Franklin v. City of Dothan, Alabama

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

TYDARRIUS FRANKLIN, )

)

Plaintiff, )

)

v. ) Case No. 1:21-cv-349-ECM

)

CITY OF DOTHAN, AL, et al., )

)

Defendants. )

MEMORANDUM OPINION and ORDER

Now pending before the Court are two motions to dismiss for lack of jurisdiction

and for failure to state a claim filed by the City of Dothan, Alabama (“the City”) (doc. 10

& 25), and a motion for leave to file surreply (doc. 32), filed by the Plaintiff, Tydarrius

Franklin (“Franklin”).

After Franklin filed his initial complaint, the City filed a motion to dismiss.1 In

response, and with leave of the Court, Franklin filed an amended complaint. (Doc. 23). In

view of the amended complaint, the motion to dismiss directed to the original complaint is

due to be DENIED as moot.

In his amended complaint, Franklin brings claims against the City and Belinda

Robinson (“Robinson”) for excessive force in violation of the Eighth Amendment,

negligence, wantonness, assault and battery, and outrageous conduct.2

1 Defendant Belinda Robinson filed a pro se answer to the original complaint.

2 Although the amended complaint is somewhat unclear, the amended complaint brings a federal claim

against the City and Robinson in the first count, while the second count is expressly asserted only against

Robinson. (Doc. 23 at 10-11). Additionally, while other amendments are identified in both counts, the

Eighth Amendment is the appropriate claim for excessive force brought by an incarcerated person. See

The City moved to dismiss the claims against it in the amended complaint, but

Robinson did not respond to the amended complaint.

The Court set a briefing schedule with a deadline for Franklin’s opposition to the

City’s motion. Although Franklin timely filed a brief in opposition to the motion to

dismiss, he also has sought to supplement that response with a surreply brief. (Doc. 32).

Because Franklin does not contend that he is responding to new arguments raised in the

reply, however, the Court will not consider the surreply brief.

Upon consideration of the timely filed briefs, the record, and the applicable law, and

for the reasons that follow, the motion to dismiss the amended complaint is due to be

GRANTED in part and DENIED in part.

I. LEGAL STANDARDS

A. Motion to Dismiss for Lack of Jurisdiction

A motion to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1)

of the Federal Rules of Civil Procedure, may be a factual or facial attack on subject matter

jurisdiction. Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1238 (11th Cir. 2002). A factual

attack permits the district court to weigh evidence outside the pleadings to satisfy itself of

the existence of subject matter jurisdiction in fact. Id. at 1237. However, a facial attack

merely questions the sufficiency of the pleading. Id. Under a facial attack, the district court

accepts the plaintiff's allegations as true and need not look beyond the face of the complaint

Crocker v. Beatty, 995 F.3d 1232, 1246 (11th Cir. 2021). Therefore, claims asserted pursuant to other

amendments against the City in the first count are due to be dismissed.

to determine whether the court has subject matter jurisdiction. Id. If the court then finds

that the pleading does not allege a basis for subject matter jurisdiction, the court will

dismiss the complaint.

B. Motion to Dismiss for Failure to State a Claim

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the

legal standard set forth in Rule 8: “a short and plain statement of the claim showing that

the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). “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.’” Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U. S. 544, 570 (2007)).

“Determining whether a complaint states a plausible claim for relief [is] ... a context-

specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Id. at 663 (alteration in original) (citation omitted). The plausibility

standard requires “more than a sheer possibility that a defendant has acted unlawfully.”

Iqbal, 556 U. S. at 678. Conclusory allegations that are merely “conceivable” and fail to

rise “above the speculative level” are insufficient to meet the plausibility standard.

Twombly, 550 U. S. at 555, 570. This pleading standard “does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Id. at 678. Indeed, “[a] pleading that offers ‘labels and conclusions’ or ‘a

formulaic recitation of the elements of a cause of action will not do.’” Id.

II. FACTS

The facts, taken in a light most favorable to the non-movant, are as follows:

In July of 2020, Franklin was serving a sentence on state-law charges in the City’s

jail. Robinson worked there as a jailer. On July 27, 2020, Franklin picked up his meal and

began walking toward a table when Robinson, without provocation, fired a Taser at his

back. Franklin fell to the floor and was allowed to lie there for several minutes without

medical attention. (Doc. 23 para. 21).

The amended complaint alleges that at times prior to this event, Robinson had

without provocation, justification, or warning grabbed and assaulted other inmates. (Id.

para. 25). The amended complaint also alleges that Robinson and other jailers’ “obvious,

flagrant, and rampant behavior” continued over a lengthy period of time. (Id. para. 29).

The amended complaint further alleges that jailers and/or other officers had been present

and overheard or viewed Robinson’s prior gratuitous use of excessive force. (Id. para. 32).

The City is alleged to have failed to punish Robinson before the use of force on Franklin

or to implement policies or training to deter misconduct. (Id. para. 34). The amended

complaint finally alleges that the “aforesaid conduct” was the proximate cause of

Franklin’s injuries. (Id. para. 59).

Franklin does not allege in the amended complaint, but concedes (doc. 30 at 6), that

Robinson was terminated from her employment because of the incident with Franklin.3

3 The City offers Robinson’s termination in part in support of its motion to dismiss claims against her in

her individual capacity for lack of jurisdiction. (Doc. 26 at 18).

III. DISCUSSION

A. Federal Claims

The City moves to dismiss the official capacity claims against Robinson as being

redundant of the claims against the City and as mooted by her termination from

employment. Franklin concedes that the official capacity claims against Robinson are due

to be dismissed. (Doc. 30 at 12).

Franklin cannot establish liability on the part of the City for his Eighth Amendment

claim on the basis of respondeat superior or vicarious liability, but must instead prove a

municipal policy or custom which caused a constitutional violation. See McDowell v.

Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). To impose municipal liability under § 1983,

a plaintiff must allege facts showing that (1) constitutional rights were violated, (2) the

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

constitutional right; and (3) the policy or custom caused the violation. Id. A plaintiff can

allege a policy or custom by one of two ways: by showing that the alleged constitutional

injury was caused by “a municipal official who has final policymaking authority in a

certain area of the city's business,” or (2) by establishing “a widespread practice that,

although not authorized by written law or express municipal policy, is so permanent and

well settled as to constitute a custom or use with the force of law.” Brown v. City of Ft.

Lauderdale, 923 F.2d 1474, 1480-81 (11th Cir. 1991).

The City moves for dismissal of the Eighth Amendment claim against it, arguing

that Franklin does not identify any incidents of excessive force besides the use of force on

him, which is insufficient to allege a policy or custom, and that he has merely relied on

conclusory allegations of widespread abuse with no supporting facts.

Franklin responds that he has sufficiently alleged facts of a policy or custom through

a widespread practice of jailers, including Robinson herself, using excessive force on other

inmates.

The allegations of fact in this case are that before the assault on Franklin, Robinson

had without provocation or justification “grabbed and assaulted inmates.” (Doc. 23 at para.

25). Franklin further alleges that the City filed to “timely address the overt and egregious

violations of inmates’ constitutional rights . . . .” (Id. para. 35). Franklin also has alleged

that Robinson’s, and other jailers,’ behavior was “obvious, flagrant, and rampant” over a

lengthy period of time. (Id. para. 28). Contrary to the City’s argument, therefore, Franklin

has done more than rely on his own incident wherein Robinson used excessive force.

To establish a policy or custom, Franklin also has alleged that the City had “actual

notice” because “jailers and/or other officers had been present and overheard and/or viewed

prior misconduct of Defendant Robinson’s gratuitous use of excessive force.” (Doc. 23

para. 32). The complaint alleges the City ignored an obvious risk with “knowledge of the

foregoing” pattern of conduct by Robinson. (Id. para. 33).

“[A] longstanding and widespread practice is deemed authorized by the

policymaking officials because they must have known about it but failed to stop it.” Brown

923 F.3d at 1481. If a plaintiff attempts to proceed on a theory of a widespread practice,

“actual or constructive knowledge of such customs must be attributed to the governing

body of the municipality.” Depew v. City of St. Marys, Georgia, 787 F.2d 1496, 1499 (11th

Cir. 1986). A plaintiff can meet this burden by showing “a pattern of constitutional

violations exists such that the municipality knows or should know that corrective measures

are needed.” Gold v. City of Miami, 151 F.3d 1346, 1352 n.12 (11th Cir. 1998) (quoting

Young v. City of Augusta, Ga., 59 F.3d 1160, 1172 (11th Cir. 1998)). A municipality's

failure to correct the constitutionally offensive actions of its employees may rise to the

level of a “custom or policy” if the municipality tacitly authorizes these actions or displays

deliberate indifference towards the misconduct. See Brooks v. Scheib, 813 F.2d 1191, 1193

(11th Cir. 1987).

The City argues that Franklin has failed to allege deliberate indifference by pleading

only “actual notice,” citing Franklin v. Curry, 738 F.3d 1246 (11th Cir. 2013).4 Franklin,

unlike other decisions, did not use the label “actual or constructive notice.” Cf. Connick v.

Thompson, 563 U.S. 51, 61 (2011)(“Thus, when city policymakers are on actual or

constructive notice that a particular omission in their training program causes city

employees to violate citizens' constitutional rights, the city may be deemed deliberately

indifferent if the policymakers choose to retain that program.”). Instead, the court

explained that deliberate indifference can be alleged through reliance on an inference from

the facts, that is, “the official must both be aware of facts from which the inference could

be drawn that a substantial risk of serious harm exists, and he must also draw that

inference.” 738 F.3d at 1250 (citation and emphasis omitted).

4 The City also argues that because Robinson was terminated for the excessive force used on Franklin, this

Court must conclude that her actions were inconsistent with the City’s training and policies. Even if

Robinson’s termination is properly considered in the context of the motion to dismiss for failure to state a

claim, deliberate indifference is based on the allegations of a pattern of abuse before the termination.

Another district court within this circuit recently applied the relevant legal standards

and concluded that a plaintiff had adequately pleaded a basis for municipal liability where

the plaintiff alleged sufficient examples of the use of excessive force “to show that the City

of Atlanta was on notice of the need to train officers on pursuing suspects fleeing in

vehicles” and alleged deliberate indifference through a failure to “conduct relevant

training.” Glover v. City of Atlanta, 2021 WL 3055267, at *4 (N.D. Ga. July 20, 2021).

In reviewing the amended complaint in this case, this Court must disregard legal

conclusions, such as the allegation of “actual notice,” and consider only the properly

pleaded facts. Franklin, 738 F.3d at 1251. The amended complaint expressly alleges that

the City had knowledge of conduct by Robinson. The facts supporting that allegation are

facts of misconduct by jailers as well as facts that jailers and/or other officers were

physically present during past incidents of grabbing and assaulting inmates by Robinson.

The amended complaint, therefore, sufficiently alleges awareness of facts of a widespread

pattern of abuse from which the inference could be drawn that a substantial risk of serious

harm existed. See Bowen v. Warden Baldwin State Prison, 826 F.3d 1312, 1324 (11th Cir.

2016)(citing Farmer v. Brennan, 511 U.S. 825, 842 (1994) for the proposition that

subjective knowledge can be inferred from circumstantial evidence); see also Quinn v. City

of Tuskegee, Alabama, 2020 WL 1493007, at *5 (M.D. Ala. 2020)(finding evidence of

deliberate indifference where the plaintiff told multiple officers about misconduct and “[i]t

was common knowledge among the members of the Tuskegee police force that Officer

Kelly was having sex with young girls.”). Combined with allegations of fact that the City

failed to address the conduct, these allegations are sufficient to allege a basis for municipal

liability. See Depew, 787 F.2d at 1499.

The City also argues that Robinson’s use of the Taser against Franklin was so

obviously improper that, as a matter of law, additional training or supervision would not

have mattered, so there can be no deliberate indifference.5 In support of this argument, the

City cites to Sewell v. Town of Lake Hamilton, 117 F.3d 488, 490 (11th Cir. 1997).

In Sewell, the court concluded that a municipality could not be held liable for a

failure to train officers that they were not to barter arrests for sexual favors. Id. The court

relied on reasoning that if an officer’s response is obvious to all without training or

supervision, then the failure to train or supervise is not deliberate indifference. Id. (citation

omitted). As the Eleventh Circuit has noted in an unpublished opinion, a “pattern of known

misconduct, however, may be sufficient to change reasonable reliance [on common sense]

into deliberate indifference.” Doe ex rel. Doe v. City of Demopolis, 461 F. App'x 915, 917

(11th Cir. 2012); see also Quinn, 2020 WL 1493007, at *5. Therefore, obviously improper

conduct can still form the basis of a claim for liability. For example, another judge of this

district found sufficient evidence that a City was deliberately indifferent to statutory rape,

even though statutory rape is something a city ordinarily may rely on the common sense of

officers not to engage in, because there was a pattern of conduct. See Quinn, 2020 WL

5 The City, in its reply, contends that Franklin has failed to respond to the City’s arguments regarding

deliberate indifference and causation. The Court cannot agree that Franklin has failed to respond. (Doc. 30

at 7-8)(acknowledging that a plaintiff must allege an affirmative causal connection between the conduct

and the constitutional deprivation and arguing that the “City had direct notice of Sgt. Robinson’s history of

widespread abuse—which resulted in the violation of citizens’ constitutional rights. Other officers and

inmates were present and overheard or viewed this prior misconduct.”)(citations omitted).

1493007, at *5. The instant case also is one in which there is an alleged pattern of conduct.

Therefore, at this point in the proceedings, the Court cannot conclude that the City is

entitled to rely on the common sense of its jailers to avoid a claim of deliberate indifference.

The Court concludes that the amended complaint contains sufficient factual matter,

accepted as true at this stage in the proceedings, to state a claim for relief against the City.

The motion to dismiss, therefore, is due to be DENIED as to the Eighth Amendment claim

against the City.

B. State-Law Claims

Franklin agrees to the dismissal of state-law claims against Robinson in her official

capacity, (doc. 30 at 12), as well as to the dismissal of intentional tort claims against the

City, (id. at 13), and argues that his negligence claim against the City should proceed.

The City moves for dismissal of the negligence claim on two bases: failure to file

a sufficient notice of claim and state-law immunity.

1. Notice of Claim

Although it acknowledges that Franklin filed a notice of claim, the City argues that

Franklin did not satisfy Alabama’s statutory notice requirements because he did not specify

an amount of damages. Franklin responds that his notice filed with the City substantially

complies with the Alabama statutes.6

6 Franklin refers to the notice of claim within the amended complaint. Accordingly, the Court has

considered his notice-of-claim affidavit as provided by the City in ruling on the motion to dismiss. See Fin.

Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007)(stating that because the document

was attached to the motion to dismiss, there was notice that the district court might consider the document

and because it is referred to in the complaint, it is central to claim, its consideration comports with the

requirements of notice pleading, and neither party challenges its authenticity).

Under state law, a claim for personal injury cannot be brought against a city unless

a sworn statement by the injured party is filed with the city clerk “stating substantially the

manner in which the injury was received, the day and time and the place where the accident

occurred and the damages claimed.” ALA. CODE §11–47–192. The plaintiff has the burden

to prove substantial compliance with the claim-filing requirement. Shuler v. Bd. of Trustees

of Univ. of Alabama, 480 F. App'x 540, 543 (11th Cir. 2012)(citing McCarroll v. City of

Bessemer, 289 Ala. 449, 268 So.2d 731, 735 (1972)(“[I]n order to maintain an action

against a municipal corporation the filing of the statement of claim in substantial

compliance with the statute must be alleged and proved.”)).

In arguing that Franklin failed to meet his burden, the City relies on City of

Montgomery v. Weldon, 195 So. 2d 110 (Ala. 1967), which held that a plaintiff had not

satisfied the notice of claim statute because he had not stated the amount of damages and

had not sworn to the statement.

The Court, however, subsequent to Weldon, adopted a rule of “substantial

compliance; i. e., the statute will be liberally construed to determine whether claimant has

so complied with its requisites as to serve its purpose.” Fuller v. City of Birmingham, 377

So. 2d 957, 959 (Ala. 1979). In Fuller, the Alabama Supreme Court concluded that the

statement of damages which claimed, “all my medical expenses,” substantially complied

with the statute. Id. at 959, 961. In so holding, the Court quoted earlier precedent in which

it had reasoned that “in some cases the only measure of damages is ‘such as the jury may

assess.’ The plaintiff, therefore, could not know in advance what this amount would be.”

Id. at 960–61 (quoting Perrine v. Southern Bitulithic Co., 66 So. 705 (Ala. 1914)). Fuller

also expressly considered Weldon. Id. at 961. This Court concludes, therefore, that under

binding Alabama precedent, because Franklin’s notice of claim contained a statement that

Franklin is seeking actual and punitive damages in the amount to be determined at a later

date, it substantially complied with the notice of claim statute. Id.

2. Immunity

The City invokes state-law immunity as to the negligence claim against it. Alabama

law entitles a city to immunity for injuries caused by its agents unless the injuries resulted

from neglect, carelessness, or unskillfulness. ALA. CODE §11-47-190. The City argues that

while it can be held liable for negligence claims of its employees, Franklin has failed to

allege negligence and instead has pleaded an intentional tort. The City relies on the

unpublished opinion Fowler v. Meeks, 569 F. App’x 705 (11th Cir. 2014).

In Fowler, a city appealed from a denial of a motion to dismiss by another judge of

this district in a case in which there were allegations that a plaintiff who was not resisting

arrest was kicked and beaten. Fowler v. Meeks, 2014 WL 457762, at *9 (M.D. Ala. 2014).

The district court reasoned that immunity would be denied because the allegations “at the

very least amount to negligence, unskillfulness, or carelessness.” Id. The Eleventh Circuit

reversed because it determined that the allegations were of more than negligence and

showed deliberate actions, entitling the defendant to immunity. 569 F. App’x at 708.

In the instant case, the facts alleged are that Robinson fired a Taser into Franklin’s

back when he posed no threat to her. (Doc. 23 para. 18). The amended complaint also

alleges that Robinson intentionally maximized the terror and emotional distress

experienced by Franklin and other inmates by allowing Franklin to lie in the floor without

medical assistance for several minutes. (Id. para. 21). These allegations are consistent with

the video recording, which shows Robinson shooting a Taser at Franklin’s back, and then

shows Franklin lying on the floor. (Doc. 26-3).7

Given the direction in the unpublished opinion in Fowler that allegations of conduct

that amount to more than negligence are barred by immunity, this Court concludes that the

claim as currently alleged in the amended complaint is barred by ALA. CODE §11-47-190.

Franklin has clarified in his brief that he pleaded the negligence claim in the

alternative, in the event that Robinson or the City later characterizes Robinson’s action as

negligent, rather than intentional. Franklin requests that if his negligence claim is

insufficiently pleaded, he be allowed to re-plead this alternative theory.

The City opposes Franklin’s request to amend his complaint to re-plead a negligence

theory. The City also argues that even if a negligence claim is pleaded against the City, it

is entitled to claim Robinson’s state-agent immunity under Alabama law. See Howard v.

City of Atmore, 887 So.2d 201, 211 (Ala. 2003)(“It is well established that, if a municipal

peace officer is immune pursuant to § 6–5–338(a), then, pursuant to § 6–5–338(b), the city

by which he is employed is also immune.”).

Entitlement to immunity could make re-pleading futile. See McKinley v. Kaplan,

177 F.3d 1253, 1258 (11th Cir. 1999). However, the procedural posture of this case makes

resolving the futility issue difficult. There is an exception to the application of state-agent

7 The Court has considered this footage, attached to the motion to dismiss, as it is central to Franklin’s

claims and he does not challenge its authenticity. See Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir.

2002).

immunity which has not been addressed because Robinson has not raised immunity on her

own behalf. See Ex Parte City of Midfield, 161 So. 3d 1158, 1164–65 (Ala. 2014) (“As

noted previously, a plaintiff can show that a State agent acted beyond his or her authority

by proffering evidence that the State agent failed to discharge duties pursuant to detailed

rules or regulations, such as those stated on a checklist.”)(quotations omitted). The Court

concludes, therefore, that rather than prematurely address these issues, the Court will

dismiss the negligence claim, but Franklin will be given the opportunity to re-plead a state-

law claim for City liability based on Robinson’s negligence, if he can do so within the

requirements of Rule 11 of the Federal Rules of Civil Procedure.

IV. CONCLUSION

For the reasons discussed, it is hereby ORDERED as follows:

1. The motion to dismiss (doc. 10) filed by the City before the amended complaint

was filed is DENIED as moot.

2. The motion to file surreply (doc. 32) is DENIED.

3. The motion to dismiss the amended complaint (doc. 25) is DENIED in part and

GRANTED in part as follows:

a. The motion is DENIED as to Franklin’s Eighth Amendment excessive force

claim against the City.

b. The motion is GRANTED as to any other federal claims against the City and

against Robinson in her official capacity and those claims are dismissed with

prejudice.

c. The motion is GRANTED as to the state law claims against the City for

wantonness and outrage and those claims are dismissed with prejudice.

d. The motion is GRANTED as to the state law claims against Robinson in her

official capacity and those claims are dismissed with prejudice.

e. The motion is GRANTED as to the state law negligence claim against the

City, but that claim is dismissed without prejudice.

4. Should he choose to do so, the Plaintiff is given until September 30, 2021 to

file a new, amended complaint which is complete unto itself and which, in

addition to the Eighth Amendment excessive force claim brought against the

City and the claims against Robinson in her individual capacity, alleges facts to

support a claim for negligence against the City, as discussed above.

Done this 17th day of September, 2021.

/s/ Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE