Shorter v. Dollar, CIVIL ACTION NO. 3:11cv531-WHA
| Decision Date | 07 November 2011 |
| Docket Number | CIVIL ACTION NO. 3:11cv531-WHA |
| Parties | EDDRICK SHORTER, LATOYA MCMILLAN, A.M., a minor who sues by and through her mother and next friend Latoya McMillan, Plaintiffs, v. KIRBY DOLLAR, in his individual and official capacities, MIKE LOYLESS, in his individual and official capacities, RACHEL HOUSER, in her individual and official capacities, CITY OF PHENIX CITY, RAY SMITH, in his individual and official capacities, DANIEL DAVIS, in his individual and official capacities, JARRED BARR, in his individual and official capacities, Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
(WO)
This case is before the court on a Motion to Dismiss (Doc. # 28) filed by Defendants Kirby Dollar ("Dollar") and Mike Loyless ("Loyless") on August 19, 2011.
The Plaintiffs, Eddrick Shorter ("Shorter"), Latoya McMillan ("McMillan"), and A.M. (collectively "the Plaintiffs"), filed a Complaint in this court on May 5, 2011, alleging a multitude of claims against a multitude of defendants including Dollar and Loyless. The fivecounts that apply to Dollar and Loyless, both in their official and individual capacities, are as follows: Count I – excessive force in violation of the Fourth Amendment of the U.S. Constitution and brought pursuant to 42 U.S.C. § 1983; Count II – unlawful search and seizure in violation of the Fourth Amendment of the U.S. Constitution and brought pursuant to 42 U.S.C. § 1983; Count III – illegal entry in violation of the Fourth Amendment of the U.S. Constitution and brought pursuant to 42 U.S.C. § 1983; Count V – failure-to-intervene in violation of the Fourth Amendment of the U.S. Constitution and brought pursuant to 42 U.S.C. § 1983; and Count VII – false arrest and false imprisonment in violation of the Fourth Amendment of the U.S. Constitution and brought pursuant to 42 U.S.C. § 1983. Defendants Dollar and Loyless moved to dismiss the claims against them by invoking both absolute immunity, as to their official capacity claims, and qualified immunity, as to their individual capacity claims. On September 12, 2011 the Plaintiffs filed a Response to Dollar and Loyless's Joint Motion to Dismiss, and on September 19, 2011 Dollar and Loyless filed a Reply to the Response.
For reasons to be discussed, the Motion to Dismiss is due to be GRANTED in part, and DENIED in part.
The court accepts the plaintiff's allegations as true, Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), and construes the complaint in the plaintiff's favor, Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). In analyzing the sufficiency of pleading, the court is guided by a two-prong approach: one, the court is not bound to accept conclusory statements of the elements of a cause of action and, two, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to entitlement to relief. SeeAshcroft v. Iqbal, _ U.S. _, 129 S. Ct. 1937, 1949-50 (2009). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). To survive a motion to dismiss, a complaint need not contain "detailed factual allegations," but instead the complaint must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. The factual allegations "must be enough to raise a right to relief above the speculative level." Id. at 555.
The facts relevant to Dollar and Loyless as alleged in the Complaint are as follows: On or around October 30, 2009, the Plaintiffs were in their residence located at 1109 20th Street in Phenix City, Alabama. At around 1:45 p.m., the Plaintiffs were startled by someone who was knocking so violently on the door that "burst[s] of light" escaped between the door and its frame with each knock. (Doc. #1 ¶ 17). The door was connected to the living room, so only Shorter and A.M. heard the knocking since McMillan was in the bathroom taking a shower. Furthermore, the individual officer knocking proceeded in using vulgar language in commanding that the Plaintiffs open the door. Shorter opened the door long enough to tell the officer to stop beating on the door since A.M., age 3, was present and growing fearful. The shouting and banging continued until officers exploded into the apartment by breaking down the door and spreading out throughout the home.
Loyless and Dollar were two of the officers who entered the Plaintiffs' residence during that explosive entry. Each of the officers had their guns drawn and pointed at Shorter. Defendant Jarred Barr ("Barr"), a police officer with whom Loyless and Dollar were working,placed his gun within inches of Shorter's face and restrained Shorter's hands. After Shorter complied with Barr's requests, Dollar struck Shorter in the back of his head with his gun causing Shorter to collapse to the ground and lose consciousness. While Shorter was on the ground and restrained in handcuffs, Dollar, Loyless, Barr, and Defendant Rachel Houser ("Houser") all began beating Shorter with their batons on the back of his legs. These beatings left bruises, lacerations, and contusions on Shorter. Soon after the beating, the officers took McMillan and Shorter to separate officers' cruisers.
While in the cruiser, an officer referred to as "Sparky" threatened to taze Shorter but was restrained by an unidentified officer. Instead, "Sparky" started the car and lowered a rear window. Then he sprayed Shorter in the face with pepper spray and closed the window and car door. Shorter's mother was witness to the after effects of the pepper spray on Shorter, which included "breathing heavily, gasping for air, and salivating all in an attempt to breathe. (Doc. #1 ¶ 32).
Shorter and McMillan were incarcerated because of the allegedly illegal arrests made by Dollar, Loyless, Barr, and Hausen. Furthermore, Shorter did not receive appropriate medical treatment while in the Phenix City jail for his injuries suffered at the hands of Dollar, Loyless, Barr, and Hausen. Also, A.M. suffered severe anxiety as a result of the incidents surrounding the arrest.
In addition, the Plaintiffs' Complaint also asserts that the Defendants did not have a search warrant for the Plaintiff's residence, but, instead, had an arrest warrant naming Navansley "Tat" Smith, at the address 47 Springvalley Road in Russell County, for 1st Degree Rape. To support their claim, the Plaintiffs cited language from Dollar's affidavit in support of the defaultjudgment from a state forfeiture matter related to the Plaintiffs' state criminal trials. (Doc. #1 ¶ 43). Plaintiff also further notes that Dollar's affidavit contained the wrong date (October 10 instead of the proper October 30). (Doc. #1 ¶ 45).
The Plaintiffs allege that the Defendants swarmed the outside of the house before Officer Barr began banging on the front door. The Plaintiffs allege that the Defendants, without lawful reason to do so, separated an exterior sanitary sewage drain pipe1 from the Plaintiffs' residence and discovered a small amount of marijuana. After arresting the Plaintiffs, the Defendants searched the entire home, without a search warrant, and collected items of personal property including $600 cash and a handgun. Even though the Defendants arrived at the Plaintiffs' residence at 1:45 p.m., the search warrant was not issued until about 3:45 pm which was after the entry to the residence, the arrests of Shorter and McMillan, the search of the residence, and the seizure of property.
Furthermore, the search warrant contains information in conflict with Dollar's aforementioned affidavit. For example, Dollar's Return and Inventory form attached to the search warrant, explains that the persons and places to be searched took place at 4:00 p.m. on October 30, 2009 at 1109 20th Street, Phenix City, AL. (Doc. #1 ¶ 54). This is inconsistent with his affidavit which provides that the arrest warrant was executed on October 10, 2009 at 47 Springvalley Road in Russell County. (Doc. #1 ¶ 43).
The Plaintiffs maintain that at no point in time were they suspects for any criminal investigation, (Doc. #1 ¶ 71), and that at all times were Dollar and Loyless acting "within theline and scope of their authority as officers of the Sheriff of Russell County." (Doc. #1 ¶ 58).
The claims against Dollar and Loyless in their official capacity as Russell County Sheriff's Deputies are due to be dismissed. The case law in Alabama makes it clear that sheriffs are state officers. See, e.g., Parker v. Amerson, 519 So. 2d 442, 442 (Ala.1987). "Alabama sheriffs, when executing their law enforcement duties, represent the State of Alabama, not their counties." McMillian v. Monroe County, 520 U.S. 781, 793 (1997). Furthermore, deputy sheriffs are the alter egos of sheriffs and are also given state sovereign immunity under the Eleventh Amendment when acting in their official capacity. Phillips v. Thomas, 555 So. 2d 81, 83 (Ala. 1989).
In addition to the case law protecting Alabama sheriffs and deputy sheriffs in their official capacity, the Plaintiffs concede in their response that the official capacity claims against Dollar and Loyless are due to be dismissed. Accordingly, the court dismisses the Plaintiffs' claims as they apply to the Defendants' official capacity.
Qualified immunity is a protection designed to allow government officials to avoid the expense and disruption of trial. Ansley v. Heinrich, 925 F.2d 1339, 1345 (11th Cir. 1991). As a preliminary matter, the court must determine whether the public official was acting within the scope of his discretionary authority at the time the allegedly wrongful acts...
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