Gregory v. Trussville, Alabama, City of

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JONATHAN GREGORY, et al., )

)

Plaintiff, )

)

v. ) Case No. 2:24-cv-214-GMB

)

CITY OF TRUSSVILLE, )

ALABAMA, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiffs Jonathan, Amy, and Gavin Gregory bring claims pursuant to 42

U.S.C. § 1983 and state law against the City of Trussville, Alabama (“Trussville”),

Police Chief Eric Rush, Deputy Police Chief David Morrette, and Officers James

McCool, Richard Lovell, Chad Jones, and Anthony Martin. Doc. 49. The parties

have consented to the jurisdiction of a United States Magistrate Judge pursuant to

28 U.S.C. § 636(c). Doc. 19. Before the court is the Defendants’ Motion to Dismiss

Plaintiffs’ Verified Amended Complaint Pursuant to Federal Rules of Civil

Procedure 8 and 12(b)(6).1 Doc. 50. The motion is fully briefed (Docs. 50–53, 55–

1 Although the title of the motion references Federal Rule of Civil Procedure 12(b)(5) and the body

states the amended complaint is due to be dismissed for insufficient service of process (Doc. 50),

the briefs do not make any argument about the validity of service. Accordingly, the court deems

this argument to have been abandoned. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,

1330 (11th Cir. 2004) (“[A] legal claim or argument that has not been briefed before the court is

deemed abandoned and its merits will not be addressed.”).

57, 60) and ripe for decision. For the following reasons, the motion is due to be

granted in part and denied in part.

I. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of all or

some of the claims in a complaint if the allegations fail to state a claim upon which

relief may be granted. Federal Rule of Civil Procedure 8(a)(2) requires only “a short

and plain statement of the claim showing that the pleader is entitled to relief,” which

is designed to “give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court assumes

that the factual allegations in the complaint are true and gives the plaintiff the benefit

of all reasonable factual inferences. Hazewood v. Foundation Fin. Grp., LLC, 551

F.3d 1223, 1224 (11th Cir. 2008). However, “courts ‘are not bound to accept as true

a legal conclusion couched as a factual allegation.’” Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986));

see also Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009) (“Rule 8 marks a notable

and generous departure from the hyper-technical, code-pleading regime of a prior

era, but it does not unlock the doors of discovery for a plaintiff armed with nothing

more than conclusions.”). Nor is it proper to assume that a plaintiff can prove facts

she has not alleged or that the defendants have violated the law in ways that have

not been alleged. Twombly, 550 U.S. at 563 n.8 (citing Assoc. Gen. Contractors of

Cal., Inc. v. Carpenters, 459 U.S. 519, 526 (1983)).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not

need detailed factual allegations, a plaintiff’s obligation to provide the grounds of

his entitlement to relief requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at

555 (citations, brackets, and internal quotation marks omitted). “Factual allegations

must be enough to raise a right to relief above the speculative level. . . .” Id. Thus,

“a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face,’” i.e., its “factual content . . . allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678 (citations omitted).

II. STATEMENT OF FACTS

Early in the morning on February 22, 2022, Jonathan Gregory, his wife Amy,

and his son Gavin “were suddenly awakened by a loud noise without any warning

by a large contingent of Trussville Police officers who kicked in their front door at

their home residence while purportedly serving a search warrant.”2 Doc. 49 at 5.

Officers Jones, McCool, Lovell, and Martin knocked Jonathan Gregory to the

ground as he tried to open the door, dislocating his left shoulder. Doc. 49 at 5, 35,

2 The Gregorys allege that the “search warrant may be invalid because it was backdated, or the

police may have altered [it] in some way.” Doc. 49 at 8.

42. The officers then dragged him out to the porch, cuffed him, and “threw him

down eight steps onto the sidewalk and on the ground.” Doc. 49 at 5–6; see also

Doc. 49 at 35, 42. While Jonathan was handcuffed on the ground, McCool “put his

knee on Jonathan’s neck” even though he begged “the officer to get off his neck to

no avail.” Doc. 46 at 6, 35–36, 43. These actions “severely injured [Jonathan’s]

pelvis, injured his shoulder, knocked his tooth loose[,] and cracked several teeth,”

while also bruising and fracturing his neck in several places. Doc. 49 at 6.

Jones, McCool, Lovell, and Martin dragged Amy Gregory “out of her

bedroom and handcuffed her in her pajamas.” Doc. 49 at 36, 43. “They knocked her

to the floor” and “then took her to the front steps making her stand in the cold.” Doc.

49 at 6, 36, 43. Despite Jonathan’s “pleading with the officers not to harm his wife

because she has metal rods in her back and leg from a previous surgery,” Amy “was

dropped to the ground in handcuffs” and “was injured and has suffered constant pain

from this trauma.” Doc. 49 at 6, 36, 43.

Jones, McCool, Lovell, and Martin also went to Gavin Gregory’s room,

flashed “the laser scope lights of their assault rifles and guns in his eyes,” and woke

him from his sleep. Doc. 49 at 6, 36, 43. They “yank[ed] him out of bed by his

shoulder and thr[e]w him to the floor while screaming and yelling at him.” Doc. 49

at 6–7, 36, 43. They later “dr[u]g him out of the house in handcuffs” and threw him

on the ground in the front yard. Doc. 49 at 7, 36, 43.

The four officers then “ransacked the house and destroyed furniture and other

personal property that belonged” to the Gregory family. Doc. 49 at 7, 36. They also

forced Jonathan to open a safe that belonged to his brother and contained guns,

jewelry, and money. Doc. 49 at 7. Officers McCool, Martin, Jones, and Lovell

“dumped all the contents of the safe out on the floor” and “destroyed jewelry that

was in the safe by dumping it out on the floor[,] stepping on the jewelry[,] and

crushing some of it.” Doc. 49 at 7. At some point during the search, “some gold

coins and other jewelry went missing.” Doc. 49 at 7. The officers seized 16 guns,

“all registered [and] some of which were antique registered guns which belonged to

the extended Gregory family, not the Plaintiffs.” Doc. 49 at 7–8.

The officers arrested Jonathan Gregory and took him to the Trussville City

Jail. Doc. 49 at 8. They charged him with the possession of firearms and a small

amount of marijuana even though the marijuana belonged to Drew Thomas, who had

been staying in the Gregorys’ basement. Doc. 49 at 8. Amy and Gavin Gregory were

not arrested, taken into custody, or charged with a crime. Doc. 49 at 8.

“The guns, jewelry, gold coins, and money were never returned.” Doc. 49 at

9. The “items of personal property seized from their home were lost, stolen, or

otherwise disposed of by members of the Trussville Police Department without

Plaintiffs’ knowledge or permission.” Doc. 49 at 10. And the complaint alleges that

“it is the pattern and practice of the Trussville Police Department and/or drug task

force to illegally seize property of defendants on misdemeanor offenses and never

file civil forfeiture proceedings or not include all seized property in the civil

forfeiture proceeding.” Doc. 49 at 10.

The Gregorys and other family members complained to the Trussville Police

Department “but no action was taken.” Doc. 49 at 9. Since making the complaints,

certain “members of the police department” have harassed the Gregorys. Doc. 49 at

10. And “[b]ecause of the humiliation and indignities suffered by the Gregorys, they

are hesitant to go into public places in and around the County of their residence.”

Doc. 49 at 10.

III. DISCUSSION

The complaint contains 21 counts grouped by defendant. The first eight

counts are stated against Trussville: (1) 14th and 5th Amendment violations under

42 U.S.C. § 1983; (2) conversion; (3) 4th Amendment violations for excessive force

under § 1983; (4) a 4th Amendment violation for illegal search and seizure under

§ 1983; (5) negligent and/or wanton hiring, training, and supervision; (6) malicious

prosecution; (7) defamation; and (8) outrage/intentional infliction of emotional

distress. Doc. 49 at 11–24. The next six counts are against Chief Rush and Deputy

Chief Morrette: (9) negligent and wanton hiring, training, and supervision;

(10) defamation; (11) conversion; (12) 14th and 5th Amendment violations under

§ 1983; (13) malicious prosecution; and (14) outrage/intentional infliction of

emotional distress. Doc. 49 at 24–32. The final set of claims are stated against

Officers McCool, Lovell, Jones and Martin in their individual capacities: (15) 14th

and 5th Amendment violations under § 1983; (16) conversion; (17) 4th Amendment

violations for excessive force under § 1983; (18) a 4th Amendment violation for

illegal search and seizure under § 1983; (19) malicious prosecution;

(20) outrage/intentional infliction of emotional distress; and (21) assault and

battery/excessive force. Doc. 49 at 32–44. In separate briefs, the defendants seek to

dismiss the amended complaint in its entirety as a shotgun pleading, and also move

to dismiss some, but not all, of the individual claims on separate grounds. See Docs.

51–53.

The court will begin with the shotgun pleading argument, then address the

federal claims stated against each defendant, and end with a discussion of the state-

law claims.

A. Shotgun Pleading

A complaint, answer, or counterclaim that fails to comply with certain

specificity requirements of the Federal Rules of Civil Procedure—particularly Rules

8 and 10—is known as a shotgun pleading. See Vibe Micro, Inc. v. Shabanets, 878

F.3d 1291, 1320 (11th Cir. 2018). While there is no precise formula for a shotgun

pleading, a complaint might earn this label if it (a) includes multiple counts that each

adopt the allegations of all preceding counts; (b) contains “conclusory, vague, and

immaterial facts” unconnected to a particular cause of action; (c) fails to divide

different claims into separate counts; or (d) alleges “multiple claims against multiple

defendants without specifying which of the defendants are responsible for which

acts or omissions, or which of the defendants the claim is brought against.” Weiland

v. Palm Beach County Sheriff’s Off., 792 F.3d 1313, 1322–23 (11th Cir. 2015). “The

unifying characteristic of all types of shotgun pleadings is that they fail to one degree

or another, and in one way or another, to give the defendants adequate notice of the

claims against them and the grounds upon which each claim rests.” Id. at 1323. “At

the end of the day . . . the key question is whether the complaint includes enough

information to allow a defendant and the court to ‘readily determine’ if the complaint

states a plausible claim for relief.” Ray v. Gadson, 2023 WL 7228933, at *4 (N.D.

Ala. Nov. 2, 2023) (citing Weiland, 792 F.3d at 1326).

Upon review of the amended complaint, the court disagrees with the

defendants’ characterization that it is a shotgun pleading. While many of the

allegations are repetitive, conclusory, or immaterial, the federal rules do not require

precision in the drafting of complaints. The causes of action and factual allegations

here give adequate notice to the defendants of the factual basis for the Gregorys’

claims against them. See Weiland, 792 F.3d at 1323. And the amended complaint

does not allege “multiple claims against multiple defendants without specifying

which of the defendants are responsible,” as the defendants argue. Id. at 1326.

Instead, the amended complaint groups the relevant defendants together and—while

not perfect—allows for the grouped defendants to understand the claims stated

against them. Accordingly, the motion to dismiss will be denied to the extent the

defendants seek a dismissal of the amended complaint as a shotgun pleading.

B. Federal Claims

The Gregorys bring multiple federal claims against each set of defendants

pursuant to 42 U.S.C. § 1983. Section 1983 creates a private right of action to

vindicate violations of “rights, privileges, or immunities secured by the Constitution

and laws” of the United States. Under the terms of the statute, “[e]very person who

acts under color of state law to deprive another of a constitutional right [is]

answerable to that person in a suit for damages.” Rehberg v. Paulk, 566 U.S. 356,

361 (2012) (citation and internal quotation marks omitted).

1. Trussville (Counts 1, 3, and 4)

To hold a governmental entity like the City of Trussville liable under § 1983,

a plaintiff must show “(1) that his constitutional rights were violated; (2) that the

municipality had a custom or policy that constituted deliberate indifference to that

constitutional right; and (3) that the policy or custom caused the violation.”

McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). The governmental entity

“must be found to have itself caused the constitutional violation at issue; it cannot

be found liable on a vicarious liability theory.” Skop v. City of Atlanta, 485 F.3d

1130, 1145 (11th Cir. 2007) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

694–95 (1978)).

The complaint fails to state a § 1983 claim against Trussville because the

allegations do not establish an official policy or custom that caused a violation of the

Gregorys’ constitutional rights. Instead, the only relevant factual allegation in the

amended complaint is the claim that “it is the pattern and practice of the Trussville

Police Department and/or drug task force to illegally seize property of defendants

on misdemeanor offenses and never file civil forfeiture proceedings or not include

all seized property in the civil forfeiture proceeding.” Doc. 49 at 10. This allegation

is insufficient to state a claim.

The Gregorys must provide factual underpinnings for the legal conclusions in

the amended complaint. They may not simply use “labels and conclusions and a

formulistic recitation of the elements of a cause of action.” Twombly, 550 U.S. at

555 (citations, brackets, and internal quotation marks omitted). For this reason, their

bare allegations fall short of the pleading requirements. In other words, this single

sentence does not establish that Trussville had a custom or policy that constituted

deliberate indifference to the Gregorys’ constitutional rights or that the policy or

custom caused any alleged violations. Trussville’s motion to dismiss the federal

claims is due to be granted.

2. Chief Rush and Deputy Chief Morrette (Count 12)

“It is well established in this circuit that supervisory officials are not liable

under § 1983 for the unconstitutional acts of their subordinates on the basis of

respondeat superior or vicarious liability.” Hartley v. Parnell, 193 F.3d 1263, 1269

(11th Cir. 1999) (citation and quotation omitted). Indeed, to establish § 1983

liability, a plaintiff “must instead allege that the supervisor, through his own actions,

violated the Constitution.” Ingram v. Kubik, 30 F.4th 1241, 1254 (11th Cir. 2022);

Hartley, 193 F.3d at 1269. Therefore, when a supervisor did not personally

participate in the alleged constitutional violation, the plaintiff must demonstrate a

causal connection between the supervisor’s actions or inactions and the alleged

misconduct. Iqbal, 556 U.S. at 676; Ingram, 30 F.4th at 1254; Hartley, 193 F.3d at

1269. “A causal connection may be established when: (1) a ‘history of widespread

abuse’ puts the responsible supervisor on notice of the need to correct the alleged

deprivation, and he or she fails to do so; (2) a supervisor’s custom or policy results

in deliberate indifference to constitutional rights; or (3) facts support an inference

that the supervisor directed subordinates to act unlawfully or knew that subordinates

would act unlawfully and failed to stop them.” Mathews v. Crosby, 480 F.3d 1265,

1270 (11th Cir. 2007). This is an “extremely rigorous” standard. Piazza v. Jefferson

County, 923 F.3d 947, 957 (11th Cir. 2019).

The only federal claim against Rush and Morrette is for a violation of the

Takings Clause of the 5th Amendment. Doc. 49 at 28–29. Specifically, the Gregorys

claim that Rush and Morrette “directed the actions of the members of the City of

Trussville police department . . . who participated in the February 22, 2022, raid on

the [Gregorys’] home.” Doc. 49 at 28. The amended complaint goes on to allege

that Jones, McCool, Lovell, and Martin took jewelry, cash, guns, and other property

from the Gregory home “with the full knowledge and under the direction of

Defendants Rush and Morrette.” Doc. 49 at 29. Finally, the Gregorys allege that

“[n]ot all of the property has been returned to them” and that “[t]hese actions or

omissions took place with the full knowledge and supervision of Defendants Rush

and Morrette.” Doc. 49 at 29.

There are no allegations in the amended complaint that Rush or Morrette

personally participated in the alleged taking of the Gregorys’ property, so the

Gregorys must establish a causal connection between the supervisor’s actions or

inactions and the alleged misconduct. Mathews, 480 F.3d at 1270. As best the court

can tell, the Gregorys are attempting to establish that causal connection using the

third option above—that is, by showing facts that imply the supervisors directed

their subordinates to act unlawfully. The allegations, however, are insufficient.

The Gregorys rely on generic, conclusory statements that Rush and Morrette

had “full knowledge” of and directed the officers’ actions, or that the officers were

under the supervision of Rush and Morette. But the “extremely rigorous” standard

for supervisory liability requires the Gregorys to have factual support for the

inference that Rush and Morrette directed the officers to act unlawfully or knew that

the officers would act unlawfully and failed to stop them. See Piazza, 923 F.3d at

95. The amended complaint does not contain any specific factual allegations to

support its sweeping conclusions. The Eleventh Circuit has made clear that the court

does not need to accept as true “conclusory allegations, unwarranted deductions of

facts or legal conclusions masquerading as facts.” Oxford Asset Mgmt., Ltd., v.

Jaharis, 297 F. 3d. 1182, 1188 (11th Cir. 2002). For this reason, the court will grant

the motion to dismiss the federal claims against Rush and Morrette.

3. Officers McCool, Lovell, Jones, and Martin (Counts 17 and 18)

The officers claim that they are entitled to qualified immunity from the federal

claims asserted against them in the amended complaint. Doc. 53 at 12–13. Qualified

immunity protects government officials from civil liability as long as they were

acting within the scope of their discretionary authority and their conduct does not

violate the plaintiff’s clearly established federal constitutional rights. See Harbert

Int’l, Inc. v. James, 157 F.3d 1271, 1281 (11th Cir. 1998). “The defense of qualified

immunity aims to strike a balance between ‘the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials

from harassment, distraction, and liability when they perform their duties

reasonably.’” Taylor v. Taylor, 649 F. App’x 737, 742 (11th Cir. 2016). The burden

is on the defendant to show that he was operating within his discretionary authority,

but then the burden shifts to the plaintiff to show that qualified immunity should not

apply. See Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009).

The courts within the Eleventh Circuit ordinarily “conduct a two-step inquiry

to decide whether qualified immunity should be granted: (1) taken in the light most

favorable to the party asserting the injury, do the facts alleged show the officer’s

conduct violated a constitutional right[?]; and (2) if a constitutional right would have

been violated under the plaintiff’s version of the facts, . . . [was] the right . . . clearly

established[?]” Shuford v. Conway, 666 F. App’x 811, 815 (11th Cir. 2016). “Both

elements must be satisfied for an official to lose qualified immunity.” Fils v. City of

Aventura, 647 F.3d 1272, 1287 (11th Cir. 2011).

Based on the limited briefing before the court, an analysis of qualified

immunity is not appropriate at this time. Other than setting out boilerplate law, the

officers’ only substantive argument about immunity is the claim that “[i]t is

undisputed by the clear language of plaintiffs’ Verified Amended Complaint that all

the Trussville Police Officers were at all times acting under the color of law and

within the line and scope of their employment as a law enforcement officer for the

town of Trussville, and in fact plaintiffs concede as much in their Complaint.”

Doc. 53 at 13. The court assumes that this statement is the officers’ attempt to

establish that they were acting within their discretionary authority and to shift the

burden to the Gregorys to show that immunity should not apply.

But in addressing the alleged constitutional violations, the officers simply

conclude that “each individual Police Officer defendant is duly entitled to qualified

immunity against these purported federal constitutional violation allegations and the

suit itself.” Doc. 53 at 13. This conclusory argument does not address the factual

allegations surrounding the alleged constitutional violations in any manner. There

is no discussion of whether the officers’ actions amount to a taking, excessive force,

or unlawful search and seizure. Most significantly, to survive a motion to dismiss

based on qualified immunity, a complaint must allege the violation of a clearly

established constitutional right. St. George v. Pinellas County, 285 F.3d 1334, 1337

(11th Cir. 2002). While not a model of pleading, the amended complaint has done

so.

“There is no burden upon the district court to distill every potential argument

that could be made based upon the materials before it . . . . Rather, the onus is upon

the parties to formulate arguments.” Resol. Tr. Corp. v. Dunmar Corp., 43 F.3d 587,

599 (11th Cir. 1995) (citation omitted). This is true even when a defendant asserts

that he is entitled to qualified immunity. See Gennusa v. Canova, 748 F.3d 1103,

1116 (11th Cir. 2014) (holding that the district court was not required to address a

“single, passing reference” to a ground for qualified immunity where that reference

was “unaccompanied by any discussion or elaboration”). The defendants’ argument

for qualified immunity is brief and perfunctory. The motion to dismiss the federal

claims against these officers based on qualified immunity will be denied.

C. State-Law Claims

1. Peace Officer Immunity

McCool, Lovell, Jones, and Martin contend that they are entitled to peace

officer immunity for all of the state-law claims in the amended complaint. Doc. 53

at 14–16. Peace officer immunity derives from Alabama Code § 6-5-338(a), which

provides in pertinent part that “[e]very peace officer . . . shall have immunity from

tort liability arising out of his or her conduct in performance of any discretionary

function within the line and scope of his or her law enforcement duties.” The

Alabama Supreme Court has explained that “[t]he restatement of State-agent

immunity . . . in Ex parte Cranman . . . governs the determination of whether a peace

officer is entitled to immunity under § 6–5–338(a).” Ex parte City of Homewood,

231 So. 3d 1082, 1086 (Ala. 2017) (internal quotations and citations omitted). That

restatement is as follows:

A State agent shall be immune from civil liability in his or her personal

capacity when the conduct made the basis of the claim against the agent

is based upon the agent’s . . . exercising judgment in the enforcement

of the criminal laws of the State, including, but not limited to, law-

enforcement officers’ arresting or attempting to arrest persons . . . .

Notwithstanding . . . a State agent shall not be immune from civil

liability in his or her personal capacity (1) when the Constitution or

laws of the United States, or the Constitution of this State, or laws,

rules, or regulations of this State enacted or promulgated for the

purpose of regulating the activities of a governmental agency require

otherwise; or (2) when the State agent acts willfully, maliciously,

fraudulently, in bad faith, beyond his or her authority, or under a

mistaken interpretation of the law.

Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000), modified by Hollis v. City of

Brighton, 950 So. 2d 300 (Ala. 2006).

The peace officer immunity analysis is a burden shifting process. Stryker v.

City of Homewood, 2017 WL 3191097, at *16 (N.D. Ala. July 27, 2017). A peace

officer asserting immunity bears the initial burden of demonstrating that the

plaintiff’s claims arise from a function that would entitle him to immunity. Ex parte

City of Homewood, 231 So. 3d at 1087. To carry that burden, peace officers “must

establish (1) that they were peace officers (2) performing law-enforcement duties at

the time of the accident and (3) exercising judgment and discretion.” Id. “If they

can do so, the burden then shifts to [the plaintiff] to show that one of the Cranman

exceptions applies.” Id.

From the face of the amended complaint, the officers have made all three

necessary showings. First, as Trussville police officers, they were peace officers at

the time of the arrest, use of force, and seizure. See Stryker, 2017 WL 3191097, at

*17. Second, they were performing law-enforcement duties in executing the search

warrant, arresting Jonathan Gregory, and seizing items from his home. See id.;

see also Williams v. City of Dothan, Ala., 2015 WL 4635264, at *3 (M.D. Ala. Aug.

3, 2015). Finally, they were exercising judgment and discretion in effectuating the

arrest. See Swan v. City of Hueytown, 920 So. 2d 1075, 1079 (Ala. 2005) (“[A]rrests

and attempted arrests are generally classified as actions requiring an officer to

exercise judgment.”); see also Walker v. City of Huntsville, 62 So. 3d 474, 498 (Ala.

2010) (holding that police officers sued for “failure to obtain medical treatment” for

an arrestee were “exercising judgment with respect to [the plaintiff’s] arrest and

performing a discretionary function in the line and scope of their law-enforcement

duties within the meaning of § 6-5-338”).

The burden therefore shifts to the Gregorys to identify factual allegations that

plausibly demonstrate an exception to this immunity. Ex parte City of Homewood,

231 So. 3d at 1087. When viewed in the light most favorable to the Gregorys, the

factual allegations of the amended complaint at least plausibly support the

conclusion that the officers committed the allegedly tortious conduct willfully,

maliciously, fraudulently, in bad faith, beyond their authority, or under a mistaken

interpretation of the law. For example, the amended complaint alleges that the

officers dislocated Jonathan’s left shoulder, threw him down eight steps onto the

sidewalk while handcuffed, and caused injuries to his shoulder, pelvis, and teeth.

Doc. 49 at 42. The amended complaint also claims that an officer put his knee on

Jonathan’s neck after he was handcuffed and on the ground. Doc. 49 at 43. For this

reason, the motion to dismiss the state-law claims against the officers in their

individual capacities on the basis of peace officer immunity will be denied at this

time.

Additionally, prudential considerations weigh against a dismissal based on

peace officer immunity at such an early stage in the proceedings. The Alabama

Supreme Court has recognized that a “motion to dismiss is typically not the

appropriate vehicle by which to assert . . . State-agent immunity and . . . normally

the determination as to the exercise of such a defense should be reserved until the

summary judgment stage, following appropriate discovery.” Ex parte Bitel, 45 So.

3d 1252, 1255 (Ala. 2010) (quoting Ex parte Ala. Dep’t of Mental Health, 837 So.

2d 808, 813–14 (Ala. 2002)). Peace officer immunity’s burden shifting scheme is

necessarily a fact-intensive inquiry that, in most cases, will require a reviewing court

to go beyond the four corners of the complaint. Alabama law thus contemplates that

summary judgment proceedings are more appropriate for an immunity defense

except in the most obvious circumstances. See Ex parte Bitel, 45 So. 3d at 1255.

2. Conversion (Counts 2, 11, and 16)

The amended complaint brings claims for conversion against all six

defendants. To establish a claim of conversion under Alabama law, a plaintiff must

show “a wrongful taking, an illegal assumption of ownership, an illegal use or

misuse of another’s property, or a wrongful detention or interference with another’s

property.” Ex parte Anderson, 867 So. 2d 1125, 1129 (Ala. 2003) (citations omitted).

And “the plaintiff must establish that the defendant converted specific personal

property to the defendant’s own use and beneficial enjoyment.” Huntsville Golf

Dev., Inc. v. Ratcliff, Inc., 646 So. 2d 1334, 1336 (Ala. 1994).

The amended complaint fails to state a claim for conversion. There are no

specific factual allegations that any of the defendants “converted specific personal

property to the defendant’s own use and beneficial enjoyment.” Id. Instead, the

allegations merely state that: Trussville, Rush, and Morrette “seized money and

other property including guns[,] . . . jewelry” and gold coins and “converted the

money seized . . . for the use and possession of the City for over a year”; and Jones,

McCool, Lovell, and Martin “have yet to return some of the Plaintiffs’ property,

including cash, jewelry, guns, power equipment, and a gold coin collection” and

“converted the Plaintiffs’ missing property for their own use.” Doc. 49 at 13, 14, 27,

34. These allegations amount to nothing more than “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556

U.S. at 678. Without any factual allegations about how any of the defendants

converted the property for their own use and beneficial enjoyment, the amended

complaint fails to state a claim for conversion against any defendant. These claims

are due to be dismissed.

3. Negligent Hiring, Training, Supervision (Counts 5 and 9)

The Gregorys bring claims for negligent hiring, training, and supervision

against Trussville, Rush, and Morrette. These defendants argue that the claims

should be dismissed because there is no cause of action under Alabama law

actionable against an individual supervisor for the tort of wrongful hiring, training,

or supervision. The court agrees.

Alabama Code § 11-47-190 permits a plaintiff to sue a municipality for the

negligence of its employees: “No city or town shall be liable for damages for injury

done to or wrong suffered by any person . . . , unless such injury or wrong was done

or suffered through the neglect, carelessness or unskillfulness of some agent, officer

or employee of the municipality engaged in work therefor and while acting in the

line of his or her duty[.]” Accordingly, “[m]unicipal liability under Section 11-47-

190 is based on the doctrine of respondeat superior.” Ott v. City of Mobile, 169 F.

Supp. 2d 1301, 1314 (S.D. Ala. 2001) (citing City of Lanett v. Tomlinson, 659 So.

2d 68, 70 (Ala. 1995)). Before a city can be liable under that doctrine, one or more

of its employees must be liable for a tort. Id.

Under Alabama law, the tort of negligent supervision or training of an officer

requires the existence of a master-servant relationship between the officer and his

supervisor. See Ott, 169 F. Supp. 2d at 1314. As a result, a plaintiff who seeks to

sue a municipality for negligent training or supervision “must show that Alabama

law recognizes a cause of action against a supervisory employee for the negligent

training or supervision of a subordinate”—in this instance, the police officer accused

of misconduct. Id. However, a supervisor ordinarily “is not the master of a

subordinate, nor is the subordinate the servant of the supervisor; rather, as Alabama

cases make plain, the status of ‘master’ is restricted to one who is actually or

essentially the employer of the servant.” Ott, 169 F. Supp. 2d at 1314 (citing Tyson

Foods, Inc. v. Stevens, 783 So. 2d 804, 806 (Ala. 2000); Hauseman v. Univ. of Ala.

Health Servs. Found., 793 So. 2d 730, 732 (Ala. 2000)). Thus, as in Ott, id., this

court is “satisfied that no such cause of action exists” for Rush and Morrette, and

thus there can be no such cause of action against Trussville.

Even assuming the presence of a master-servant relationship, employer

liability for negligent supervision or training also “requires, among other elements,

proof of the employer’s actual or constructive awareness of the employee’s

incompetency.” Ott, 169 F. Supp. 2d at 1315 (citing Big B, Inc. v. Cottingham, 634

So. 2d 999, 1002 (Ala. 1993), abrogated on other grounds by statute as stated in

Horton Homes, Inc. v. Brooks, 832 So. 2d 44, 57 (Ala. 2001)). The amended

complaint does not include either element. There are no allegations that Chief Rush

or Deputy Chief Morrette had actual or constructive awareness of the officers’

alleged incompetence. Accordingly, these claims must be dismissed.

4. Defamation (Counts 7 and 10)

The Gregorys assert claims for defamation against Trussville, Chief Rush, and

Deputy Chief Morrette. To establish a claim for defamation under Alabama law, a

plaintiff must prove: “(1) a false and defamatory statement concerning the plaintiff;

(2) an unprivileged communication of that statement to a third party; (3) fault

amounting at least to negligence on the part of the defendant; and (4) either

actionability of the statement irrespective of special harm or the existence of special

harm caused by the publication of the statement.” McCaig v. Talladega Pub. Co.,

Inc., 544 So. 2d 875, 877 (Ala. 1989).

The amended complaint does not state a claim for defamation because it does

not identify or explain the statements made by Trussville, Rush, or Morrette. The

only relevant allegations (which are identical against each defendant) are that the

defendants “falsely accused Plaintiffs of hoarding illegal guns and drugs at their

home” and that this “untrue accusation caused the Plaintiffs injury to their

reputation.” Doc. 49 at 22, 26. There are no facts about the form of these

accusations, which defendants made the statements, how they were communicated

to a third party and when, and why the plaintiffs believe the defendants were

negligent in making the statements. In this light, the defamation allegations amount

to nothing more than “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements.” Iqbal, 556 U.S. at 678. Without

sufficient factual allegations, the defendants do not have adequate notice of the

defamation claims, which must be dismissed.

5. Malicious Prosecution (Counts 6 and 13)

The Gregorys assert claims for malicious prosecution against Trussville,

Rush, and Morrette. To establish a federal claim for malicious prosecution, the

Gregorys must prove both “a violation of [their] Fourth Amendment right[s] to be

free of unreasonable seizures” and “the elements of the common law tort of

malicious prosecution.” Paez v. Mulvey, 915 F.3d 1276, 1285 (11th Cir. 2019)

(internal quotation marks omitted). Under the common-law elements of malicious

prosecution, they must prove that the defendants “instituted or continued” a criminal

prosecution against them, “with malice and without probable cause,” that terminated

in their favor and caused damage to them. Id. (internal quotation marks omitted).

At the outset, the amended complaint states that Amy Gregory and Gavin

Gregory have not been charged with a crime (Doc. 49 at 8), so they cannot maintain

a claim for malicious prosecution. As for Jonathan Gregory, the compliant does not

show that a criminal prosecution terminated in his favor. To the contrary, the

Gregorys’ brief admits that “Jonathan Gregory’s criminal charges are still pending

at this time.” Doc. 57 at 3 n.3. The pendency of a criminal proceeding prevents a

claim for malicious prosecution at this time. Therefore, the motion to dismiss the

malicious prosecution claims is due to be granted without prejudice.

6. Outrage (Counts 8, 14, and 20)

In a footnote in their opposition brief, the Gregorys state that they are “no

longer asserting a claim for outrage in this case against Defendant City of Trussville

and [have] abandoned that claim.” Doc. 55 at 1 n.2. There is no similar assertion in

their other briefs, so the court assumes they are maintaining their claims for outrage

against the individual defendants. Even so, these claims fail.

In Alabama, outrage is another name for the tort of intentional infliction of

emotional distress. There is a tripartite test to prove the tort. “The plaintiff must

prove (1) that the defendant’s conduct was intentional or reckless; (2) that it was

extreme and outrageous; and (3) that it caused emotional distress so severe that no

reasonable person could be expected to endure it.” Ex parte Crawford & Co., 693

So. 2d 458, 460 (Ala. 1997).

This is a high bar, and the only consistently recognized categories of

actionable conduct exist “in the family-burial context . . . , [when] barbaric methods

[are] employed to coerce an insurance settlement . . . and [in cases of] egregious

sexual harassment.” Little v. Robinson, 72 So. 3d 1168, 1172 (Ala. 2011). Although

the tort is not explicitly cabined to those three categories, the action in question must

be at least as outrage-inducing as, for example, “a family physician who, when asked

by a teenage boy’s mother to counsel the boy concerning his stress over his parents’

divorce, instead began exchanging addictive prescription drugs for homosexual sex

for a number of years, resulting in the boy’s drug addiction.” Id. (describing the facts

of O’Rear v. B.H., 69 So. 3d 106 (Ala. 2011)). The bottom line is that this tort is

viable “only when the conduct is so outrageous in character and so extreme in degree

as to go beyond all possible bounds of decency, and to be regarded as atrocious and

utterly intolerable in a civilized society.” Id.

The factual allegations here do not rise to the level of outrageous conduct for

the plaintiffs to sustain a cause of action for outrage. There is no allegation of

conduct that goes “beyond all possible bounds of decency” and is “atrocious and

utterly intolerable.” Id. Instead, the amended complaint consists of garden variety

allegations of force, seizure, and the taking of property, among other things. The

claims for outrage are due for dismissal.

D. Leave to Amend

Although many of the allegations of the complaint are insufficient, a district

court’s discretion to dismiss a complaint without granting leave to amend “is

severely restrict[ed]” by Federal Rule of Civil Procedure 15(a), “which directs that

leave to amend ‘shall be freely given when justice so requires.’” Thomas v. Town of

Davie, 847 F.2d 771, 773 (11th Cir. 1988) (internal quotation marks and citation

omitted). Where a more carefully drafted pleading might state a viable claim, a

district court should allow the plaintiff at least one chance to amend the complaint

before dismissing the action with prejudice. Bryant v. Dupree, 252 F.3d 1161, 1163

(11th Cir. 2001). However, a district court need not allow an amendment where

(1) “there has been undue delay, bad faith, dilatory motive, or repeated failure to

cure deficiencies” through prior amendments; (2) amending the complaint would

prejudice the opposing party; or (3) “amendment would be futile.” Id.

The Gregorys have already had one opportunity to amend in the face of a

motion to dismiss, albeit before the court resolved that motion. Separately, the court

also ordered an amendment to remove any reference to the Ring video camera. For

this reason, the amended complaint is essentially the third iteration of the original

complaint. Even so, the court will permit the Gregorys one last opportunity to file a

second amended complaint to attempt to correct the deficiencies identified above

now that the court, for the first time, has analyzed their compliant. However, the

court finds that it would be futile at this time to attempt to amend the malicious

prosecution claim since the prosecution of the charges remains pending against

Jonathan Gregoy and no charges were filed against Amy or Gavin Gregory. The

court will entertain a motion to amend in the future if the state court resolves the

charges in Jonathan Gregory’s favor.

IV. CONCLUSION

For these reasons, it is ORDERED that the Motion to Dismiss (Doc. 50) is

GRANTED in part and DENIED in part as follows:

1. All claims against The City of Trussville are DISMISSED;

2. All claims against Rush and Morrette are DISMISSED; and

3. The claims for conversion, malicious prosecution, and outrage against

Jones, McCool, Lovell, and Martin are DISMISSED;

4. The federal claims and the state-law claim for assault and battery

against Jones, McCool, Lovell, and Martin remain pending.

The Gregorys are ORDERED to file a third amended complaint consistent

with this Memorandum Opinion and Order no later than February 27, 2025. The

amended complaint must be an entire stand-alone complaint and must set forth each

and every allegation and claim without reincorporating allegations and claims from

any other pleading.

Additionally, the parties are ORDERED to file their report consistent with

Federal Rule of Civil Procedure 26 and the court’s orders of July 2, 2024, and

October 16, 2024 (Doc. 28 & 48), on or before February 27, 2025. If the parties

fail to file their report, the court will unilaterally issue a scheduling order.

DONE and ORDERED on February 13, 2025.

GRAY FAT

UNITED STATES MAGISTRATE JUDGE

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