Janice Moncrief, as Administratrix of the Estate of Gary Moncrief, deceased, and in her individual capacity, Benita Moncrief, and Tamara Acree v. City of Montgomery, a municipal corporation of the State of Alabama, et al.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

JANICE MONCRIEF, as Administratrix )

of the Estate of Gary Moncrief, deceased, )

and in her individual capacity, BENITA )

MONCRIEF, and TAMARA ACREE, )

)

Plaintiffs, )

)

v. ) CASE NO. 2:23-cv-331-JTA

) (WO)

CITY OF MONTGOMERY, a municipal )

corporation of the State of Alabama, et al., )

)

Defendants. )

MEMORANDUM OPINION

Before the Court is the Partial Motion to Dismiss Plaintiffs’ Second Amended

Complaint filed by Defendants Alabama State Bureau of Investigation Special Agents

Wayne Gaskin and Jared Roberson (“SBI Defendants”).1 (Doc. No. 134.) For the reasons

stated below, the motion will be granted.

I. JURISDICTION AND VENUE

The parties have consented to the exercise of dispositive jurisdiction by a magistrate

judge pursuant to 28 U.S.C. § 636(c). (Docs. No. 22, 23, 149.) This Court has subject

matter jurisdiction over Plaintiffs’ federal claims pursuant to 28 U.S.C. §§ 1331 and 1343,

and supplemental jurisdiction over their state law claims pursuant to 28 U.S.C. § 1367. The

1 Defendants Gaskin and Roberson are agents of the Alabama State Bureau of Investigation

(“SBI”).

parties do not contest personal jurisdiction or venue, and Plaintiffs’ allegations are adequate

to support both. See 28 U.S.C. § 1391.

II. STANDARD OF REVIEW

When evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6), the court takes the facts alleged in the complaint as true and construes them in

the light most favorable to the plaintiff. See Resnick v. AvMed, Inc., 693 F.3d 1317, 1321–

22 (11th Cir. 2012). To avoid dismissal, the complaint must “state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is

facially plausible “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 (2009) (citing Twombly, 550 U.S. at 556). That is, “[f]actual

allegations must be enough to raise a right to relief above the speculative level on the

assumption that all the allegations in the complaint are true (even if doubtful in fact).”

Twombly, 550 U.S. at 555 (internal citations omitted). While Federal Rule of Civil

Procedure 8(a) “does not require ‘detailed factual allegations’. . . it demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678

(citing Twombly, 550 U.S. at 555). A complaint is insufficient if it “offers labels and

conclusions or a formulaic recitation of the elements of a cause of action,” or if it “tenders

naked assertions devoid of further factual enhancement.” Id. (internal quotations omitted)

(quoting Twombly, 550 U.S. at 555, 557). In short, a complaint must provide a “‘plain

statement possess[ing]’ enough heft to ‘show that the pleader is entitled to relief.’”

Twombly, 550 U.S. at 557 (internal quotations omitted) (quoting Fed. R. Civ. P. 8(a)(2)).

III. FACTS2 AND PROCEDURAL HISTORY

This case arises out of a May 18, 2021 incident in which Defendants Christopher

Brown and James Albrecht, police officers for the City of Montgomery, used deadly force

by firing into a vehicle occupied by four people. In the incident, one of the occupants, Gary

Moncrief, died due to a gunshot wound.

On May 17, 2023, Plaintiff Janice Moncrief, Gary Moncrief’s mother and next of

kin who sues in both her representative and individual capacities, along with Plaintiffs

Benita Moncrief and Tamara Acree, filed this suit against Defendants Brown, Albrecht,3

the City of Montgomery (“the City”), and Ernest N. Finley4 (“the Original Defendants”).

(Doc. No. 1.) On March 18, 2025,5 Plaintiffs filed a forty-one page6 Second Amended

2 The facts here are drawn from the allegations in Plaintiffs’ Second Amended Complaint which,

for purposes of considering the motion to dismiss, are taken as true and construed in the light most

favorable to Plaintiff. See Resnick, 693 F.3d 1321–22. At this stage of litigation, those allegations

have not been proven.

3 Plaintiffs originally filed suit against Defendants Brown and Albrecht under fictitious names.

(Doc. No. 1.) Prior to the filing of the amended complaint, the Court allowed a period of limited

discovery for Plaintiffs to discover the names of the two officers. (Docs. No. 28, 29.) Moncrief v.

City of Montgomery, No. 2:23-CV-331-JTA, 2023 WL 5444654 (M.D. Ala. Aug. 23, 2023).

4 The Court dismissed Defendant Ernest Finley in an order entered September 20, 2024. (Doc. No.

42.)

5 Plaintiffs’ Second Amended Complaint was untimely filed. Nevertheless, the Court gave

Plaintiffs leave to amend. (See Doc. No. 77.)

6 The body of the complaint is forty-one pages. The complaint, in its entirety, is comprised of the

body of the complaint and thirty exhibits, including several thumb drives. Plaintiffs filed most of

the exhibits under seal.

Complaint7 in which they added claims against the Original Defendants, the SBI

Defendants, and Defendants Bianka Ruiz, D’Shana Snyder, Laquita Clark, Alix Payne, Jr.,

Brian Dixon, Ed Jones, Ralph Tucker, and Raynard Dabney (“the New MPD

Defendants”).8 (Doc. No. 74.)

Plaintiffs appear9 to allege the SBI Defendants investigated the scene of the shooting

after the fact. (Doc. No. 74 at 7–8, 19–20.) According to their investigatory notes,

Defendant Gaskin interviewed witnesses, then met with Defendant Tucker, who had

preserved a Taurus 9 mm handgun, Serial # TJP72525, as evidence and secured it inside

his vehicle. (Id.) Defendant Tucker stated he had secured the weapon from Gary Moncrief.

(Id.) Defendant Gaskin’s report states he took photographs of the Taurus handgun as it lay

inside the passenger floor of Defendant Tucker’s police vehicle. (Id.) Thereafter,

Defendant Gaskin secured the weapon. (Id.) Defendant Gaskin also secured the crime

scene log, which does not contain the names of either SBI Defendant. (Id.) As part of their

investigation, the SBI Defendants created an Incident Scene Diagram, which did not

include the Taurus handgun Defendant Tucker took from Gary Moncrief after the shooting.

(Id. at 19–20.) An SBI investigation subsequently determined Gary Moncrief died from a

7 The Court pretermits unnecessary discussion of the First Amended Complaint and the numerous

motions, filings, and orders filed in the interim between the Complaint and Second Amended

Complaint.

8 The New MPD Defendants are police officers of the City of Montgomery Police Department.

9 Plaintiffs’ Second Amended Complaint is not a model of clarity.

self-inflicted gunshot wound from the Taurus handgun found on his person at the scene.10

(Id.)

On June 11, 2025, Defendants Gaskin and Robinson filed a partial motion to

dismiss. (Doc. No. 134.) Plaintiffs filed a brief in response to the motion to dismiss, and

Defendants Gaskin and Robinson filed a reply. (Docs. No. 147, 153.) The motion to dismiss

is ripe for disposition.

IV. DISCUSSION

In Count IV of the Second Amended Complaint, Plaintiffs allege a single claim

against the SBI Defendants:11 a conspiracy claim pursuant to 42 U.S.C. § 1985. (Doc. No.

74 at 28–30.) Specifically, Plaintiffs allege that, in concert with the other individual

Defendants, the SBI Defendants knowingly deprived Plaintiffs of their constitutional rights

by conspiring “to falsify evidence and/or to break the chain of custody of evidence to give

the appearance that Pl. GARY MONCRIEF committed suicide and thereby was reasonable

for Defendant BROWN and Defendant ALBRECHT’s actions.” (Id. at 28 (sic).) It appears

Plaintiffs intend to allege the SBI Defendants conspired with others to falsify evidence or

10 However, taking the Second Amended Complaint as a whole, Plaintiffs appear to allege that

Gary Moncrief did not die of the self-inflicted bullet, but from a different bullet injury to the head.

11 Plaintiffs also include other Defendants in Count IV. With respect to those Defendants, the Court

will address Count IV separately in ruling on their partial motion to dismiss. (Doc. No. 135.)

break the chain of custody of evidence to make it appear Defendants Brown and Albrecht

acted reasonably when they fired on the vehicle in which Gary Moncrief was a passenger.12

The SBI Defendants argue Plaintiffs’ § 1985 claim is due to be dismissed because

Plaintiffs failed to allege sufficient facts to support the claim.13 They are correct for two

reasons. First, Plaintiffs allege no facts indicating the SBI Defendants falsified evidence or

broke the chain of custody or conspired with anyone to do so. All the Second Amended

Complaint alleges is that, in the course of their investigation, the SBI Defendants

photographed and secured the Taurus handgun, failed to include it in their diagram of the

scene, and failed to include their own names in the crime scene log. Plaintiffs do not allege

the Taurus handgun was not at the crime scene or not in Gary Moncrief’s possession during

the shooting. Nor do they allege Defendant Gaskin planted the Taurus handgun. Plaintiffs

do not even allege Gary Moncrief was unarmed during the shooting or that he never fired

a shot.

In sum, any alleged discrepancies in the SBI Defendants’ reports do not reasonably

call into question whether the Taurus handgun was recovered from Gary Moncrief at the

crime scene or whether Gary Moncrief fired the first shot. Therefore, Plaintiffs’ allegations

fail to establish the SBI Defendants knowingly participated in evidence tampering with the

12 The Court’s interpretation of Plaintiffs’ allegations is confirmed by the statements Plaintiffs’

attorney made in open court during a scheduling and status conference held on July 24, 2025. (See

Doc. No. 162.)

13 The SBI Defendants also allege the § 1985 claim should be dismissed on grounds of qualified

immunity, but the Court pretermits consideration of their qualified immunity defense because

Plaintiffs failed to allege sufficient facts to state a viable § 1985 claim.

intent to cover up information related to the shooting. 14 Accordingly, the Second Amended

Complaint is devoid of sufficient facts to support Plaintiffs’ claim that the SBI Defendants

participated in a conspiracy to falsify evidence or break the chain of custody to make it

appear Gary Moncrief fired the first shot.

Second, as Defendants point out, as a matter of law, § 1985 does not apply to

Plaintiffs’ conspiracy claim because Plaintiffs provide no allegations that any Defendant,

including the SBI Defendants, acted with intent to discriminate on the basis of race or some

other class-based distinction.15 Byrd v. Clark, 783 F.2d 1002, 1007–08 (11th Cir. 1986)

(“The language of [§] 1985 which requires an intent to deprive one of equal protection or

equal privileges and immunities means that there must be some racial or otherwise class-

based invidiously discriminatory animus behind the conspirators’ action.” (citing Griffin v.

Breckenridge, 403 U.S. 88, 102 (1971)). Perhaps for that reason, in response to the SBI

14 In fact, it is too much of a stretch to infer from the Second Amended Complaint that the SBI

Defendants tampered with evidence or interfered with the chain of custody at all, regardless of

motive.

15 Some portions of § 1985, which are not relevant here, do not require proof of discriminatory

intent because they do not pertain to conspiracies to deprive persons of the equal protection of the

laws. Kush v. Rutledge, 460 U.S. 719, 726 (1983). Plaintiffs appear to allege a § 1985 equal

protection violation, most likely pursuant to the second clause of § 1985(2), which does require

proof of discriminatory intent. Id. at 725. In relevant part, § 1985(2) states:

[I]f two or more persons conspire for the purpose of impeding, hindering,

obstructing, or defeating, in any manner, the due course of justice in any State or

Territory, with intent to deny to any citizen the equal protection of the laws, or to

injure him or his property for lawfully enforcing, or attempting to enforce, the right

of any person, or class of persons, to the equal protection of the laws . . . the party

so injured or deprived may have an action for the recovery of damages occasioned

by such injury or deprivation, against any one or more of the conspirators.

42 U.S.C. § 1985(2)–(3).

Defendants’ motion, Plaintiffs abandon § 1985 and argue exclusively that they have a

viable claim for conspiracy under 42 U.S.C. § 1983.

The problem with Plaintiffs’ § 1983 argument is that the Second Amended

Complaint contains no § 1983 claim,16 and Plaintiffs cannot amend their Second Amended

Complaint by way of their response brief. McIntosh v. Ragland, No. 2:23-cv-470-RAH-

JTA, 2024 WL 2946092, at *4 (M.D. Ala. June 11, 2024) (noting that a plaintiff cannot

amend a complaint through a response to a motion to dismiss (collecting cases)), report

and recommendation adopted, No. 2:23-CV-470-RAH-JTA, 2024 WL 3339604 (M.D.

Ala. July 9, 2024); see also Burgess v. Religious Tech. Ctr., Inc., 600 F. App’x 657, 665

(11th Cir. 2015) (“We repeatedly have held that plaintiffs cannot amend their complaint

through a response to a motion to dismiss.”) (citing Rosenberg v. Gould, 554 F.3d 962, 967

(11th Cir. 2009)). Hence, Plaintiffs’ attempts to convert their § 1985 claim to a § 1983

claim fails.

16 On June 26, 2025, after the time allotted in the Uniform Scheduling Order for amendment of

pleadings, after all Defendants filed motions to dismiss the Second Amended Complaint, and in

an apparent effort to circumvent Rule 15(a) of the Federal Rules of Civil Procedure and the terms

of the Uniform Scheduling Order, Plaintiffs attempted to amend their complaint by filing a “Notice

of Correction of Second Amended Complaint.” (Doc. No. 146.) They attached to their “Notice of

Correction” an amended version of their Second Amended Complaint, which replaced the § 1985

claim with a § 1983 claim. (Doc. No. 146-1.) By way of explanation for the “correction,” Plaintiffs

admitted they have no viable § 1985 claim and indicated they had intended to file a § 1983 claim

instead. Specifically, they stated: “Plaintiffs, after several edits, inadvertently left two references

to § 1985 in their Second Amended Complaint. . . . While Plaintiffs considered a conspiracy claim

under both §§ 1983 and 1985, in the end, Plaintiffs felt they only had evidence to support a

conspiracy claim under § 1983.” (Doc. No. 146 at 2.) To enforce the terms of the Uniform

Scheduling Order and compliance with the Federal Rules of Civil Procedure, the court construed

the “Notice of Correction of Second Amended Complaint” as a Rule 15(a) motion to amend and

denied the motion as untimely. (Doc. No. 150.) Thus, Plaintiffs are bound to their allegations in

the Second Amended Complaint, which does not include a § 1983 claim.

Accordingly, Plaintiffs’ § 1985 claim against the SBI Defendants is due to be

dismissed for failure to state a clatm upon which relief can be granted. Further, because the

§ 1985 claim is the only claim Plaintiffs assert against the SBI Defendants, the SBI

Defendants are due to be dismissed from this action.

A separate order will be entered.

DONE this 10th day of November, 2025.

i ie T. ADAMS

WTED STATES MAGISTRATE JUDGE