R. DAVID PROCTOR, District Judge.
This case is before the court on: (1) the Motion to Dismiss Plaintiff's First Amended Complaint filed by Defendants City of Homewood, Doug Finch, and Ted Springfield (Doc. # 46), (2) the Motion to Strike filed by the City, Finch, and Springfield, (3) the Motion to Dismiss filed by Defendant Jefferson County District Attorney's Office (Doc. # 60), and (4) Plaintiff's Motion for Ex Parte Hearing (Doc. # 64). The motions are fully briefed and under submission. (See Docs. # 47, 51, 53, 76-77, 79).
According to Plaintiff's First Amended Complaint, on October 26, 2013, Defendant Springfield, an officer of the Homewood Police Department, knocked on her door and questioned her about complaints she had made to the Homewood Police Department about a dog. (Doc. # 45 at ¶¶ 4, 15). Plaintiff confirmed that she had complained about the dog, after which Springfield informed her that someone had attempted to kill the dog. (Id. at ¶¶ 15-16). Springfield told Plaintiff that she was his "only suspect" and that he had found "a bowl full of rat poison by your tree in plain view in your yard." (Id. at ¶ 16). Springfield then seized a bowl in Plaintiff's front yard, which was situated above the line of sight from the street and approximately 27 feet from the street. (Id. at ¶ 18). As Springfield seized the bowl, Plaintiff observed that the bowl was clean and shiny. (Id. at ¶ 19). Plaintiff searched her property and found no traces of poison in the yard. (Id. at ¶ 20). But, she discovered that Springfield had searched her back porch and moved many items on the porch. (Id.).
Plaintiff reported the search of her back porch and Springfield's "other inappropriate behavior" to the Homewood Police Department, but claims the Police Department refused to investigate her complaint against Springfield. (Id. at ¶¶ 21-22). According to Plaintiff, the Police Department also refused to investigate her complaint that someone attempted to poison her dog by placing the bowl in her yard. (Id. at ¶ 22). On October 26, 2013, Defendant Springfield submitted a report averring that Plaintiff had complained about the dog that had been poisoned. (Id. at ¶ 23). Springfield reported that he saw a bowl on Plaintiff's property in plain sight from the road that contained "a green pellet which resembles rat poison." (Id. at ¶ 28). Springfield also described the contents of the bowl as an "anti-freeze, rat poison and dog food mixture." (Id. at ¶ 29). Plaintiff alleges that Springfield failed to canvass the neighborhood to determine whether other neighbors had used rat poison or whether other neighbors had spilled antifreeze. (Id. at ¶¶ 32-33).
On November 6, 2013, Defendant Finch, an officer of the Homewood Police Department, wrote a supplemental police report of the poisoning incident. (Id. at ¶¶ 5, 34). Plaintiff claims that Finch's report was inconsistent with Springfield's report because it recounted that the bowl contained "green residue similar to anti-freeze and a pellet similar to rat poison." (Id. at ¶ 35). Moreover, Plaintiff claims that the officers lacked "clear substantive evidence" that the dog had been poisoned because no autopsy was performed after the dog had been euthanized. (Id. at ¶¶ 43-44).
On November 8, 2013, Homewood police officers attempted to arrest Plaintiff pursuant to an arrest warrant. (Id. at ¶ 45). On November 9, 2013, Defendant Springfield interviewed Plaintiff's neighbors about the incident, during which Plaintiff alleges that Springfield slandered and defamed her. (Id. at ¶ 47). That same day, Springfield stopped Plaintiff's friend after she travelled to Plaintiff's home and told that friend that he intended to prosecute Plaintiff because "she tried to get me in trouble." (Id. at ¶¶ 50-51). On November 12, 2013, Plaintiff turned herself in to the Jefferson County Sheriff's Department. (Id. at ¶ 46).
Plaintiff alleges that the Jefferson County District Attorney's Office assisted in the malicious prosecution against her. (Id. at ¶ 52). She claims that the District Attorney's Office delayed her prosecution by delaying testing of the bowl for more than three years. (Id. at ¶¶ 53-56). She characterizes the delay as "a direct indication that the District Attorney's [O]ffice delayed the prosecution of the Plaintiff in order to manufacture evidence against her." (Id. at ¶ 56).
On March 11, 2014, Defendant Springfield testified that he did not investigate other suspects for the poisoning because no one was home. (Id. at ¶ 26). He also testified that he seized the bowl because it was in plain view and eight to ten feet away from the road. (Id. at ¶ 27). In March 2017, Plaintiff was acquitted of animal cruelty. (Id. at ¶ 58).
In November 2015, Plaintiff filed this action against Defendants Finch, City of Homewood, and the Homewood Police Department. (Doc. # 1). In April 2016, the court stayed this action pending Plaintiff's state-court trial for animal cruelty. (Doc. # 26). In March 2017, following Plaintiff's acquittal the court lifted its stay of the case. (Doc. # 42). When the court lifted the stay of this case, it also granted Plaintiff leave to amend her complaint. (Id.).
In March 2017, Plaintiff filed the First Amended Complaint currently before the court. (Doc. # 45). The First Amended Complaint presents several claims under 42 U.S.C. § 1983. First, Plaintiff claims that Defendants violated her rights under the Fourth and Fourteenth Amendments by conducting unreasonable searches and seizures on October 26, 2013. (Id. at ¶¶ 62, 66). Plaintiff also contends that the incident on October 26, 2013 violated her procedural due process and equal protection rights, in violation of the Fourteenth Amendment. (Id. at ¶ 66). Second, Plaintiff claims that the Homewood Police Department failed to properly train and supervise officers in "the making of proper arrests and the lawful use of force employed during the course of an arrest." (Id. at ¶ 71). Third, Plaintiff alleges that Defendant City of Homewood's custom and policy of training officers "to properly make arrests and to use a reasonable amount of force in the course of effecting an arrest" proximately caused officers to use excessive force against her. (Id. at ¶¶ 77-78). Fourth, Plaintiff alleges that the City of Homewood's policy described above proximately caused her false arrest.
Plaintiff's First Amended Complaint contains four additional counts that fail to specify whether they are brought under state law or federal law. In her "Sixth Claim", Plaintiff alleges that Defendants abused the judicial process and maliciously prosecuted her. (Id. at ¶ 84). Her "Seventh Claim" appears to allege that Defendants committed the tort of outrage. (Id. at ¶ 86). Plaintiff's "Eighth Claim" alleges that Defendants City of Homewood, Jefferson County District Attorney's Office, and Jefferson County committed a variety of torts, including abuse of process, false arrest, failure to train, false imprisonment, and slander. (Id. at ¶ 88). Finally, in the "Ninth Claim," Plaintiff claims that "Defendants" failed to properly train and supervise their employees. (Id. at ¶¶ 90-91).
Defendants City of Homewood, Finch, and Springfield have moved to dismiss the First Amended Complaint. (Doc. # 46). Alongside her opposition brief, Plaintiff filed a report from the Alabama Department of Forensic Sciences, a transcript from a probable cause hearing in her state-court criminal action, and a transcript from a motion hearing in that criminal action. (Docs. # 50-1, 50-2, 50-3). Defendants have asked the court to strike those exhibits. (Doc. # 52). Defendant Jefferson County District Attorney's Office also seeks dismissal of the First Amended Complaint. (Doc. # 60). In September 2017, Plaintiff requested leave to submit late briefs, and the court granted her leave to do so. (Docs. # 74, 78).
The court has broad discretion in reviewing a motion to strike. Tracfone Wireless, Inc. v. Access Telecom, Inc., 642 F.Supp.2d 1354, 1360 (S.D. Fla. 2009). Evidence submitted to support a motion can be challenged through a motion to strike, which is usually treated like a motion in limine. Morris v. Precoat Metals, 2013 WL 830868, at *2 (N.D. Ala. Mar. 4, 2013). Generally, motions to strike are disfavored by the courts. See Blake v. Batmasian, 2017 WL 743576, at *1 (S.D. Fla. Feb. 27, 2017). "Moreover, motions to strike are rarely granted absent a showing of prejudice." Stephens v. Trust for Pub. Land, 479 F.Supp.2d 1341, 1346 (N.D. Ga. 2007).
In almost all circumstances, a court cannot consider evidence that is not attached to the complaint in deciding whether to dismiss a claim under Rule 12(b)(6). See SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010) (explaining that an extrinsic document can only be considered in deciding a motion to dismiss if it is central to a plaintiff's claim and its authenticity is not challenged). Plaintiff's exhibits are not due to be considered at this stage of proceedings because she has offered no explanation for why they should be considered. Having said that, because Plaintiff's exhibits cannot be (and have not been) considered by the court in analyzing the Motions to Dismiss, the court finds that Defendants will not be prejudiced by leaving the submitted exhibits in the record. Therefore, Defendants' Motion to Strike (Doc. # 52) is due to be denied.
Plaintiff has requested an ex parte hearing to discuss attorney-client privileged information with the court. (Doc. # 64). Plaintiff filed the motion after the court granted her attorney's Motion to Withdraw, which explained that a difference of opinion between Plaintiff and counsel precluded further representation. (Docs. # 62, 63). Because the court has granted Plaintiff's former attorney leave to withdraw, it concludes that Plaintiff's Motion for Ex Parte Hearing (Doc. # 64) is due to be denied as moot.
The Federal Rules of Civil Procedure require that a complaint provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). However, the complaint must include enough facts "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more than "a formulaic recitation of the elements of a cause of action" do not meet Rule 8 standards, nor do pleadings suffice that are based merely upon "labels and conclusions" or "naked assertion[s]" without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6) motion to dismiss, courts view the allegations in the complaint in the light most favorable to the non-moving party. Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).
To survive a motion to dismiss, a complaint must "state a claim to relief that is plausible on its face." 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although "[t]he plausibility standard is not akin to a `probability requirement,'" the complaint must demonstrate "more than a sheer possibility that a defendant has acted unlawfully." Id. A plausible claim for relief requires "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence" to support the claim. Twombly, 550 U.S. at 556.
In considering a motion to dismiss, a court should "1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, `assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'" Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App'x 136, 138 (11th Cir. 2011) (quoting Am. Dental Assn. v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)). That task is context specific and, to survive the motion, the allegations must permit the court based on its "judicial experience and common sense . . . to infer more than the mere possibility of misconduct." Iqbal, 556 U.S. at 679. If the court determines that well-pleaded facts, accepted as true, do not state a claim that is plausible, the claims are due to be dismissed. Twombly, 550 U.S. at 570.
Plaintiff presents nine counts against the Defendants in her First Amended Complaint. For the reasons explained below, the court concludes that her § 1983 claims against Defendant City of Homewood are due to be dismissed for failure to plead an actionable policy or custom. Moreover, Plaintiff's other claims are due to be dismissed without prejudice because the amended complaint is a classic example of impermissible shotgun pleading.
Plaintiff raises § 1983 claims against Defendant City of Homewood based on its policies and its alleged failures to provide adequate training and supervision to Homewood Police Department officers. (See Doc. # 45 at ¶¶ 71, 77-78, 80). Plaintiff also alleges that the City of Homewood is responsible for the conduct of Defendants Finch and Springfield because its failures to "enforce the law of the State of Alabama and regulations pertaining to arrests and the use of force by police officers [created] within the Homewood Police Department an atmosphere of lawlessness." (Id. at ¶ 74). In response, Defendant City of Homewood argues that the First Amended Complaint presents no plausibly pled custom or policy that caused the alleged constitutional violations. (Doc. # 47 at 8-16).
It is axiomatic that a municipality, such as the City, is only liable under § 1983 when a municipal employee or agent undertakes an action in "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978). "[A] municipality cannot be held liable under § 1983 on a respondeat superior theory." Id. at 690. Accordingly, to hold a municipality liable, a plaintiff "must show: (1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the constitutional violation." McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)). A plaintiff may establish the existence of a municipal "policy" by identifying "(1) an officially promulgated [municipal] policy or (2) an unofficial custom or practice of the [municipality] shown through the repeated acts of a final policymaker." Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc). Plaintiff has not identified any officially promulgated policy, such as an ordinance or administrative order, that caused the alleged constitutional violations.
The First Amended Complaint identifies two potential policies or customs to support Plaintiff's § 1983 claims: (1) the Homewood Police Department's failure to adequately train and supervise officers; and (2) the Homewood Police Department custom and policy of training officers "to properly make arrests and to use a reasonable amount of force." (Doc. # 45 at ¶¶ 71, 77). With regard to the first alleged policy or custom, the Supreme Court has recognized that, in limited circumstances, a decision to not train certain employees about avoiding certain constitutional violations can rise to an official government policy. Connick v. Thompson, 563 U.S. 51, 61 (2011). "A municipality's failure to correct the constitutionally offensive actions of its police department may rise to the level of a `custom or policy' if the municipality tacitly authorizes these actions or displays deliberate indifference towards the police misconduct." Church v. City of Huntsville, 30 F.3d 1332, 1345 (11th Cir. 1994) (quoting Brooks v. Scheib, 813 F.2d 1191, 1193 (11th Cir. 1987)). "[T]o prove the existence of [a] purported policy or custom of deliberate indifference by the City, Plaintiff must show that the City had notice of a need to adequately train or supervise police officers but purposefully did nothing." Dial v. City of Bessemer, 2016 WL 3054728, at *5 (N.D. Ala. May 31, 2016). "[W]ithout 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 and supervise." Gold v. City of Miami, 151 F.3d 1346, 1351 (11th Cir. 1998). A municipality may be placed on notice of a need for additional training or supervision if it is aware of a pattern of constitutional violations or if the likelihood of a constitutional violation is so high that it is obvious additional training or supervision is needed. Barr v. Gee, 437 F. App'x 865, 874 (11th Cir. 2011) (citing Lewis v. City of W. Palm Beach, Fla., 561 F.3d 1288, 1293 (11th Cir. 2009)).
Here, Plaintiff has not plausibly pled that the City had an unofficial custom or practice of inadequately training or supervising police officers. Plaintiff has not alleged any similar incident that would have placed City officials on notice of the need for additional training and supervision. Similarly, Plaintiff has not offered any allegations or argument to explain why additional training or supervision was obviously necessary. Indeed, the First Amended Complaint states that the City of Homewood had a policy of training officers to properly make arrests and use reasonable amounts of force. (Doc. # 45 at ¶ 77). Ultimately, the only allegations supporting a Monell claim relate to the investigation and arrest of Plaintiff herself. And, a single alleged constitutional violation, in isolation, is inadequate to support an inference of an official custom or policy tolerating such constitutional violations.
In her "Third Claim," Plaintiff appears to allege that the City of Homewood's custom or policy of properly training its officers provides a basis for a Monell action against the City. This claim wholly misses the mark. A municipality cannot be held liable "just for instituting a facially constitutional policy." Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1036 (11th Cir. 2001) (en banc), abrogated on other grounds by Twombly, 550 U.S. at 561-63. The policy presented in paragraph 77 of the First Amended Complaint is such a facially constitutional policy and, thus, provides no basis for a § 1983 claim.
In conclusion, Plaintiff has presented no plausible custom or policy upon which a Monell claim can be maintained. Therefore, her § 1983 claims against the City of Homewood are due to be dismissed.
Defendants City of Homewood, Finch, and Springfield argue that the First Amended Complaint is a shotgun complaint that must be dismissed. (Doc. # 47 at 16-18). Specifically, they argue that the Fifth Claim, Sixth Claim, Seventh Claim, Eighth Claim, and Ninth Claim are alleged in a general fashion against all Defendants. (Id. at 17). Plaintiff responds that the First Amended Complaint is neither unintelligible nor confusing. (Doc. # 51 at 9). To the contrary, the court finds that all of the claims in the First Amended Complaint, except for the claims specifically raised against Defendant City of Homewood, are classic shotgun claims.
The Eleventh Circuit has identified four types of shotgun pleadings:
Weiland v. Palm Beach Cnty. Sheriff's Office, 792 F.3d 1313, 1321-23 (11th Cir. 2015) (footnotes omitted). District courts have the inherent authority to dismiss complaints on shotgun pleading grounds. Vibe Micro, Inc. v. Shabanets, 2018 WL 268849, at *2 (11th Cir. Jan. 3, 2018). Nevertheless, the Eleventh Circuit has instructed district courts to allow repleading of a counseled shotgun complaint "if counsel could in good faith make the representations required by Fed. R. Civ. P. 11(b)." Id. (quoting Byrne v. Nezhat, 261 F.3d 1075, 1133 n. 113 (11th Cir. 2001)). Moreover, the court must grant a pro se plaintiff at least one chance to amend a complaint before dismissing an action with prejudice if a more carefully drafted complaint could state a claim. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).
Here, Plaintiff's First Amended Complaint — filed by her former counsel — contains several counts that can only be classified as shotgun counts. Counts One, Five, Six, Seven, and Nine fail to allege which of the Defendants committed the tortious conduct at issue. (See Doc. # 45 at ¶¶ 66, 82, 84, 86, 90-91). See Weiland, 792 F.3d at 1323 (describing such pleadings as shotgun complaints). Although Count Eight specifies that the torts alleged therein were committed by Defendants City of Homewood, Jefferson County District Attorney's Office, and Jefferson County, it presents several causes of actions in a single count (i.e., abuse of process, false arrest, failure to train, false imprisonment, and slander) and fails to specify which of the Defendants is liable for which tort. (See Doc. # 45 at ¶ 88). See Weiland, 792 F.3d at 1322-23. The court agrees with Defendants that these counts are due to be dismissed without prejudice as impermissible shotgun pleadings.
The next question is whether Plaintiff should be given an opportunity to amend her pleadings. "When confronted with a shotgun pleading, the court is supposed to order repleading for a more definite statement of the claim." Hickman v. Hickman, 563 F. App'x 742, 744 (11th Cir. 2014). Accordingly, the court will allow Plaintiff
Because all of the claims against Defendant Jefferson County District Attorney's Office are due to be dismissed on shotgun pleading grounds, the court need not decide whether Plaintiff's claims against the District Attorney's Office are due to be dismissed on absolute immunity grounds. (See Doc. # 60). However, Plaintiff should be cognizant that the court is inclined to agree that the Jefferson County District Attorney's Office is entitled to absolute immunity from any state-law or § 1983 claim. See Garrett v. Talladega Cnty. Drug & Violent Crime Task Force, 983 F.Supp.2d 1369, 1376-78 (N.D. Ala. 2013) (explaining that a county district attorney's office is a state agency for purposes of Eleventh Amendment immunity and that a district attorney's office is not a suable entity under § 1983).
For the reasons explained above, the court concludes that: (1) the Motion to Strike (Doc. # 52) is due to be denied; (2) the Motion for Ex Parte Hearing (Doc. # 64) is due to be denied as moot; and (3) the Motions to Dismiss (Docs. # 46, 60) are due to be granted, subject to Plaintiff's right to replead all claims except for her § 1983 claims against Defendant City of Homewood. An Order consistent with this Memorandum Opinion will be entered.
