Morris v. Town of Lexington

CourtUnited States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
Citation915 F.Supp.2d 1246
Docket NumberCivil Action No. CV–11–S–1106–NW.
PartiesJerry MORRIS, Plaintiff, v. TOWN OF LEXINGTON, et al., Defendants.
Decision Date04 January 2013

915 F.Supp.2d 1246

Jerry MORRIS, Plaintiff,
TOWN OF LEXINGTON, et al., Defendants.

Civil Action No. CV–11–S–1106–NW.

United States District Court,
N.D. Alabama,
Northwestern Division.

Jan. 4, 2013.

[915 F.Supp.2d 1249]

Henry F. Sherrod, III, Henry F. Sherrod III, PC, Florence, AL, for Plaintiff.

C. Winston Sheehan, Ball Ball Matthews & Novak PA, Montgomery, AL, D. Wayne Rogers, Jr., Rogers & Associates, Birmingham, AL, David J. Canupp, George W. Royer, Jr., Lanier, Ford, Shaver & Payne, PC, J. Jeffery Rich, Sirote & Permutt PC, Huntsville, AL, Kendrick E. Webb, Webb & Eley PC, C. Richard Hill, Jr., Fritz Hughes & Hill LLC, Montgomery, AL, for Defendants.


C. LYNWOOD SMITH, JR., District Judge.

Plaintiff, Jerry Morris, accuses six municipal law enforcement officers of violating his federal- and state-law rights while investigating a 911 telephone call.1 During

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the course of the investigation, plaintiff was arrested for punching an officer who refused to leave his home. 2 As a result of the incident, plaintiff was indicted by a state-court grand jury on two counts of assault in the second degree and one count of resisting arrest, but he was subsequently acquitted in a criminal trial. 3

Plaintiff asserts claims under the United States Constitution through the remedial vehicle of 42 U.S.C. § 1983 for unlawful entry, illegal seizure, unlawful search, malicious prosecution, and excessive force.4 In addition, plaintiff asserts supplemental state-law claims for false arrest/false imprisonment, assault and battery/excessive force, trespass (entry), trespass (search), negligence, wantonness, and malicious prosecution. 5See28 U.S.C. § 1367. Plaintiff seeks relief against the individual officers and their municipal employers.6

This action is before the court upon motions to dismiss various portions of the second amended complaint by four of the six individual defendants and both of the municipal defendants.7 Upon consideration, this court will grant the motions to dismiss in part, and deny the motions in part. Further, this court will order plaintiff to show cause why his claims against Town of Anderson Reserve Police Officer Matt Wigginton should not be dismissed for failure to prosecute.


Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a complaint for, among other things, “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). That rule must be read together with Rule 8(a), which requires that a pleading contain only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). While that pleading standard does not require “detailed factual allegations,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 550, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), it does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citations omitted).

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.” [ Bell Atlantic Corp., 550 U.S.] at 570, 127 S.Ct. 1955. 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. Id., at 556, 127 S.Ct. 1955. 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. Ibid. 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.’ ” Id., at 557, 127 S.Ct. 1955 (brackets omitted).

Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (alteration supplied).

Even though the Eleventh Circuit long held claims asserted under § 1983 against

[915 F.Supp.2d 1251]

individual officers to a higher-than-usual standard— see, e.g., GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359 (11th Cir.1998) (observing that “this circuit ... has tightened the application of Rule 8 with respect to § 1983 cases in an effort to weed out nonmeritorious claims”)—the Circuit's opinion in Randall v. Scott, 610 F.3d 701 (11th Cir.2010), observes that utilization of such a heightened pleading standard is no longer warranted, in light of the plausibility requirement articulated in the Supreme Court's Iqbal opinion.

[Even though] the Iqbal opinion concerns Rule 8(a)(2) pleading standards in general, the Court specifically describes Rule 8(a)(2) pleading standards for actions regarding an unconstitutional deprivation of rights. The defendant federal officials raised the defense of qualified immunity and moved to dismiss the suit under a 12(b)(6) motion. The Supreme Court held, citing Twombly, that the legal conclusions in a complaint must be supported by factual allegations, and that only a complaint which states a plausible claim for relief shall survive a motion to dismiss. The Court did not apply a heightened pleading standard.

While Swann [ v. Southern Health Partners, Inc., 388 F.3d 834 (11th Cir.2004) ], GJR, and Danley [ v. Allen, 540 F.3d 1298 (11th Cir.2008) ] reaffirm application of a heightened pleading standard for § 1983 cases involving defendants able to assert qualified immunity, we agree ... that those cases were effectively overturned by the Iqbal court. Pleadings for § 1983 cases involving defendants who are able to assert qualified immunity as a defense shall now be held to comply with the standards described in Iqbal. A district court considering a motion to dismiss shall begin by identifying conclusory allegations that are not entitled to an assumption of truth-legal conclusions must be supported by factual allegations. The district court should assume, on a case-by-case basis, that well pleaded factual allegations are true, and then determine whether they plausibly give rise to an entitlement to relief.

Randall, 610 F.3d at 709–10 (bracketed alterations and emphasis supplied).


As always is the case in the context of ruling upon a motion to dismiss, the district court is required to assume that

the facts set forth in the plaintiff's complaint are true. See Anza [ v. Ideal Steel Supply Corp., 547 U.S. 451, 453, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006) ] (stating that on a motion to dismiss, the court must “accept as true the factual allegations in the amended complaint”); Marsh v. Butler County, 268 F.3d 1014, 1023 (11th Cir.2001) ( en banc ) (setting forth the facts in the case by “[a]ccepting all well-pleaded factual allegations (with reasonable inferences drawn favorably to Plaintiffs) in the complaint as true”). Because we must accept the allegations of plaintiff's complaint as true, what we set out in this opinion as “the facts” for Rule 12(b)(6) purposes may not be the actual facts.

Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1281 n. 1 (11th Cir.2006) (alterations supplied).

In the early morning hours of April 19, 2009, a highly intoxicated woman who had been abandoned on plaintiff's property called 911 to request assistance, saying that she did not know where she was and had no means of transportation. 8 Four of

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the six individual defendants initially responded to the call: i.e., Lee Bradford, a police officer for the Town of Lexington, Alabama; 9 Mark Bowers, the police chief for the Town of Anderson, Alabama; and, Matt Wigginton and Jan Montgomery, both of whom were “reserve” police officers for the town of Anderson.10

During her 911 telephone call and subsequent conversations with the four officers, the woman did not make any accusations against plaintiff.11 Instead, she claimed “vaguely and generally” that she was in danger, and that someone had been beating plaintiff's horses.12 While the woman sat on plaintiff's porch in a chair, the officers knocked on his door.13

Eventually, plaintiff was awakened by his girlfriend and came to the door. 14 When the officers asked about the woman, plaintiff responded that he did not know her, but that he knew her sister.15 When told of the woman's statement that “someone” had been beating his horses, plaintiff expressed concern for the horses and said that, after he placed some boots on his feet, he would go check on them.16

In the presence and hearing of the other three officers, Lexington Police Officer Lee Bradford told plaintiff that he was “not going anywhere.” 17 Plaintiff was then standing inside his own home, on his side of the front door threshold.18 Despite Bradford's order that he “not go [ ] anywhere,” plaintiff turned and walked back into his home, but he did not attempt to close the door.19

Bradford, Anderson Police Chief Mark Bowers, and Anderson Reserve Police Officer Matt Wigginton followed plaintiff into his home without a warrant and, allegedly, without either probable cause or any good reason for doing so. 20 Plaintiff objected to the three officers' presence and repeatedly told them to leave his home, and to obtain a warrant before coming back. 21

Eventually, Anderson Police Chief Mark Bowers and Anderson Reserve Police Officer Matt Wigginton walked outside, but Lexington Police Officer Lee Bradford remained, stopping in plaintiff's doorway and holding the door open. 22 Plaintiff told Bradford that he was going to shut the door, and slowly began to push the door shut, but Bradford refused to move out of the doorway.23 During the verbal exchange between plaintiff and Bradford, Bowers and Wigginton remained on the porch.24 At some point, Bradford shoved

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plaintiff, and plaintiff punched Bradford one time.25

Defendants James Distefano and Patrick Davis—both of whom were employed by Lauderdale County as Deputy Sheriffs—had arrived on the scene after Bradford, Bowers, and...

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