Missildine v. City of Montgomery, Civ. A. No. 95-D-526-N.
| Decision Date | 20 November 1995 |
| Docket Number | Civ. A. No. 95-D-526-N. |
| Citation | 907 F. Supp. 1501 |
| Parties | Carolyn MISSILDINE, on behalf of herself, as administratrix of the estate of Robert Missildine and on behalf of the minor children of Robert Carl Missildine, Plaintiff, v. The CITY OF MONTGOMERY, a Municipal Corporation, The City of Montgomery Police Department an independent operating unit of the City of Montgomery, Emory Folmar, Mayor of the City of Montgomery, John Wilson, Chief of Montgomery Police Department, D.F. Phillips, and R.L. Dettmar, Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
Maurice S. Bell, David George Flack, Montgomery, AL, for plaintiff.
Thomas C. Tankersley, City of Montgomery Legal Department, Montgomery, AL, George B. Azar, Montgomery, AL, for defendants.
DE MENT, District Judge.
Before the court is defendants D.F. Phillips and R.L. Dettmar's motion filed May 15, 1995, to dismiss the above styled-case. Also before the court is defendants City of Montgomery, City of Montgomery Police Department, Emory Folmar and John Wilson's motion filed May 19, 1995, to dismiss the above styled-case. The plaintiff responded in opposition to both motions on June 14, 1995. Because the motions contain identical arguments, the court will address them simultaneously.
The court will also address defendants D.F. Phillips and R.L. Dettmar's motion filed August 10, 1995, to dismiss the plaintiff's amended complaint. The plaintiff responded in opposition of said motion on August 28, 1995. After careful consideration of the arguments of counsel, the relevant case law and the record as a whole, the court finds that the defendants' motions are due to be granted.
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to dismiss a complaint on the ground that the plaintiff has failed to state a claim upon which relief may be granted. A Rule 12(b)(6) motion questions the legal sufficiency of a complaint; therefore, in assessing the merit 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., Sofarelli v. Pinellas County, 931 F.2d 718, 721 (11th Cir.1991); see also Brower v. County of Inyo, 489 U.S. 593, 598, 109 S.Ct. 1378, 1382, 103 L.Ed.2d 628 (1989).
On a motion to dismiss for failure to state a claim upon which relief may be granted, the movant "sustains a very high burden."1 Jackam v. Hospital Corp. of America Mideast, Ltd., 800 F.2d 1577, 1579 (11th Cir.1986) (citing Currie v. Cayman Resources Corp., 595 F.Supp. 1364, 1376 (N.D.Ga.1984)). The Court of Appeals for the Eleventh Circuit has held, "motions to dismiss for failure to state a claim should be denied unless it appears beyond doubt that the plaintiff can prove no set of facts in support of its claims." Jackam, 800 F.2d at 1579 (quoting Bracewell v. Nicholson Air Servs., Inc., 680 F.2d 103, 104 (11th Cir. 1982)); see also Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). Furthermore, the court notes that in considering whether a plaintiff's complaint, and each count thereof, fails to state a claim upon which relief can be granted, the court looks to not whether the plaintiff may ultimately prevail on the merits, but whether the "allegations are sufficient to allow them to conduct discovery in an attempt to prove their allegations." Jackam, 800 F.2d at 1579-80.
The court also stresses that on a motion to dismiss for lack of subject matter jurisdiction, Rule 12(b)(1) of the Federal Rules of Civil Procedure, the nonmoving party has the burden of showing that it properly invoked the court's jurisdiction. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980).2 In ruling on the motion, the court is to "consider the allegations of the complaint as true." Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981).
This action is brought by Carolyn Missildine on her own behalf, on behalf of the estate of her son, Robert Carl Missildine (hereafter "Mr. Missildine"), and on behalf of his four minor children. The plaintiff essentially alleges that two Montgomery City Police Officers, defendants Phillips and Dettmar, used excessive force in arresting Mr. Missildine, thereby violating Mr. Missildine's constitutional rights and violating certain state laws.
On June 29, 1993, the two officers allegedly assaulted and severely beat Mr. Missildine as he attempted to run to the home of his sister where his brother and sister-in-law were staying. Mr. Missildine allegedly suffered serious physical and mental injuries as a proximate result of said beating, i.e. a broken nose, facial traumas together with several lacerations and bruises which required immediate medical treatment and subsequent hospitalization. In fact, the injuries were so severe that Mr. Missildine required surgery.
The plaintiff also alleges that on June 29, 1993, subsequent to the beating of Mr. Missildine, defendant Phillips fabricated two separate criminal complaints regarding the events which took place on June 29, 1993. The plaintiff contends that the allegations set forth by defendant Phillips were false or in reckless disregard of the truth.
On August 9, 1994, Mr. Missildine died of an apparent suicide. The plaintiff contends that if Mr. Missildine committed suicide, it was due to the brutal beating he suffered at the hands of the two police officers. Before his tragic death, Mr. Missildine did not file a lawsuit, but rather notified the City of Montgomery, Alabama, pursuant to § 11-47-23 of the Code of Alabama.
The defendants move the court to dismiss the plaintiff's complaint on the grounds that the claims alleged therein abated with the death of Mr. Missildine and that the defendants are shielded by qualified immunity from the § 1983 action against them in their individual capacities. Since the abatement issue is dispositive of the motions, the court will not discuss the defendants' contention of qualified immunity.
The defendants contend that on its face, the plaintiff's complaint establishes that all of the claims alleged therein abated with the death of Robert Missildine. Specifically, the defendants assert that before his death, Mr. Missildine filed no action based on his alleged injuries of June 29, 1993, and therefore, this action died with him. In support thereof, the defendants argue that "a claim sounding in tort for which no action has been filed does not survive death in favor of the personal representative." See Gillilan v. Federated Guaranty Life Ins. Co., 447 So.2d 668, 674 (Ala.1984) (citing Ala.Code § 6-5-462). Rather, "the action dies with the person." McDowell v. Henderson Mining Co., 160 So.2d 486, 488 (Ala.1963). On the other hand, the plaintiff contends that Mr. Missildine commenced this action on December 3, 1993, before his death, pursuant to Ala.Code §§ 11-47-23 and XX-XX-XXX thru 192. As such, the plaintiff asserts that upon Mr. Missildine's death the action survived under § 6-5-462 of the Code of Alabama.
At the outset, the court notes that it will refer to state law to determine if this action has survived the death of Mr. Missildine. See Gilmere v. City of Atlanta, 737 F.2d 894, 898 n. 8 (11th Cir.1984), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986); Hess v. Eddy, 689 F.2d 977 (11th Cir.1982), cert. denied, 462 U.S. 1118, 103 S.Ct. 3085, 77 L.Ed.2d 1347 (1983). Ala. Code § 11-47-23 provides in part:
All claims against the municipality ... shall be presented to the clerk for payment within two years from the accrual of said claim or shall be barred. Claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred.
Further, Ala.Code § 11-47-192 requires that a sworn statement describing the incident be filed with the clerk before any relief will be awarded. The Supreme Court of Alabama has held that these two provisions are to be read together. Howell v. City of Dothan, 234 Ala. 158, 174 So. 624, 628 (1937). Ala. Code § 6-5-462 basically provides that all claims not of an equitable nature which are filed qualify for survival. Thus, the essential question before the court is whether Mr. Missildine's presentment of his claim to the Montgomery City Clerk qualified his claims against the City for survival under § 6-5-462.
Both the Eleventh Circuit and the Supreme Court of Alabama have answered this question in holding that the tort claim notification requirement set forth in the above provisions does not apply to § 1983 actions. Acoff v. Abston, 762 F.2d 1543, 1546 (11th Cir.1985); Morrow v. Town of Littleville, 576 So.2d 210, 216 (Ala.1991); see also Patrick v. City of Florala, 793 F.Supp. 301, 303 (M.D.Ala.1992). The court also notes that under Alabama law, as the defendants have correctly cited, "a claim sounding in tort for which no action has been filed does not survive death in favor of the personal representative." Gillilan v. Federated Guaranty Life Ins. Co., 447 So.2d 668, 674 (Ala. 1984) (citing Ala.Code § 6-5-462). "The action dies with the person." McDowell v. Henderson Mining Co., 276 Ala. 202, 160 So.2d 486, 488 (1963). As a result of the foregoing authority, the court finds that Mr. Missildine's presentment of his claim to the Montgomery City Clerk did not qualify his claim for survival.
The plaintiff also contends that this action survives the death of Mr. Missildine under Alabama's wrongful death stat...
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