Stewart v. Homewood, AL, City of

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TIMOTHY STEWART, )

)

Plaintiff, )

)

vs. ) Civil Action Number

) 2:19-cv-00955-AKK

CITY OF HOMEWOOD, )

ALABAMA, ET AL., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This lawsuit arises from Timothy Stewart’s encounter with Homewood City

police officers one early morning, during which Officers Rodney Adams and

Nicholas Altobella allegedly handcuffed Stewart, beat him, kicked him in the head,

tased him until puss oozed from his back, dragged him on the pavement until his

flesh ripped from his arms and his toenails tore from his feet, and taunted him with

racial slurs. Stewart alleges claims, pursuant to 42 U.S.C. § 1983, for excessive force

and violation of due process by Officers Adams and Altobella (Count I), supervisory

liability as to unnamed defendants (Count III), and failure to intervene (Count IV).

See doc. 1. Stewart also pursues state law claims for negligent training, supervision,

and retention against the City of Homewood and Chief Tim Ross (Count II),

negligence against Officers Adams and Altobella (Count V), and intentional torts of

assault and battery and infliction of emotional distress against all defendants (Count

VI). Id. The Defendants have moved to dismiss pursuant to Federal Rule of Civil

Procedure 8(a) and 12(b)(6). Doc. 6. The motion is fully briefed, docs. 7, 11, and 12,

and ripe for review. For the reasons stated more fully below, the motion is due to be

granted as to the excessive force and due process claims against Officers Adams and

Altobella in their official capacities (Count I), the negligent training, supervision,

and retention claims against Chief Ross and the City of Homewood (Count II), the

§ 1983 supervisory liability claim against Chief Ross and unnamed defendants

(Count III), the § 1983 failure to intervene claim against Chief Ross and the City of

Homewood (Count IV), and the infliction of emotional distress claims against

Officers Adams and Altobella and Chief Ross and the City of Homewood as well as

the assault and battery claims against Chief Ross and the City of Homewood (Count

VI). The motion is due to be denied in all other respects.

I. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a

short and plain statement of the claim showing that the pleader is entitled to relief.”

“[T]he pleading standard Rule 8 announces does not require ‘detailed factual

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

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and conclusions” or “a

formulaic recitation of the elements of a cause of action” are insufficient. Iqbal, 556

U.S. at 678 (citations and internal quotation marks omitted). “Nor does a complaint

suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

Id. (citing Bell Atl. Corp., 550 U.S. at 557).

Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint

fails to state a claim upon which relief can be granted. “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.” Iqbal, 556 U.S. at 678 (citations and

internal quotation marks omitted). A complaint states a facially plausible claim for

relief “when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id.

(citation omitted). The complaint must establish “more than a sheer possibility that

a defendant has acted unlawfully.” Id.; see also Bell Atl. Corp., 550 U.S. at 555

(“Factual allegations must be enough to raise a right to relief above the speculative

level”). Ultimately, this inquiry is a “context-specific task that requires the reviewing

court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

II. FACTUAL BACKGROUND1

Stewart left his motel room on the early morning at issue and accepted a ride

from a passing car to a local convenience store. Doc. 1 at 2-3. Shortly thereafter,

Officers Adams and Altobella of the City of Homewood Police Department detained

and handcuffed Stewart and then proceeded to beat him and kick him in the head.

Id. at 4. The officers repeatedly used a taser on Stewart until puss oozed from his

back, id. at 5, and then dragged Stewart across asphalt pavement, causing “flesh [to

be] ripped from his arms and toenails . . . [to be] ripped from his feet,” id. at 4. The

officers also directed racial slurs at Stewart and destroyed his cell phone. Id. at 5. No

officer intervened to stop the attack or offer medical assistance. Id.

III. ANALYSIS

As an initial matter, the court notes that Stewart fails to address the

Defendants’ arguments against Count II, Count III, and Count IV in his response to

the motion to dismiss. See doc. 12. Consequently, Stewart has abandoned these

claims, and they are “due to be dismissed on those grounds alone.” See e.g., Collins

v. Davol, Inc., 56 F. Supp. 3d 1222, 1228 (N.D. Ala. 2014) (citing Fischer v. Fed.

1 Stewart’s allegations are presumed true for purposes of Fed. R. Civ. P. 12(b)(6). As such, the

facts are taken from the Complaint, doc. 1. See Grossman v. Nationsbank, N.A., 225 F.3d 1228,

1231 (11th Cir. 2000) (“When considering a motion to dismiss, all facts set forth in the plaintiff’s

complaint are to be accepted as true and the court limits its consideration to the pleadings and

exhibits attached thereto.”) (citations and quotation marks omitted). However, legal conclusions

unsupported by factual allegations are not entitled to that assumption of truth. See Iqbal, 556 U.S.

at 662.

Bureau of Prisons, 349 Fed.Appx. 372, 375 n. 2 (11th Cir. 2009)). With the

exception of the failure to intervene claims (Count IV) against Officers Adams and

Altobella, the court provides alternative grounds for dismissal of these abandoned

claims below, beginning in Section B with the claims against Chief Ross in Section

B, followed by the claims against the City in Section C.

A. Claims against Officers Rodney Adams and Nicholas Altobella

(Counts I, IV, V, VI)

Stewart asserts § 1983 claims against Officers Adams and Altobella for

violations of the Fourth Amendment2 by subjecting him to excessive force (Count I)

and failing to intervene (Count IV),3 and state law claims for negligence (Count V)

and assault and battery and infliction of emotional distress (Count VI). See doc. 1.

Defendants contend that Stewart has failed to allege sufficient facts on each of his

claims, or alternatively, that Officers Adams and Altobella are entitled to qualified

immunity. See doc. 7. The court will address the immunity argument first before

2 Stewart claims the Defendants violated his Fourth, Fifth, Eighth, and Fourteenth Amendment

rights to be free from excessive force and cruel and unusual punishment. Doc. 1 at 1. However,

based on the facts he alleges, Stewart’s § 1983 claims are cognizable only under the Fourth

Amendment.

3 Stewart does not specify whether his § 1983 claims are against Officers Adams and Altobella in

their individual or official capacity, or both. To the extent Stewart asserts claims against the

officers in their official capacity, these claims fail. “Because suits against a municipal officer sued

in his official capacity and direct suits against municipalities are functionally equivalent, there no

longer exists a need to bring official-capacity actions against local government officials, because

local government units can be sued directly[.]” Busby v. City of Orlando, 931 F.2d 764, 776 (11th

Cir. 1991) (citations omitted). Adams and Altobella are municipal officers of the City of

Homewood, and any claim against them in their official capacities is tantamount to a claim against

the City. Therefore, the official capacity claims, if any, against these defendants are due to be

dismissed.

turning to the merits of each claim.

i. Qualified Immunity

“[Q]ualified immunity offers complete protection for government officials

sued in their individual capacities as long as their conduct violates no clearly

established statutory or constitutional rights.” Oliver v. Fiorini, 586 F.3d 898, 904

(11th Cir. 2009) (citations omitted). Immunity allows officials to carry out

discretionary duties without fear of liability and harassing litigation. Id. (citations

omitted). Qualified immunity protects from suit “all but the plainly incompetent or

one who is knowingly violating the federal law,” but applies only to officers acting

within their official authority. See id. at 904-05. To assert qualified immunity, a

governmental official must first establish that he was acting within his discretionary

authority. Jones v. Fransen, 857 F.3d 843, 851 (11th Cir. 2017). Discretionary

authority includes “all actions of a governmental official that (1) were undertaken

pursuant to the performance of his duties, and (2) were within the scope of his

authority.” Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994) (citation and

quotation marks omitted). Here, Adams and Altobella, as police officers of the City

of Homewood, had both the authority and the duty to make arrests. See, e.g. Ex Parte

City of Montgomery, 758 So. 2d 565, 570 (Ala. 1999) (holding officers are entitled

to discretionary-function immunity when exercising their judgment on whether to

make an arrest). And, Stewart does not dispute that these officers were acting within

their discretionary authority by arresting him. See doc. 1. Therefore, the Defendants

have satisfied this prong of the analysis.

Once discretionary authority is established, a court is “obliged to grant

qualified immunity to a law enforcement officer unless the plaintiff can demonstrate:

first, that the facts when viewed in a light most favorable to the plaintiff establish a

constitutional violation; and, second, that the illegality of the officer’s actions was

clearly established at the time of the incident.” Pearson v. Callahan, ––– U.S. –––,

129 S. Ct. 808, 815-16, 818 (2009). Thus, to survive the motion to dismiss, Stewart

must present a plausible claim that a constitutional violation occurred and that the

two officers’ conduct violated clearly established law. See Iqbal, 556 U.S. at 678.

ii. Excessive Force and Violation of Due Process (Count I)

With respect to Count I, Stewart has alleged sufficient facts to plead a

plausible claim of a constitutional violation. Allegedly, Officers Adams and

Altobella “detained [him], . . . handcuffed [him], beat [him] while in handcuffs, and

kicked [him] repeatedly in the head . . . then dragged [him] along the asphalt

pavement until the flesh was ripped from his arms and toenails were ripped from his

feet . . . [and] tased [him] excessively to the point that puss began oozing from his

back” while “taunt[ing him] with racial slurs.” See doc. 1 at 4-5. Viewed in the light

most favorable to Stewart, these allegations are sufficient to “show that the officer[s]

violated a constitutional right.” Mercado v. City of Orlando, 407 F.3d 1152, 1156

(11th Cir. 2005).

And, “[i]f such a violation occurred, then [the court] must determine if that

right was clearly established at the time of the incident.” Id. It is settled law that

police officers cannot use force that is “wholly unnecessary to any legitimate law

enforcement purpose.” Lee v. Ferraro, 284 F.3d 1188, 1199 (11th Cir. 2002); see

also Glasscox v. City of Argo, 903 F.3d 1207, 1214 (11th Cir. 2018) (repeated use

of a taser on an incapacitated arrestee presented a genuine issue of material fact as

to excessive force); Slicker v. Jackson, 215 F.3d 1225, 1227 (11th Cir.2002) (kicking

an arrestee who is already in handcuffs violates the Fourth Amendment). More

specific to here, the Fourth Amendment prohibits the use of excessive force in the

course of an arrest. Huebner v. Bradshaw, 935 F.3d 1183, 1190 (11th Cir. 2019).

Therefore, drawing all reasonable inferences in Stewart’s favor, see Keating v. City

of Miami, 598 F.3d 753, 762 (11th Cir. 2010), and taking his allegations as true, the

court finds that Stewart has alleged a plausible violation of a clearly established

constitutional right, and the motion to dismiss the excessive force claim against the

officers in their individual capacities is due to be denied.

iii. Failure to Intervene (Count IV)

Stewart pleads also a claim for failure to intervene against the officers. A

police officer is liable under § 1983 if he “fails or refuses to intervene when a

constitutional violation such as an unprovoked beating takes place in his presence.”

Sebastian v. Ortiz, 918 F.3d 1301, 1312 (11th Cir. 2019). For this liability to attach,

an officer must be both “in a position to intervene and fail to do so.” Id. (citations

and quotation marks omitted). Here, Stewart alleges Officers Adams and Altobella

“had a duty to intervene when they saw illegal conduct taking place in connection

with the handcuffing, dragging, excessive beating, and failure to obtain medical care

for [him].” Doc. 1 at 8. Allegedly, rather than intervene to stop each other, both

officers “detained, tased, handcuffed, beat while in handcuffs, and kicked . . .

Stewart.” See doc. 1 at 4. Again, viewing the facts in the light most favorable to

Stewart, Stewart has plausibly pleaded claims that both officers were in the position

to, but failed to stop the assault. Therefore, as to the two officers, the failure to

intervene claim survives.

iv. State Law Claims

Defendants have moved to dismiss the negligence claims, doc. 1 at 9, and

intentional torts claims, id. at 9-10, Counts V and VI respectively, against the

officers on state-agent immunity grounds. Doc. 7 at 11. Alabama Code § 6-5-338(a)

affords municipal police officers immunity from “tort liability arising out of [their]

conduct in the performance of any discretionary function within the line and scope

of [their] law enforcement duties.” But, “[p]eace officers are not entitled to absolute

immunity under § 6-5-338(a); rather, immunity from tort liability under § 6-5-338(a)

is withheld if an officer acts with willful or malicious intent or in bad faith.” Ex parte

City of Tuskegee, 932 So. 2d 895, 906-07 (Ala. 2005) (citations and quotation marks

omitted). Under the test enumerated in Ex parte Cranman, 792 So. 2d 392 (Ala.

2000), “[Adams and/or Altobella] initially bear[] the burden of demonstrating that

[they were] acting in a function that would entitle [them] to immunity.” Brown v.

City of Huntsville, Alabama, 608 F.3d 724, 741 (11th Cir. 2010) (citing Ex parte

Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006)). “If [defendants] makes such a

showing, the burden then shifts [to Stewart] to show that [Adams and Altobella]

acted willfully, maliciously, fraudulently, in bad faith, or beyond his authority.” Ex

parte Estate of Reynolds, 946 So. 2d at 452.

Applying this framework, “[a]s . . . police officer[s], [Adams and Altobella]

qualif[y] as a peace officer[s] for purposes of [discretionary-function immunity],”

Borders v. City of Huntsville, 875 So. 2d 1168, 1178 (Ala. 2003), and were

“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.” Ex parte Cranman, 792 So. 2d at 405. However, for the reasons stated

below, their motion fails in light of Stewart’s contention that they acted willfully or

with malicious intent.

1. Negligence (Count V)

In Count V, Stewart claims Officers Adams and Altobella “negligently failed

to provide for the safety, security and protection . . . by failing to comply with the

City’s own rules of conduct as it related to the use of force . . . [which] prohibited

the use of excessive force against handcuffed and restrained individuals.” Doc. 1 at

9. Generally, allegations of negligence are not sufficient to overcome state-agent

immunity. See Ex parte City of Tuskegee, 932 So. 2d at 906; see also Stephens v.

City of Butler, Ala., 509 F. Supp. 2d 1098 (S.D. Ala. 2007) (finding an officer was

immune from allegations of negligent acts under Alabama state-agent immunity

law). However, an officer is not entitled to immunity from an allegation of

negligence if he “fail[s] to discharge [the arrest] pursuant to detailed rules or

regulations, such as those stated on a checklist.” Ex Parte Butts, 775 So. 2d 173, 178

(Ala. 2000). Relevant here, Stewart outlines the City’s rules of conduct relating to

use of force against restrained individuals, doc. 1 at 9, and pleads that the two

officers violated these rules. These allegations are sufficient to plead a plausible

claim that Officers Adams and Altobella failed to follow the City’s rules and

regulations and therefore are not entitled to dismissal of Stewart’s negligence claim

on state-agent immunity grounds.

2. Intentional Torts (Count VI)

In Count VI, Stewart pleads claims for assault and battery and infliction of

emotional distress against Officers Adams and Altobella. Doc. 1 at 9-10. “In making

an arrest, a police officer may use reasonable force and may be held liable only if

more force is used than is necessary to effectuate the arrest.” Franklin v. City of

Huntsville, 670 So. 2d 848, 852-53 (Ala. 1995). For the same reasons outlined with

respect to the § 1983 excessive force claim, Stewart’s allegations that the officers

assaulted him while he was handcuffed are sufficient to plead a viable claim for

assault and battery. To overcome the officers’ assertion of state-agent immunity,

however, Stewart must also plausibly allege that Adams and Altobella “acted

willfully, maliciously, fraudulently, in bad faith, or beyond [their] authority.” Ex

parte Estate of Reynolds, 946 So. 2d at 452. Stewart has satisfied this requirement

through his allegations that the officers beat, kicked, repeatedly tased, and dragged

him while handcuffed across asphalt until his toenails scraped from his feet. Doc. 1

at 4-5. Therefore, the motion to dismiss the assault and battery claim against the

officers is due to be denied.

The motion is due to be granted however with respect to the intentional

infliction of emotional distress claims against the officers.4 Alabama law constrains

the circumstances in which a plaintiff may recover for intentional infliction of

emotional distress, or “outrage,” to three categories: (1) wrongful conduct in the

context of a family burial, (2) insurance agents coercing their clients to settle claims,

and (3) egregious sexual harassment. Exford v. City of Montgomery, 887 F. Supp.

4 Though Stewart mentions “negligent infliction of emotional distress,” doc. 1 at 9, the addition of

the word “negligent” is mere legal boilerplate language by Stewart that has no relevance to the

claim he seeks to make in Count VI, which he entitles “Intentional Torts.” Id. Therefore, the court

will treat his infliction of emotional distress claim as one of intentional infliction, not negligent

infliction.

2d 1210, 1230 (M.D. Ala. 2012). While Stewart’s allegations, if true, would shock

the average citizen, the Alabama Supreme Court has not recognized a claim of

outrage in the context of excessive force by law enforcement. Therefore, the motion

to dismiss the outrage claim is due to be granted.

B. Claims against Chief Tim Ross (Counts II, III, IV, and VI)

As outlined fully below, Stewart’s allegations against Chief Ross consist

primarily of boilerplate language and lack any specific factual allegations. See doc.

1. Such pleadings are insufficient to survive a motion to dismiss. See Iqbal, 556 U.S.

at 678. In fact, many of Stewart’s claims are not cognizable under established

precedent, and pleading them runs afoul of Federal Rule of Civil Procedure 11.

i. Negligent Training, Supervision, and Retention (Count II)

In Count I, Stewart pleads a claim against Chief Ross for negligent training,

supervision, and retention. Doc. 1 at 6-7. But, “no such cause of action exists under

Alabama law.” Borton v. City of Dothan, 734 F. Supp. 2d 1237, 1258 (M.D. Ala.

2010).5 Therefore, as to Chief Ross, Count II is due to be dismissed.

ii. Supervisory Liability as to Unnamed Defendants (Count III)

Stewart also pleads a §1983 claim against Chief Ross and unnamed

5 See also Ott v. City of Mobile, 169 F. Supp. 2d 1301, 1314 (S.D. Ala. 2001) (finding plaintiff

failed to show Alabama law recognizes any cause of action against supervisors for negligent

supervision or training of subordinates); Hamilton v. City of Jackson, 508 F. Supp. 2d 1045, 1058

(holding a police chief could not be held liable for negligent training or supervision because

Alabama law does not contemplate the tort as a cause of action).

defendants under the theory of supervisory liability. But, supervisors cannot be held

vicariously liable for the constitutional violations of their subordinates. Piazza v.

Jefferson County, Alabama, 923 F.3d 947, 957 (11th Cir. 2019). Rather, supervisory

liability arises only when the plaintiff alleges the supervisor “personally participated

in the alleged unconstitutional conduct or that there is a causal connection between

the actions of the supervising official and the alleged constitutional deprivation.”

Franklin v. Curry, 738 F.3d 1246, 1249 (11th Cir. 2013). To establish this causal

connection, the plaintiff must meet an “extremely rigorous” standard by alleging one

of the following: (1) that the supervisor failed to correct the alleged deprivation

despite having notice of the need for such a correction based on “a history of

widespread abuse,” (2) that the supervisor’s “custom or policy results in deliberate

indifference to constitutional rights,” or (3) facts supporting “an inference that the

supervisor directed the subordinates to act unlawfully” or (4) facts supporting an

inference that the supervisor failed to stop such actions despite knowing they would

result. Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (citations omitted).

Stewart failed to meet this pleading standard.

A review of the complaint shows that Stewart claims unnamed defendants

“violated their supervisory duties” to monitor and control Officers Adams and

Altobella or care for Stewart, alleging these unnamed defendants were supervisors

who “participat[ed] in and/or order[ed]” the alleged conduct and “failed to limit the

attack.” Doc. 1 at 7-8. However, Stewart fails to identify these unnamed defendants,

and offers only a vague claim that “upon information and belief, among the

identified Defendant Officer[s] . . . were supervisors, like Defendant Chief Ross who

was assigned to supervise and control” Adams and Altobella. Id. Stewart alleges no

facts to support his contention that these supervisors “participat[ed] in and/or

order[ed]” the incident, see id, nor does he specifically allege that Chief Ross or any

of the unnamed supervisors were even present during the incident, id. at 4-5.6 But,

these facts are insufficient to make a claim that Chief Ross’s or any other

supervisor’s conduct caused a constitutional violation. And, Stewart has pleaded no

facts to indicate that Chief Ross or any other unnamed supervisor was on notice of

a need to correct a constitutional violation, that there was a custom or policy resulting

in deliberate indifference to constitutional rights, or that someone else directed

Officers Adams and Altobella to act unlawfully or knew they would do so and failed

to stop them. See generally doc. 1. Because Stewart’s allegations regarding

supervisory liability are generalized and conclusory, the motion to dismiss the

supervisory liability claim is due to be granted.

iii. Failure to Intervene (Count IV)

Stewart also pleads a failure to intervene claim against Chief Ross, which is

6 Stewart pleads only that he was “confronted and assaulted by at least two uniformed officers”

and that “at all relevant times, Defendant Chief Ross was the commanding officer . . . and

responsible for the actions and/or omissions of the aforementioned police officers.”

premised on the Chief’s purported failure to stop Officers Adams and Altobella from

using excessive force against Stewart. “[I]n order for an officer to be liable for failing

to stop police brutality, the officer must be in a position to intervene.” Ensley v.

Soper, 142 F.3d 1402, 1407 (11th Cir. 1998). Rather than pleading specific

contentions, Stewart pleads instead a generalized contention that “[e]ach of the

Defendants had a duty to intervene when they saw illegal conduct taking place” and

“[their] failure to stop the attack and provide medical care violated the Defendants’

duty to intervene.” Doc. 1 at 8. Critically, Stewart does not allege Chief Ross was

present at the scene or had the requisite notice to stop the alleged use of excessive

force. See generally doc. 1. Therefore, the motion to dismiss the failure to intervene

claim against Chief Ross is due to be granted.

iv. Intentional Torts (Count VI)

Stewart also pleads claims of intentional torts against Chief Ross: “As a result

of the Defendants’ actions, . . . the Plaintiff was wrongfully assaulted and battered .

. . These actions also resulted in the intentional or negligent infliction of emotional

distress.” Doc. 1 at 9. Noticeably absent are any specific facts indicating Chief

Ross’s actions contributed to the intentional torts. In fact, Stewart does not even

mention Chief Ross. See id. This pleading is insufficient to state a claim against

Chief Ross, see Iqbal, 556 U.S. at 678, and the motion to dismiss is due to be granted.

C. Claims against the City of Homewood (Counts I, II, IV, and VI)

Stewart pleads a claim under § 1983 against the City for excessive force and

failure to intervene, and state law tort claims of negligent training, supervision, and

retention, assault and battery, and infliction of emotional distress. See doc. 1.

i. Excessive Force (Count I)

A municipality cannot be held vicariously liable for its employee’s

unconstitutional conduct under the theory of respondeat superior. Monell v. Dept. of

Social Services, 436 U.S. 658, 691 (1978). Liability attaches instead under § 1983

only when “execution of a government’s policy or custom . . . inflicts the injury.”

Id. at 694. A plaintiff making claims against a city for the conduct of its police

officers must establish the officers acted pursuant to a city policy or custom. Griffin

v. City of Opa–Loka, 261 F.3d 1295, 1307 (11th Cir.2001). The plaintiff may do so

by pleading specific facts that “identify either (1) an officially promulgated [city]

policy or (2) an unofficial custom or practice of the [city] shown through repeated

acts of a final policy maker for the [city].” Grech v. Clayton County, 335 F.3d 1326,

1329 (11th Cir. 2003).

The complaint does not allege that Officers Adams and Altobella acted

pursuant to a City of Homewood policy or custom. See generally doc. 1. In fact, the

only specific factual mention of a custom or policy discusses the City’s guidelines

for use of force against restrained individuals, which are designed to prevent the

excessive force at issue in this case. Id. at 9. Other than this specific reference,

Stewart’s claims against the City are replete with conclusory allegations.7 The

failure to “identify any policy or custom that caused a constitutional violation”

dooms Stewart’s attempt to hold the City liable for the officers’ alleged use of

excessive force.8 Harvey v. City of Stuart, 296 Fed. App'x. 824, 825 (11th Cir. 2008)

(holding that an arrestee’s claims against a city for its officers’ actions were not

cognizable because he did not allege the officers violated a municipal custom or

policy); see also Grider v. Cook, 522 Fed. App’x 544, 547–48 (11th Cir. 2013).

Accordingly, the motion to dismiss the excessive force claim against the City is due

to be granted.

ii. Negligent Training, Supervision, and Retention (Count II)

Stewart also pleads a claim against the City for negligent training, supervision,

and retention. But, no Alabama court has recognized as legally cognizable a claim

against a municipality for a supervisor’s negligent training or supervision. Borton,

734 F. Supp. 2d at 1258. And, because Stewart’s claim against the City is contingent

7 See doc. 1 at 4 (“[T]he actions involved in this case are the result of the practices, policies, and/or

customs of Defendant City of Homewood employees . . . Defendants were deliberately indifferent

to Timothy Stewart’s constitutional rights and physical welfare”).

8 In his response to the motion to dismiss, Stewart attempts to overcome the dearth of factual

allegations by citing a 2012 case that indicated the City of Homewood had “permitted, encouraged,

and ratified a pattern and practice of misconduct, including the use of excessive force.” Doc. 11 at

5. The court’s review is limited to the four corners of the pleadings, see Travaglio v. American

Exp. Co., 735 F.3d 1266, 1270 (11th Cir. 2013), and a party cannot amend a complaint through

arguments or contentions in a brief.

on Chief Ross’s liability for the same tort, see Voyager Ins. Cos. v. Whitson, 867

So.2d 1065, 1073 (Ala. 2003), in light of Stewart’s failure to state such a claim

against Chief Ross, see supra at 14, the City’s motion is also due to be granted.

iii. Failure to Intervene (Count IV)

To the extent Stewart is pleading a claim against the City

for failure to intervene, this claim fails.9 A municipality may be liable in a failure to

intervene claim only if a member of its police force fails to intervene and this failure

is due to a municipal custom or policy. See Sebastian v. Ortiz, 918 F.3d 1301, 1312

(11th Cir. 2019). Therefore, in the absence of any contention regarding a custom or

policy, the failure to intervene claim against the City is due to be dismissed.

iv. Intentional Torts (Count VI)

To the extent Stewart pleads an intentional tort claim against the City,

Alabama law prohibits such claims against municipalities. Town of Loxley v.

Coleman, 720 So. 2d 907, 909 (Ala. 1998) (holding Alabama Code § 11-47-190

“exclude[s] liability for wanton misconduct” attributable to a city within Alabama’s

boundaries); see, e.g., Waters v. City of Geneva, 47 F. Supp. 3d 1324 (M.D. Ala.

2014); Walker v. City of Huntsville, 62 So. 3d 474 (Ala. 2010). Therefore, the assault

and battery and intentional infliction of emotional distress claims against the City

9 The complaint makes no specific mention to the City, alleging only that all defendants failed “to

stop the attack and provide medical care[,] violat[ing] [their] duty to intervene and put a stop to

the unconstitutional acts taking place.” Doc. 1 at 8.

are due to be dismissed.

IV. CONCLUSION AND ORDER

For the reasons stated above, the Defendants’ Motion to Dismiss, doc. 6, is

GRANTED solely as to Count I against Officers Adams and Altobella in their

official capacities, Count I against Chief Ross and the City of Homewood, Count

III against Chief Ross and unnamed defendants, Count IV against Chief Ross and

the City of Homewood, and Count VI against Officers Adams and Altobella for

infliction of emotional distress and against Chief Ross and the City of Homewood

in its entirety. In all other respects, the motion is DENIED. As such, the remaining

claims are the § 1983 excessive force and due process (Count I) and the failure to

intervene (Count IV) claims against Adams and Altobella in their individual

capacities, and the assault and battery claims (Count VI) against Adams and

Altobella. As to the remaining claims, Adams and Altobella’s answers are due by

November 22, 2019. The parties are DIRECTED to meet and confer and submit by

December 22, 2019 a proposed scheduling order that has this case ready for trial in

December 2020.

DONE the 4th day of November, 2019.

— Apa bh te

ABDUL K. KALLON

UNITED STATES DISTRICT JUDGE

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