was arrested for disorderly conduct and held in the Jacksonville City Jail.
12. On Monday, November 10, 2014, an official of the JPD telephoned David's father, David Bradford McBrayer ("Bradford McBrayer"), on his cellphone at work in Atlanta, Georgia. The JPD official stated to Bradford McBrayer that David had a mental problem and needed help.... According to the official, JPD had contacted the Calhoun County Health Officer to no avail. The JPD was concerned about releasing David McBrayer on his own; and asked Bradford McBrayer to come to Jacksonville and get medical care for his son.
13. Bradford McBrayer left his home in Atlanta and came to Jacksonville on the same evening on which he received the JPD call. At the Jacksonville City jail, he signed the release papers and picked up his son at approximately 11:00 pm. The releasing officer told Bradford McBrayer that his son needed medical care and should be taken for medical care as soon as possible. Bradford McBrayer talked with his son and took his son to the apartment in Jacksonville. But David would not allow his father to enter the apartment. Instead, Bradford McBrayer spent the night at a local motel.
14. On Tuesday, November 11, 2014, Bradford McBrayer saw his son a few times during the day. Just before lunch, David McBrayer said to his father: "I feel threatened by you." As a result of those short interactions, Bradford McBrayer concluded that his son did indeed have a serious mental problem. He returned to the JPD that afternoon and asked for its assistance in persuading David to get his [sic] the car so that his father could take him home for medical treatment. An official of the JPD gave Bradford McBrayer a number to call when he was ready to leave.
15. Bradford McBrayer last saw his son thorough [sic] the apartment window around 8:30 pm on November 11, 2014, inside the apartment playing video games. Bradford McBrayer went back to his motel room for the evening, hoping to get medical assistance for his mentally troubled son the following day.
16. Around 9:00pm that night, David McBrayer left his apartment. He bought a pizza, and purchased toys, drinks, candy, and a box cutter from the local Walmart [sic] store.
17. At approximately 10:20 pm on November 11, 2014, someone fired several shots through a car window with a BB gun at the Coliseum Apartments. The owner of the car contacted the JPD.
18. Three JPD Officers, including Defendant Dale Murphy Edwards, arrived at David's apartment shortly thereafter. Two of the officers approached the front of the apartment, and the third officer approached the rear.
19. When an officer knocked on his front door, David then ran out of the rear of the apartment. He ran to his car and picked up the box cutter. As the [sic] he walked away from the car, the officers surrounded him. David kept yelling, "I feel threatened by you." The officers yelled at him several times to put down "the knife." David did not immediately drop the box cutter.
20. Within a minute of having commanded David to drop "the knife," Defendant Dale Murphy Edwards fired five rapid rounds of bullets into David's chest and torso, killing him instantly.
21. Defendant Edwards fatally shot David McBrayer in the medial left chest, in the left chest through the left nipple, in the left lateral chest, and in the left mid to upper back. Each of these was [a] penetrating gunshot wound.
22. Defendant Edwards was acting pursuant to JPD policy on November 14, 2014, when he used deadly force on David McBrayer.
23. Standard police department policy is to use deadly force only where a suspected person poses a significant threat of death or serious bodily injury to the officer or others.
24. Defendant Edwards and the other JPD officers knew that David was mentally disturbed when they approached him on the night of November 11, 2014; and that he did not pose a significant threat of death or serious bodily injury to them or others.
25. The JPD has no written policies on the handling of mentally disabled citizens during an investigation or arrest.
26. The JPD has by custom and practice adopted a policy known as "the 21–Foot Rule." Under this Rule, whenever a policeman is within twenty-one (21) feet of a person carrying a knife, the policeman is authorized to use deadly force. The policeman need not consider the totality of the surrounding circumstances, the need for using deadly force, the relationship between the need for using force and the amount of force used, or alternatives such as pepper spray or tazers.

(Doc. 23 at 4–8, ¶¶ 11–26).

A. The Claims Against the City Are Not Barred by the Applicable Statutes of Limitation

The following claims are asserted against the City: violation of the ADA (Count One); violation of the RA (Count Two); and "Failure to Train" (Count Three). The parties agree Ala. Code § 6–2–38(1) provides the applicable two-year statute of limitations as to Counts One and Two. See, Horsley v. Univ. of Alabama , 564 Fed.Appx. 1006, 1008 (11th Cir. 2014) ("[For] discrimination claims under Title II of the ADA and the [RA] ... the applicable limitations period is governed by the most analogous state statute of limitations. In Alabama, where this action was brought, the applicable limitations period is two years.") (citing Everett v. Cobb Cnty. Sch. Dist. , 138 F.3d 1407, 1409–10 (11th Cir.1998) and Ala. Code § 6–2–38(1) ); see also , doc. 33 at 7 and doc. 37 at 2.

Count Three asserts a claim pursuant to 42 U.S.C. § 1983 for "failure to train."4 "All constitutional claims brought under § 1983 are tort actions, subject to the statute of limitations governing personal injury actions in the state where the § 1983 action has been brought. McNair v. Allen , 515 F.3d 1168, 1173 (11th Cir. 2008). In Alabama, the governing limitations period is two years. McNair , 515 F.3d...

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  • Doe v. Gwinnett Cnty.
    • United States
    • U.S. District Court — Northern District of Georgia
    • April 2, 2020
    ...the term "attach" interchangeably with "hug" in a manner that was, at best, difficult to interpret.159 The County's citation to Flood v. City of Jacksonville, where the court held that an intellectually disabled plaintiff must specifically request an accommodation does not alter the Court's......
  • Oirya v. Auburn Univ.
    • United States
    • U.S. District Court — Middle District of Alabama
    • October 2, 2019
    ...which are tort actions subject to the personal injury statute of limitations in the state where brought. Flood v. City of Jacksonville, 263 F. Supp. 3d 1213, 1218 (N.D. Ala. 2017) (quoting McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008). In Alabama, the applicable statute of limitatio......
  • Jay v. Auburn Univ., CASE NO. 2:17-CV-00369-C
    • United States
    • U.S. District Court — Southern District of Alabama
    • May 20, 2019
    ...anger," these symptoms do not meet the definition of a "disability" under the Rehab Act. See Flood v. City of Jacksonville, 263 F. Supp. 3d 1213, 1227 (N.D. Ala. 2017) (granting motion to dismiss on a Rehab Act claim asserting a mental impairment because "no facts are pled which plausibly a......
  • Channel v. Smith
    • United States
    • U.S. District Court — Southern District of Georgia
    • March 23, 2018
    ...vacated in part on other grounds upon reconsideration, 2015 WL 13307482 (N.D. Ga. Aug. 31, 2015); accord Flood v. City of Jacksonville, 263 F. Supp. 3d 1213, 1222-23 (N.D. Ala. 2017); Robinette v. Johnston, 637 F. Supp. 922, 924-25 (M.D. Ga. 1986) (finding that the diligence in service requ......
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    • Michigan Law Review Vol. 120 No. 4, February 2022
    • February 1, 2022
    ...Utah's law); Ag-Gag Laws, ANIMAL LEGAL DEF. Fund, https://aldf.org/issue/ag-gag [perma.cc/TLG2-VS3D]. (172.) See, e.g., Herbert, 263 F. Supp. 3d at 1213 (describing Utah's law as "[s]uppressing broad swaths of protected speech without (173.) David J. Bederman, Food Libel: Litigating Scienti......

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