SHARON LOVELACE BLACKBURN, Senior District Judge.
This case is before the court on defendant Birmingham Fire and Rescue Service's Motion to Dismiss, (Doc. 10),
A complaint is required to contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A defendant may move to dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) if the plaintiff has failed to state a claim upon which relief may be granted. To survive a 12(b)(6) motion, the complaint "does not need detailed factual allegations;" however, the "plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and citations omitted). Accordingly, "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (citations and footnote omitted). The plaintiff need not prove his case, but must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570 (emphasis added).
Additionally, "[w]hen 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.'" Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993)). Further, all "reasonable inferences" are drawn in favor of the plaintiff. St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002). However, "`[u]nsupported conclusions of law or of mixed fact and law have long been recognized not to prevent a Rule 12(b)(6) dismissal.'" Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir. 2003) (quoting Marsh v. Butler Cnty., 268 F.3d 1014, 1036 n.16 (11th Cir. 2001)). Therefore, though the court must accept all factual allegations as true, it is "not bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Defendant Suzanne S. Childers, a judge presiding in the Circuit Court of Jefferson County, Alabama at the time of the alleged actions giving rise to plaintiff's claims, moves to dismiss all claims against her on the basis of immunity and moves to dismiss that part of plaintiff's Complaint barred by the applicable statute of limitations. (Doc. 11 at 1-2.)
"All constitutional claims brought under § 1983 are tort actions, subject to the statute of limitations governing personal injury actions in the state where the § 1983 action has been brought." Powell v. Thomas, 643 F.3d 1300, 1303 (11th Cir. 2011) (quoting Crowe v. Donald, 528 F.3d 1290, 1292 (11th Cir. 2008)) (internal quotations omitted). Alabama imposes a two-year limitations period, so plaintiff must have brought his claims within two years of the date the limitations period began to run. See id. The limitations period begins running when "facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights." McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008). Plaintiff filed this action on June 1, 2014. (Doc. 1.) To the extent the alleged actions in plaintiff's Complaint occurred before June 1, 2012, claims arising from those actions are time-barred.
Plaintiff alleges that on June 6, 2012, defendant Childers entered a judgment holding him in contempt of court for actions occurring on January 25, 2012. In this Circuit,
Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005).
Defendant Childers's alleged conduct occurred in her judicial capacity and related to divorce proceedings over which she had jurisdiction. Therefore, to the extent plaintiff seeks money damages from defendant Childers for this conduct, plaintiff's claims are due to be dismissed based on absolute judicial immunity. Furthermore, to the extent plaintiff is seeking declaratory or injunctive relief, such relief is unavailable under the Rooker-Feldman doctrine barring "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Green v. Jefferson County Commission, 563 F.3d 1243, 1249 (11th Cir. 2009) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). In any event, plaintiff's claim is moot, given that the Alabama Court of Civil Appeals reversed defendant Childers's June 15, 2012 order holding plaintiff in contempt for actions he took at a proceeding on January 25, 2012. See White v. White, 124 So.3d 734, 738 (Ala. Civ. App. 2013).
The remaining allegation in plaintiff's Complaint
Defendant Birmingham Fire and Rescue Service (hereafter "defendant BFRS") moves to dismiss plaintiff's Complaint on the basis that it is not a legal entity subject to suit. (Doc. 10 at 1-2.) "Sheriff's departments and police departments are not usually considered legal entities subject to suit." Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (citations omitted). Under Alabama law, a police department is not a suable entity under state law or § 1983. Seltzer v. Mobile City Police Dept., Civil Action No. 07-0383-WS-M, 2008 WL 3852679, at *2 (S.D. Ala. Aug. 6, 2008) (citation omitted). Similarly, defendant BFRS, as a division or department of the City of Birmingham, is not a suable entity, and as such, all claims against defendant BFRS are due to be dismissed.
Defendant BFRS also moves to dismiss claims brought against it for plaintiff's failure to state a claim upon which relief may be granted. The court finds this additional ground for dismissal meritorious. Even assuming plaintiff could sue defendant BFRS, plaintiff failed to state any constitutional deprivation by defendant BFRS. Plaintiff makes no allegations regarding defendant BFRS in his Complaint. (See Doc. 1.) Even if the court considered the allegations in Document 13 that paramedics arrived at the courthouse to transport plaintiff to the hospital and delayed his transportation for thirty minutes, as discussed above, those allegations occurred on May 30, 2012, which is outside the two-year limitations period.
Finally, defendant BFRS moves to dismiss plaintiff's claims for lack of proper service. (Doc. 10 at 2.) Fed. R. Civ. P. 4(j)(2) provides, "A state, a municipal corporation, or any other state-created governmental organization that is subject to suit must be served by: (A) delivering a copy of the summons and of the complaint to its chief executive officer; or (B) serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant." Alabama Rule of Civil Procedure 4(c)(8) states that service of process upon a local government must be effected "by serving the chief executive officer or the clerk, or other person designated by appointment or by statute to receive service of process. . . ." Because plaintiff served defendant BFRS directly, plaintiff failed to perfect service according to the Federal Rules of Civil Procedure. For the foregoing reasons, plaintiff's claims against defendant BFRS are due to be dismissed.
Plaintiff seeks leave of the court to amend his Complaint to add a party, previously listed as a "Fictitious Defendant," to this action. In both the Motion to Amend Complaint, (Doc. 16), and the Amended Motion to Amend Complaint, (Doc. 17), which are virtually identical, plaintiff states that he wants to add "the true party to this cause of action," but does not identify "the true party" in either Motion, or state any facts supporting a claim against that party. (Doc. 16 at 1; see also Doc. 17 at 1.)
Even if plaintiff had identified the party he seeks to add, all claims against that party are time-barred. Plaintiff states he is bringing a motion to amend pursuant to Federal Rule of Civil Procedure 15(a)(2), which governs amendments other than those made as a matter of course. Rule 15(a)(2) provides that "a party may amend its pleading only with the opposing party's written consent or the court's leave," and that "[t]he court should freely give leave when justice so requires." However, the issue is not whether the court will grant plaintiff leave to amend, but whether plaintiff can amend.
Replacing a fictitious party with a specifically-named defendant is "a change in the parties sued." Wayne v. Jarvis, 197 F.3d 1098, 1102-03 (11th Cir. 1999), overruled on other grounds by Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003). Plaintiff moved to amend his Complaint to replace a fictitious party with a new party on March 3, 2015 and again on March 18, 2015. (Docs. 16 and 17.) Because all of the allegations in plaintiff's Complaint occurred in 2012,
For the foregoing reasons, defendant Suzanne S. Childers's Motion to Dismiss, (Doc. 11), and defendant Birmingham Fire and Rescue Service's Motion to Dismiss, (Doc. 10), are due to be granted, and plaintiff's Motions to Amend his Complaint, (Docs. 16 and 17), are due to be denied. This case is due to be dismissed with prejudice. An order in accordance will be entered contemporaneously with this Memorandum Opinion.
The court takes judicial notice of the facts relating to this incident, as stated by the Alabama Court of Civil Appeals in White v. White, 124 So.3d 734 (Ala. Civ. App. 2013). See Fed. R. Evid. 201. There, the court stated,
Id. at 735 (emphasis added). To the extent plaintiff attempts to state a claim against defendant Childers for depriving plaintiff of medical care, (and regardless of whether that claim is viable), that claim would be barred by the statute of limitations, as plaintiff's allegations relate to events occurring on May 30, 2012, and thus, outside the two-year limitations period.
