Stafford v. Argo, City of

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

PAMELA STAFFORD, et al., )

)

Plaintiffs, )

)

v. ) Case No. 4:20-cv-00340-SGC

)

CITY OF ARGO, et al., )

)

Defendants. )

MEMORANDUM OPINION1

This case arises out of the fatal shooting of a dog owned by the plaintiffs,

Pamela Stafford and Matthew Shaw. Pending before the undersigned is a renewed

motion to dismiss filed by the defendants, the City of Argo and R. Hughes, an officer

with the Argo Police Department who the plaintiffs sue in his individual capacity

only. (Doc. 26). For the reasons discussed below, the defendants’ motion is due to

be granted, and this action is due to be dismissed.

I. Allegations of Amended Complaint

The plaintiffs reside within the city limits of Argo, Alabama. (Doc. 21 at ¶

5). On September 13, 2019, the plaintiffs’ dog escaped from a harness that tethered

her to a tree in the plaintiffs’ front yard. (Id. at ¶ 7). While Stafford was not home

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

pursuant to 28 U.S.C. § 636(c). (Doc. 23).

and was unaware the dog had escaped, Shaw noticed the dog’s absence and left the

property to search for her. (Id. at ¶ 8). In the meantime, a neighbor’s guest saw the

plaintiffs’ dog roaming free and contacted the Argo Police Department to report the

observation. (Id. at ¶¶ 7, 9). Officer Hughes responded to the location from which

the neighbor’s guest made the report and then proceeded to the plaintiffs’ residence.

(Id. at ¶¶ 10, 11). According to the plaintiffs, Officer Hughes had no plan or

equipment to capture or restrain their dog with less-than-lethal force. (Id. at ¶ 11).

Officer Hughes walked up the steps to the plaintiffs’ front porch and knocked

on their unlocked screen door. (Id. at ¶ 12). At this time, the plaintiffs’ dog came

around the side of the house, walked to the bottom of the steps leading up to the front

porch, and began barking at Officer Hughes. (Id. at ¶ 13). Officer Hughes then shot

the plaintiffs’ dog three times – once between the eyes, once on the left side of the

neck, and once on the right side of the thorax – resulting in the dog’s death. (Id. at

¶ 14). Officer Hughes designated the plaintiffs’ property a crime scene, prohibited

anyone (including the plaintiffs) from entering, and completed an investigation. (Id.

at ¶ 15). At Officer Hughes’ request, Shaw brought the plaintiffs’ dog to a

veterinarian to be decapitated and inspected for rabies. (Id. at ¶ 16). The plaintiffs

allege that as the result of this incident they have suffered and continue to suffer

emotional distress and have lost the enjoyment of their pet and, due to the location

of their pet’s death, their real property. (Id. at ¶ 17).

The plaintiffs further allege the City of Argo was aware of the large dog

population within the city limits and the likelihood police officers frequently would

encounter dogs and that is was highly predictable an officer who did not know how

to handle dog encounters would violate citizens’ constitutional rights. (Id. at ¶¶ 23-

24). According to the plaintiffs, the City of Argo nonetheless adopted a policy of

inadequate training and failed to adopt necessary policies. (Id. at ¶¶ 24-25).

Based on the foregoing allegations, the plaintiffs claim (1) Officer Hughes

unconstitutionally seized their dog without due process in violation of the Fourth

and Fourteenth Amendments to the United States Constitution; (2) the City of Argo

is responsible for these constitutional violations because it failed to train its police

officers adequately regarding the appropriate way to respond to a dog encounter; (3)

Officer Hughes intentionally and unlawfully interfered with the plaintiffs’ personal

property (i.e., their dog), in violation of Ala. Code. § 6-5-262; (4) Officer Hughes

committed negligence per se, for which the City of Argo also is liable under the

doctrine of respondeat superior; (5) Officer Hughes committed simple negligence,

for which the City of Argo also is liable under the doctrine of respondeat superior;

and (6) Officer Hughes committed the tort of outrage, for which the City of Argo

also is liable under the doctrine of respondeat superior.2

2 The plaintiffs first and second claims are asserted through 42 U.S.C. § 1983.

The defendants argue Officer Hughes is entitled to qualified immunity with

respect to the federal constitutional claims asserted against him and that the plaintiffs

have failed to state a plausible failure-to-train claim against the City of Argo. (Doc.

27).3 Accordingly, they seek dismissal of the amended complaint pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure.

II. Standard of Review

Rule 12(b)(6) must be considered against the backdrop of Rule 8(a)(2) of the

Federal Rules of Civil Procedure. Rule 8(a)(2) “requires only ‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give

the defendant fair notice of what the … claim is and the grounds upon which it

rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley

v. Gibson, 355 U.S. 41, 47 (1957)). Rule 8 “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, 677 (2009) (quoting

Twombly, 550 U.S. at 555). “[L]abels and conclusions,” “a formulaic recitation of

the elements of a cause of action,” and “naked assertion[s] devoid of further factual

3 The defendants also make substantive arguments for dismissal of the state law claims asserted

against them. (Doc. 27). Because the federal claims are due to be dismissed pursuant to Rule

12(b)(6), the undersigned declines to exercise supplemental jurisdiction over the state law claims

and, therefore, does not address in greater detail the latter claims or the arguments asserted by the

defendants with respect to those claims.

enhancement” are insufficient. Id. at 678 (quoting Twombly, 550 U.S. at 555, 557)

(internal quotation marks omitted).

To survive a motion to dismiss for failure to state a claim on which relief may

be granted brought pursuant to Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility

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. (citing

Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id. (citing Twombly, 550 U.S. at 556).

III. Discussion

A. Section 1983 Claims Against Officer Hughes

Section 1983 provides a cause of action for the deprivation of a federal

statutory or constitutional right by a person acting under color of state law. See 42

U.S.C. § 1983. However, “[q]ualified immunity protects government officials

performing discretionary functions from suits in their individual capacities unless

their conduct violates clearly established statutory or constitutional rights of which

a reasonable person would have known.” Andujar v. Rodriguez, 486 F.3d 1199,

1202 (11th Cir. 2007) (internal quotation marks omitted). “The qualified immunity

standard gives ample room for mistaken judgments by protecting all but the plainly

incompetent or those who knowingly violate the law.” Coffin v. Brandau, 642 F.3d

999, 1017 (11th Cir. 2011) (internal quotation marks omitted). “This

accommodation for reasonable error exists because officials should not err always

on the side of caution because they fear being sued.” Id. at 1018 (internal quotation

marks omitted).

“An official asserting the affirmative defense of qualified immunity must

initially establish that he was acting within his discretionary authority.” Skop v. City

of Atlanta, Georgia, 485 F.3d 1130, 1136 (11th Cir. 2007). “If the official was acting

within the scope of his discretionary authority . . . the burden shifts to the plaintiff

to show that the official is not entitled to qualified immunity.” Id. at 1136-37. “To

overcome qualified immunity, the plaintiff must satisfy a two prong test; he must

show that: (1) the defendant violated a constitutional right, and (2) this right was

clearly established at the time of the alleged violation.” Holloman ex rel. Holloman

v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004).

“Because qualified immunity is a defense not only from liability, but also from

suit, it is important for a court to ascertain the validity of a qualified immunity

defense as early in the lawsuit as possible.” Lee v. Ferraro, 284 F.3d 1188, 1194

(11th Cir. 2002) (internal quotation marks omitted). “It is therefore appropriate for

a district court to grant the defense of qualified immunity at the motion to dismiss

stage if the complaint fails to allege the violation of a clearly established

constitutional right [against an official who was acting within his discretionary

authority].” Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003) (internal

quotation marks omitted).

1. Officer Hughes Was Acting Within His Discretionary

Authority

In determining whether a government official was acting within his

discretionary authority, a court considers whether the official “was (a) performing a

legitimate job-related function (that is, pursuing a job-related goal), (b) through

means that were within his power to utilize.” Holloman ex rel. Holloman, 370 F.3d

at 1265. “In applying each prong of this test, [a court] look[s] to the general nature

of the defendant’s action, temporarily putting aside the fact that it may have been

committed for an unconstitutional purpose, in an unconstitutional manner, to an

unconstitutional extent, or under constitutionally inappropriate circumstances.” Id.

at 1266; see also Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998)

(“The inquiry is not whether it was within the defendant’s authority to commit the

allegedly illegal act. Framed that way, the inquiry is no more than an ‘untenable’

tautology.”). “Put another way, to pass the first step of this discretionary function

test for qualified immunity, the defendant must have been performing a function

that, but for the alleged constitutional infirmity, would have fallen with[in] his

legitimate job description.” Holloman ex rel. Holloman, 370 F.3d at 1266 (emphasis

in original). A court must, however, “be sure not to characterize and assess the

defendant’s act at too high a level of generality.” Id. (explaining characterization of

action at high level of abstraction makes it impossible to determine whether official

was truly acting within proper scope of job-related activities). For example,

[i]n considering whether an act of allegedly excessive force fell within

a police officer’s duties . . . [a court] do[es] not ask whether police have

the right to use excessive force. [It] also do[es] not immediately jump

to a high level of generality and ask whether police are responsible for

enforcing the law or promoting the public interest. [It] instead ask[s]

whether they have the power to attempt to effectuate arrests.

Id. (citing Lee, 284 F.3d at 1194).

Applying this test to the facts at hand, it is clear the conduct challenged by the

plaintiffs occurred within the performance of Officer Hughes’ job-related functions

through means within his power to utilize.4 For the purpose of protecting its citizens,

the City of Argo requires that dogs be kept under restraint and not be allowed to run

at large, see Argo, Ala., Ordinance 2019-03-25 (Mar. 25, 2019),5 and it is axiomatic

that a core function of local law enforcement officers is to respond to reports

suggesting violations of local ordinances implicating public safety. Moreover, under

4 The plaintiffs do not argue otherwise.

5 The ordinance is available at https://www.cityofargo.org/wp-

content/uploads/2019/11/ORDINANCE-NO-2019-03-25-ANIMALS.pdf (last visited Jan. 13,

2021).

appropriate circumstances, deadly force is among the tools an officer may use in the

course of performing his job.

Because Officer Hughes has demonstrated he was acting within his

discretionary authority when the events at issue transpired, the burden shifts to the

plaintiffs to demonstrate (1) Officer Hughes violated their constitutional rights, and

(2) these rights were clearly established at the time of the alleged violation.

“Although the lower federal courts were once required to consider the first prong

before the second, they are now ‘permitted to exercise their sound discretion in

deciding which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.’” Corbitt

v. Vickers, 929 F.3d 1304, 1311 (11th Cir. 2019) (quoting Pearson v. Callahan, 555

U.S. 223, 236 (2009)). Because the undersigned readily concludes the constitutional

rights the plaintiffs allege Officer Hughes violated were not clearly established at

the time of the alleged violation, the qualified immunity analysis begins and ends

with the second prong.

2. Officers Hughes Did Not Violate Any Clearly Established

Constitutional Rights

“[F]air and clear notice to government officials is the cornerstone of qualified

immunity.” Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002) (internal

quotation marks omitted) (emphasis in original). “ ‘The relevant dispositive inquiry

in determining whether a right is clearly established is whether it would be clear to

a reasonable officer that his conduct was unlawful in the situation he confronted.’”

Bashir v. Rockdale Cnty., Georgia, 445 F.3d 1323, 1330 (11th Cir. 2006) (quoting

Saucier v. Katz, 533 U.S. 194, 202 (2001)). “This inquiry ‘must be undertaken in

light of the specific context of the case, not as a broad general proposition.’” Id.

(quoting Saucier, 533 U.S. at 202); see also Wilson v. Layne, 526 U.S. 603, 615

(1999) (“[T]he right allegedly violated must be defined at the appropriate level of

specificity before a court can determine if it was clearly established.”); Ashcroft v.

al-Kidd, 563 U.S. 731, 742 (2011) (noting the Supreme Court has repeatedly told

lower courts not to define clearly established law at a high level of generality).

The Eleventh Circuit has articulated three ways in which fair and clear notice

may be given. Corbitt, 929 F.3d at 1312. First, a “materially similar case [that] has

already been decided” may provide the requisite notice. Id. (internal quotation

marks omitted). “This category consists of cases where judicial precedents are tied

to particularized facts.” Loftus v. Clark-Moore, 690 F.3d 1200, 1205 (11th Cir.

2012). In determining whether a materially similar case clearly establishes a

constitutional right, the Eleventh Circuit has instructed courts within its bounds to

look only to binding precedent – that is decisions emanating from the United States

Supreme Court, the Eleventh Circuit itself, and the highest court of the relevant state

(here, the Alabama Supreme Court). Echols v. Lawton, 913 F.3d 1313, 1324 (11th

Cir. 2019). Second, a “broader, clearly established principle” not tied to

particularized facts may provide the requisite notice. Corbitt, 929 F.3d at 1312

(internal quotation marks omitted). However, “[t]he principle must be established

with obvious clarity by the case law so that every objectively reasonable government

official facing the circumstances would know that the official’s conduct did violate

federal law when the official acted.” Id. (internal quotation marks omitted). Third,

the facts of a particular case may “fit[] within the exception of conduct which so

obviously violates the constitution that prior case law in unnecessary.” Id. (internal

quotation marks omitted). “This narrow category encompasses those situations

where the official’s conduct lies so obviously at the very core of what the relevant

constitutional provision prohibits that the unlawfulness of the conduct was readily

apparent to the official, notwithstanding the lack of case law.” Echols, 913 F.3d at

1325 (internal quotation marks omitted). “Notwithstanding the availability of these

three independent showings, [the Eleventh Circuit] has noted on several occasions

that if case law, in factual terms, has not staked out a bright line, qualified immunity

almost always protects the defendant.” Corbitt, 929 F.3d at 1312 (internal quotation

marks omitted). “[Eleventh Circuit] case law has made clear that ‘obvious clarity’

cases will be rare.” Coffin, 642 F.3d at 1015.

Guided by the foregoing, the undersigned addresses below why the plaintiffs

have failed to allege the violation of a clearly established federal constitutional right

by Officer Hughes, as a consequence of which Officer Hughes is entitled to qualified

immunity.

a. Any Fourth Amendment Right Prohibiting Officer

Hughes’ Conduct Is Not Clearly Established in the

Eleventh Circuit

The Fourth Amendment protects “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.”

U.S. CONST. amd. IV. Every circuit court that has addressed the issue has concluded

a pet dog is an “effect[]” and the shooting of a pet dog by a law enforcement officer

is a “seizure[],” such that the shooting is unconstitutional unless reasonable. See

Maldonado v. Fontanes, 568 F.3d 263, 270-71 (1st Cir. 2009); Carroll v. Cnty. of

Monroe, 712 F.3d 649, 651 (2d Cir. 2013); Brown v. Muhlenberg Twp., 269 F.3d

205, 210 (3d Cir. 2001); Altman v. City of High Point, North Carolina, 330 F.3d

194, 196, 200-205 (4th Cir. 2003); Jones v. Lopez, 689 F. App’x 337, 339 (5th Cir.

2017); Brown v. Battle Creek Police Dep’t, 844 F.3d 556, 567 (6th Cir. 2016); Viilo

v. Eyre, 547 F.3d 707, 710 (7th Cir. 2008); Lesher v. Reed, 12 F.3d 148, 150-51 (8th

Cir. 1994); Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994), overruled on other

grounds by Robinson v. Solano Cnty., 278 F. 3d 1007 (9th Cir. 2002); Mayfield v.

Bethards, 826 F.3d 1252, 1256 (10th Cir. 2016); Robinson v. Pezzat, 818 F.3d 1, 7-

8 (D.C. Cir. 2016). Additionally, district courts within this federal judicial circuit

have addressed the issue, reaching the same conclusion as the circuit courts cited

above. See Davis v. Clayton, 2018 WL 3475438, at *4-5 (N.D. Ala. July 19, 2018);

McLeod v. Dukes, 2018 WL 5928368, at *13 (M.D. Ga. Nov. 13, 2018); Chastang

v. Levy, 319 F. Supp. 3d 1244, 1254 (M.D. Fla. 2018); Esterson v. Broward Cnty.

Sheriff’s Dep’t, 2010 WL 4614725, at *3 (S.D. Fla. Nov. 4, 2010).6 However, the

Eleventh Circuit is not among the circuit courts that have addressed the issue, and

the United States Supreme Court and the Alabama Supreme Court have not

addressed the issue, either.

Some circuit courts have held the weight of authority from other jurisdictions

provided officers with adequate notice it would be unconstitutional to shoot a pet

dog absent a governmental interest justifying the intrusion. See Maldonado, 568

F.3d at 271 (noting three federal circuit courts had addressed the issue); Brown, 844

F.3d at 566-67 (noting seven federal circuit courts had addressed the issue); Viilo,

547 F.3d at 710-11 (noting Third Circuit had addressed issue); Mayfield, 826 F.3d

at 1259 (noting seven federal circuit courts had addressed issue). In at least some of

these circuits, the law of qualified immunity expressly sanctions the use of out-of-

circuit, non-binding authority to establish such immunity. See Brown, 844 F.3d at

566-67 (noting Sixth Circuit law permits reference to decisions of other circuits in

determining whether a constitutional right is clearly established); Mayfield, 826 F.3d

6 Additionally, each of these district courts either concluded the facts before it did not show the

violation of a clearly established constitutional right or did not reach the second prong of the

qualified immunity analysis.

at 1259 (noting a constitutional right is clearly established under Tenth Circuit law

“if the clearly established weight of authority from other courts shows that the right

must be as the plaintiff maintains”) (internal quotation marks omitted).

Additionally, the Supreme Court has stated that in the absence of “

‘controlling authority,’” a “ ‘ “robust consensus of cases of persuasive authority”’”

may provide fair and clear notice particular conduct violates the Constitution. D.C.

v. Wesby, 138 S. Ct. 577, 589-90 (2018) (quoting al-Kidd, 563 U.S. at 741-42) (in

turn quoting Wilson, 526 U.S. at 617). The Eleventh Circuit, in dicta, has repeated

this statement. See Glasscox v. Argo, City of, 903 F.3d 1207, 1217 (11th Cir. 2018)

(“To be clearly established, a legal principle must be . . . ‘dictated by controlling

authority or a robust consensus of cases of persuasive authority.’”) (quoting Wesby).

However, the Eleventh Circuit repeatedly has instructed district courts within

its bounds that only decisions issued by the United States Supreme Court, the

Eleventh Circuit itself, and the highest court of the relevant state may establish

qualified immunity. See Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d

821, 826 n.4 (11th Cir. 1997) (“In this circuit, the law can be ‘clearly established’

for qualified immunity purposes only by decisions of the U.S. Supreme Court,

Eleventh Circuit Court of Appeals, or the highest court of the state where the case

arose.”); Amnesty Int’l, USA v. Battle, 559 F.3d 1170, 1184 (11th Cir. 2009) (“In this

Circuit, only the caselaw of the Supreme Court, the Eleventh Circuit or the law of

the highest court of the state where the events took place . . . can ‘clearly establish’

constitutional rights.”); Coffin, 642 F.3d at 1013 (“Our Court looks only to binding

precedent – cases from the United States Supreme Court, the Eleventh Circuit, and

the highest court of the state under which the claim arose – to determine whether the

right in question was clearly established at the time of the violation.”); Echols, 913

F.3d at 1324 (“We look only to binding precedent at the time of the challenged

conduct – that is the decisions of the Supreme Court, the Eleventh Circuit, or the

highest court of the state.”) (internal quotation marks omitted). Consistent with this

instruction, the Eleventh Circuit has rejected plaintiffs’ arguments out-of-circuit

decisions provided government officials fair and clear notice their conduct was

unconstitutional. See Loftus, 690 F.3d at 1206-07 (rejecting plaintiff’s attempt to

rely on out-of-circuit decisions to establish qualified immunity); Gilmore v. Hodges,

738 F.3d 266, 277 (11th Cir. 2013) (same); Echols, 913 F.3d at 1324 (same).

Because the United States Supreme Court, Eleventh Circuit, and Alabama Supreme

Court have not yet addressed the question whether the fatal shooting of a pet dog

constitutes a Fourth Amendment violation unless reasonable, the plaintiffs cannot

show a materially similar case provided Officer Hughes fair and clear notice his

conduct was unconstitutional.

The plaintiffs cannot show a broader, clearly established principle provided

the requisite notice to Officer Hughes, either. The Supreme Court “has treated the

term ‘effects’ as being synonymous with personal property,” Altman, 330 F.3d at

202 (citing United States v. Place, 462 U.S. 696 (1983); Bond v. United States, 529

U.S. 334 (2000); United States v. Jacobsen, 466 U.S. 109 (1984)), and dogs have

long been considered personal property under Alabama law, see Louisville & N.R.

Co. v. Fitzpatrick, 129 Ala. 322, 324-25 (1901) (holding owner of dog killed by

defendant’s negligent operation of rail engine and cars could recover for destruction

of his “property”); S. Ry. Co. v. Harris, 93 So. 470, 470 (Ala. 1922) (“A dog is

personal property.”); Hogan v. Hogan, 199 So. 3d 50, 56 (Ala. Civ. App. 2015)

(“Alabama has long held that dogs are property.”). Moreover, the Supreme Court

has held “[a] ‘seizure’ of property occurs when there is some meaningful

interference with an individual’s possessory interests in that property,” such as by

destruction of the property. Jacobsen, 466 U.S. at 113, 124-24.

In Brown, the Third Circuit held the right at issue was clearly established by

Pennsylvania law’s treatment of dogs as personal property and the general principles

articulated in Jacobsen and Place. 269 F.3d at 211. However, Eleventh Circuit

precedent, which is the controlling authority this court must follow, requires a

contrary result. As noted, cases where a broader, clearly established principle not

tied to particularized facts satisfies the second prong of the qualified immunity

analysis are rare. Coffin, 642 F.3d at 1015. “[The Eleventh Circuit] ha[s] held time

and again that clearly established general principles of law will seldom if ever suffice

to strip a defendant of qualified immunity.” Harbert Int’l, Inc., 157 F.3d at 1284.

“A reasonable official’s awareness of the existence of an abstract right, such as a

right to be free of excessive force, does not equate to knowledge that his conduct

infringes the right.” Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997); see also

Jones v. Fransen, 857 F.3d 843, 854-55 (11th Cir. 2017) (holding general principle

prohibiting use of excessive force during an arrest did not provide officers with clear

notice the force they deployed under the circumstances they faced was

unconstitutional). Moreover, “[the Eleventh Circuit] ha[s] stated time and again that

‘officials are not obligated to be creative or imaginative in drawing analogies from

previously decided cases.” Gilmore, 738 F.3d at 278.

Applying this guidance, the general principles discussed above are too general

and abstract to have provided Officer Hughes with fair and clear notice his conduct

violated the plaintiffs’ Fourth Amendment rights. The undersigned cannot conclude

every objectively reasonable officer confronted by a loose, barking dog would string

together these general principles and understand that shooting the dog would be a

Fourth Amendment violation. Additionally, the undersigned notes “a clearly

established violation of state law cannot put an official on notice that his conduct

would also violate the Constitution because section 1983 protects only against

violations of federally protected rights.” Echols, 913 F.3d at 1324 (internal

quotation marks omitted). “[The Eleventh Circuit] ha[s] stressed in [its] [] cases that

Section 1983 must not be used as a font of tort law to convert state tort claims into

federal causes of action.” Peterson v. Baker, 504 F.3d 1331, 1336 (11th Cir. 2007)

(internal quotation marks omitted). Therefore, while it may be clear the killing of a

pet dog gives rise to a tort claim under Alabama law, that does nothing to establish

the existence of a clear federal constitutional claim.

Finally, Officer Hughes’ conduct does not fall within the narrow category of

cases involving conduct so obviously violative of the Fourth Amendment that case

law is unnecessary to provide notice of the unconstitutionality. Cf. Lee, 284 F.3d at

1198-1200 (holding police officer’s conduct – taking fully-secured and handcuffed

arrestee to back of car and slamming her head against trunk – was obvious

constitutional violation falling within narrow category of cases for which pre-

existing case law is unnecessary to provide notice of unconstitutionality); Priester

v. City of Riviera Beach, 208 F.3d 919, 927 (11th Cir. 2000) (holding the same with

respect to police officer who ordered and allowed his dog to attack and bite the fully-

subdued plaintiff for at least two minutes and threated to kill plaintiff when plaintiff

kicked dog in effort to resist unprovoked attack). The plaintiffs’ allegations,

accepted as true, do not come close to the depraved conduct held to constitute

obvious constitutional violations in Lee and Priester. See Gilmore, 738 F.3d at 279-

80 (holding failure to provide inmate with hearing aid batteries came nowhere close

to “depraved, inhumane treatment” at issue in Lee and Priester).

For the foregoing reasons, Officer Hughes is entitled to qualified immunity

with respect to the plaintiffs’ Fourth Amendment claim, which is due to be dismissed

with prejudice pursuant to Rule 12(b)(6).

b. The Plaintiffs Have Failed to Demonstrate the

Violation of a Clearly Established Right Under the

Fourteenth Amendment

The Fourteenth Amendment prohibits a state from depriving a citizen of his

property without affording him due process of law. U.S. CONST. amd. XIV, § 1.

“The Due Process Clause provides two different kinds of constitutional protections:

procedural due process and substantive due process.” Maddox v. Stephens, 727 F.3d

1109, 1118 (11th Cir. 2018). “A violation of either of these two kinds of protection

may form the basis for a suit under § 1983.” Id. The amended complaint does not

make clear whether the plaintiffs assert a procedural due process claim, a substantive

due process claim, or both. The plaintiffs’ response to the defendants’ renewed

motion to dismiss does nothing to clarify the issue, failing to address their due

process claim(s) beyond merely referencing “due process of law” and the

“Fourteenth Amendment,” make any argument with respect to their due process

claim(s), or cite any authority that would demonstrate the facts alleged in their

amended complaint, taken as true, give rise to the violation of clearly established

procedural or substantive due process rights. Accordingly, Officer Hughes is

entitled to qualified immunity with respect to the plaintiffs’ Fourteenth Amendment

claim, which is due to be dismissed with prejudice pursuant to Rule 12(b)(6).

B. Section 1983 Claim Against City of Argo

Although the United States Supreme Court has held a municipality is subject

to liability under § 1983, such liability cannot be based on the theory of respondeat

superior. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-94 (1978). A

municipality is subject to § 1983 liability only if a policy or custom of the

municipality causes a constitutional violation. Id. at 694. Under “limited

circumstances,” a municipality’s failure to train may constitute a policy or custom

giving rise to § 1983 liability. City of Canton, Ohio v. Harris, 489 U.S. 378, 387

(1989); see also Connick v. Thompson, 563 U.S. 51, 61 (2011) (“A municipality’s

culpability for a deprivation of rights is at its most tenuous where a claim turns on a

failure to train.”); Davis v. City of Montgomery, 220 F. Supp. 3d 1275, 1282 (M.D.

Ala. 2016) (“This third line of so-called failure-to-train liability is especially rare.”).

This is where a failure to train “amounts to deliberate indifference to the rights of [a

municipality’s inhabitants].” City of Canton, 489 U.S. at 388.

“Deliberate indifference is a stringent standard of fault, requiring proof that a

municipal actor disregarded a known or obvious consequence of his action.”

Connick, 563 U.S. at 61 (internal quotation marks omitted). “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.” Id. “The city’s ‘policy of inaction’ in light of notice that its program will

cause constitutional violations is the functional equivalent of a decision by the city

itself to violate the Constitution.” Id. at 61-62 (internal quotation marks omitted).

The Eleventh Circuit “repeatedly has held that without notice of a need to train or

supervise in a particular area a municipality is not liable as a matter of law for any

failure to train or supervise.” Gold v. City of Miami, 151 F.3d 1346, 1351 (11th Cir.

1998).

A city may be put on notice of a need to train in two ways. Lewis v. City of

W. Palm Beach, Florida, 561 F.3d 1288, 1293 (11th Cir. 2009). “A pattern of similar

constitutional violations by untrained employees is ordinarily necessary to

demonstrate deliberate indifference for purposes of failure to train.” Connick, 563

U.S. at 62 (internal quotation marks omitted). “[I]f the city is aware that a pattern

of constitutional violations exists, and nevertheless fails to provide adequate

training, it is considered to be deliberately indifferent.” Lewis, 561 F.3d at 1293.

However, the Supreme Court has “left open the possibility that, in a narrow

range of circumstances, a pattern of similar violations might not be necessary to

show deliberate indifference.” Connick, 563 U.S. at 63 (internal quotation marks

omitted) (discussing Canton). This is where “the likelihood for constitutional

violation is so high that the need for training would be obvious.” Lewis, 561 F.3d at

1293.

[In Canton,] [t]he Court posed the hypothetical example of a city that

arms its police force with firearms and deploys the armed officers into

the public to capture fleeing felons without training the officers in the

constitutional limitation on the use of deadly force. Given the known

frequency with which police attempt to arrest fleeing felons and the

predictability that an officer lacking specific tools to handle that

situation will violate citizens’ rights, the Court theorized that a city’s

decision not to train the officers about constitutional limits on the use

of deadly force could reflect the city’s deliberate indifference to the

highly predictable consequence, namely, violations of constitutional

rights.

Connick, 563 U.S. at 64-63 (internal quotations marks and citation omitted). The

so-called “single-incident liability exception” “is predicated on (1) the likelihood

that a [municipal employee] will be confronted with a specific situation and (2) the

predictability that [the employee], when confronted with that situation, will violate

a person’s constitutional rights.” Davis, 220 F. Supp. 3d at 1284. Neither the

Supreme Court nor the Eleventh Circuit has ever applied the single-incident liability

exception. Vielma v. Gruler, 808 F. App’x 872, 883 (2020).

Implicit in the foregoing discussion is that absent the violation of a

constitutional right by a municipal employee, a municipality cannot be liable for

failing to train the employee. See Vineyard v. Cnty. of Murray, Georgia, 990 F.2d

1207, 1211 (11th Cir. 1993) (“Only when it is clear that a violation of specific rights

has occurred can the question of § 1983 municipal liability for the injury arise.”);

Rooney v. Watson, 101 F.3d 1378, 1381, 1381 n.2 (11th Cir. 1996) (holding plaintiffs

could not maintain § 1983 claim against county based on either unconstitutional

custom or policy theory or failure-to-train theory where court had determined

plaintiffs suffered no underlying constitutional deprivation). Above, the

undersigned declined to address whether the amended complaint plausibly alleges

the violation of a constitutional right by Officer Hughes, instead exercising the

discretion to proceed under the “clearly established” prong of the qualified immunity

analysis. Similarly, it is unnecessary to address the question in the context of the

plaintiffs’ § 1983 claim against the City of Argo because, even assuming a

constitutional violation by Officer Hughes, the amended complaint fails to plausibly

allege the City was responsible for the violation.

First, the plaintiffs do not allege a pattern of similar constitutional violations

in their amended complaint and admit as much in their response to the defendants’

renewed motion to dismiss. Second, the allegations included in the amended

complaint that fairly could be construed as an attempt to proceed under the single-

incident liability exception are conclusory. More specifically, the allegations that

the City of Argo was aware of the large dog population within the city limits and the

likelihood police officers would frequently encounter dogs, and that it was highly

predictable an officer who did not know how to handle dog encounters would violate

citizens’ constitutional rights, are naked assertions lacking factual enhancement. See

Davis, 220 F. Supp. 3d at 1284-85 (holding the same with respect to allegations City

of Montgomery was aware police officers often encountered citizens with hearing

and/or speech disabilities and that it was highly predictable an officer who did not

know how to interact with such citizens would violate their constitutional rights).

Likewise, the allegations the City of Argo adopted a policy of inadequate training

and failed to adopt necessary policies are nothing more than legal conclusions. See

Whitaker v. Miami-Dade Cnty., 126 F. Supp. 3d 1313, 1327 (S.D. Fla. 2015)

(holding allegations Miami-Dade County failed to adequately train its police officers

in techniques designed to prevent encounters with potential suspects from becoming

volatile or dangerous were not well-pleaded facts but, rather, conclusory assertions).

Absent any factual allegations at least as to why it was highly predictable an officer

who did not know how to handle dog encounters would violate citizens’

constitutional rights or what training would have been adequate to equip an officer

with this knowledge, the type of municipal liability hypothesized by the Supreme

Court in Canton cannot reasonably be inferred from the amended complaint. See

Vielma, 808 F. App’x at 883 (holding the same where plaintiffs did not provide any

specifics as to what they contended would have been constitutionally adequate

training for police officers who respond to a mass shooting at a nightclub or why the

need for that very specific training would have been obvious to the City of Orlando).

The plaintiffs’ primary argument is that their amended complaint creates a

reasonable expectation discovery – specifically, discovery regarding the training, if

any, the City of Argo provides police officers regarding dog encounters – will reveal

evidence that supports their failure-to-train claim. However, “Rule 8 . . . does not

unlock the doors of discovery for a plaintiff armed with nothing more than

conclusions.” Iqbal, 556 U.S. at 678-79. Because conclusions are all the plaintiffs

allege in support of their failure-to-train claim against the City of Argo, the plaintiffs

are not entitled to discovery on the claim, which necessarily fails and is due to be

dismissed with prejudice pursuant to Rule 12(b)(6).

C. State Law Claims

Because the § 1983 claims asserted against Officer Hughes and the City of

Argo are due to be dismissed, the undersigned declines to exercise supplemental

jurisdiction over the state law claims asserted against these defendants, pursuant to

28 U.S.C. § 1367(c)(3). Subsection (a) of § 1367 permits a federal district court to

exercise supplemental jurisdiction over state law claims that are so related to claims

in an action over which it has original jurisdiction as to “form part of the same case

or controversy under Article III of the United States Constitution.” § 1367(a).

However, subsection (c)(3) of § 1367 permits a federal district court to decline the

exercise of supplemental jurisdiction over a claim if it “has dismissed all claims over

which it has original jurisdiction.” § 1367(c)(3). When determining whether to

decline the exercise of supplemental jurisdiction under § 1367(c)(3), a court should

consider judicial economy, convenience, fairness to litigants, and comity. Carnegie-

Mellon Univ. v. Cohill, 484 U.S. 343, 349-50 (1988). This case is in the early stages

of litigation, such that the interests of fairness and judicial economy would not be

disserved by declining the exercise of supplemental jurisdiction. Furthermore,

comity suggests the Alabama courts should be allowed to decide claims arising

under Alabama law. See Baggett v. First Nat. Bank of Gainesville, 117 F.3d 1342,

1353 (11th Cir. 1997) (“State courts, not federal courts, should be the final arbiters

of state law.”). Finally, the Eleventh Circuit has encouraged district courts to dismiss

remaining state law claims when federal claims have been dismissed prior to trial.

Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir. 2004). For these reasons,

the state law claims asserted against the defendants are due to be dismissed without

prejudice.7

IV. Conclusion

For the foregoing reasons, the defendants’ motion to dismiss (Doc. 26) is due

to be granted. Officer Hughes is entitled to qualified immunity with respect to the

plaintiffs’ Fourth and Fourteenth Amendment claims, which are due to be dismissed

with prejudice pursuant to Rule 12(b)(6). Moreover, the failure-to-train claim

7 Section 1367(d) tolls the statute of limitations for any claim asserted under § 1367(a) while the

claim is pending and for a period of thirty days after it is dismissed, unless state law provides for

a longer tolling period. § 1367(d).

asserted against the City of Argo is due to be dismissed pursuant to Rule 12(b)(6)

for failure to state a claim on which relief may be granted.® Given the plaintiffs’

federal claims are due to be dismissed, the undersigned declines to exercise

supplemental jurisdiction over the plaintiffs’ state law claims, which are due to be

dismissed without prejudice. A separate order will be entered.

DONE this 21st day of January, 2021.

STACI G. CORNELIUS

U.S. MAGISTRATE JUDGE

8 The plaintiffs have not requested leave to further amend their complaint to state plausible federal

claims against the defendants. See Daewoo v. Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th

Cir. 2002) (“A district court is not required to grant a plaintiff leave to amend his complaint sua

sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor

requested leave to amend before the district court.”’).

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