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Case 2:16-Cv-00557-WKW-WC Document 59 Filed 04/11/18 Page 1 of 28 Case 2:16-cv-00557-WKW-WC Document 59 Filed 04/11/18 Page 1 of 28 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION NELLIE RUTH GUNN, individually ) and as Administratrix of the Estate of ) Gregory Gunn, Deceased, ) ) Plaintiff, ) ) v. ) CASE NO. 2:16-CV-557-WKW ) (WO) CITY OF MONTGOMERY, ) ALABAMA, et al. ) ) Defendants. ) MEMORANDUM OPINION AND ORDER On March 2, 2017, Defendant Aaron Cody Smith filed a motion to dismiss. (Doc. # 42.) On January 24, 2018, the Magistrate Judge filed a Recommendation that the motion be granted in part and denied in part. (Doc. # 55.) On February 7, 2018, objections were filed by Defendants City of Montgomery and Ernest N. Finley, Jr. (Doc. # 56), Defendant Smith (Doc. # 57), and Plaintiff Nellie Ruth Gunn (Doc. # 58). Upon an independent and de novo review1 of those portions of the Recommendation to which objection is made, the Recommendation is due to be adopted. See 28 U.S.C. § 636(b). 1 A district judge makes a de novo determination of those portions of the report to which objection is made. The district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see Fed. R. Civ. P. 72(b)(3). Case 2:16-cv-00557-WKW-WC Document 59 Filed 04/11/18 Page 2 of 28 I. STANDARD OF REVIEW A. Rule 12(b)(1) Motion to Dismiss for Lack of Jurisdiction Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). This court is “‘empowered to hear only those cases within the judicial power of the United States as defined by Article III of the Constitution,’ and which have been entrusted to them by a jurisdictional grant authorized by Congress.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). Therefore, a federal court is obligated to inquire into subject matter jurisdiction sua sponte “at the earliest possible stage in the proceedings.” Id. at 410. “It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 511 U.S. at 377. A motion to dismiss for lack of Article III standing implicates the court’s subject matter jurisdiction. Duty Free Ams., Inc. v. Estee Lauder Companies, Inc., 797 F.3d 1248, 1271 (11th Cir. 2015). Rule 12(b)(1) of the Federal Rules of Civil Procedure governs motions to dismiss for lack of subject matter jurisdiction. In this case, Defenant’s Rule 12(b)(1) motion to dismiss for lack of jurisdiction presents a “facial attack” on the existence of subject matter jurisdiction. A “facial attack” on 2 Case 2:16-cv-00557-WKW-WC Document 59 Filed 04/11/18 Page 3 of 28 the complaint “require[s] the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). Thus, the standard of review for a facial jurisdictional challenge is functionally comparable to the standard of review applicable to Defendant’s Rule 12(b)(6) motion to dismiss. See id. (“On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion.”). B. Rule 12(b)(6) Motion to Dismiss When evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must take the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. Resnick v. AvMed, Inc., 693 F.3d 1317, 1321–22 (11th Cir. 2012). To survive Rule 12(b)(6) scrutiny, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[F]acial plausibility” exists “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). 3 Case 2:16-cv-00557-WKW-WC Document 59 Filed 04/11/18 Page 4 of 28 II. FACTS2 In the very early morning hours of February 25, 2016, Defendant Aaron Cody Smith, a white police officer for the City of Montgomery, Alabama, was working alone on patrol. He confronted Gregory Gunn, a 58-year-old African-American, as Mr. Gunn was walking home from a card game at a neighbor’s house. Without any basis for reasonable suspicion that Mr. Gunn was involved in criminal activity, Smith approached Mr. Gunn and initiated a “stop and frisk.” Mr. Gunn was not armed, and Smith had no reason to believe he was armed. Before Smith completed the pat-down, Mr. Gunn fled in the direction of his home. Smith, still lacking any reasonable suspicion that Mr. Gunn was involved in criminal activity, pursued Mr. Gunn on foot. During the pursuit, Smith deployed a Taser on Mr. Gunn at least three times, even though Mr. Gunn had not threatened Smith and Smith had no reason to fear for his own safety. Because the Taser failed to stop Mr. Gunn’s flight, Smith struck Mr. Gunn several times with an expandable metal baton. During the confrontation, Mr. Gunn made no oral threats or aggressive moves, and he never tried to reach for any of Smith’s weapons. Nevertheless, by the time Mr. Gunn reached his next-door neighbor’s house, Smith brandished his service firearm and fired seven shots at Mr. Gunn, striking him five times and killing him. 2 The facts set forth in this Memorandum Opinion are as alleged in the complaint. (Doc. # 1 at ¶¶ 12-82.) 4 Case 2:16-cv-00557-WKW-WC Document 59 Filed 04/11/18 Page 5 of 28 Mr. Gunn died in his next-door neighbor’s front yard. When he died, he was only steps away from the home he shared with his mother, Plaintiff Nellie Ruth Gunn. III. PROCEDURAL HISTORY On July 8, 2016, Plaintiff filed this suit in her individual capacity and as administratrix of the estate of Gregory Gunn. She asserts claims under 42 U.S.C. § 1983 and state law. With respect to the § 1983 claims, Plaintiff seeks to recover personally for loss of companionship and support (Doc. # 1 at ¶¶ 131, 173, 189, 206, 227) and in her representative capacity for the death of her son.3 On August 11, 2016, Defendants Finley4 and City of Montgomery filed a motion to dismiss all Plaintiff’s individual and representative-capacity claims. On March 2, 2017, the Magistrate Judge entered a Recommendation that the motion to dismiss be granted as to Plaintiff’s individual-capacity § 1983 claims against Defendants Finley and City of Montgomery, and denied as to the remainder of her claims. (Doc. # 41 at 8.) On March 24, 2017, the court adopted the Recommendation of the Magistrate Judge. (Doc. # 47.) 3 “[W]hen a constitutional violation actually causes the injured party’s death, a § 1983 claim can be asserted through the Alabama wrongful death statute, Ala. Code [1975] § 6–5–410.9.” Estate of Gilliam ex rel. Waldroup v. City of Prattville, 639 F.3d 1041, 1047 (11th Cir. 2011). Alabama’s wrongful death statute allows a wrongful death action to be brought by the representative of the decedent’s estate. Ala. Code 1975 § 6-5-410. 4 Defendant Finley is sued in his individual and representative capacity as chief of police for the City of Montgomery. He is not alleged to have personally participated in the shooting of Plaintiff’s son. 5 Case 2:16-cv-00557-WKW-WC Document 59 Filed 04/11/18 Page 6 of 28 On March 2, 2017, Defendant Smith filed a motion to dismiss arguing (1) that Plaintiff lacks standing to sue in her individual capacity for injuries personal to her; (2) that Alabama’s survivorship statute, Ala. Code 1975 § 6-5-462, bars survivorship of claims for damages (such as Mr. Gunn’s pain and suffering) that arose prior to his death; (3) that state law immunity bars Plaintiff’s state law negligence claim against Defendant Smith; and (4) that Plaintiff failed to allege facts sufficient to support her § 1983 claim for racial profiling in violation of the Equal Protection Clause of the Fourteenth Amendment. (Doc. # 42 at 3-11.) On January 24, 2018, the Magistrate Judge filed a Recommendation that Defendant Smith’s motion be granted in part as to claims for damages Plaintiff alleges are personal to her, and that, in all other respects, the Defendant Smith’s motion be denied. (Doc. # 55.) Plaintiff objects to the recommendation of dismissal of claims brought in her individual capacity, arguing that this court’s March 24, 2017 Order, on which the Magistrate Judge relied in his January 24, 2018 Recommendation, was incorrect. (Doc. # 58.) Defendant Smith objects to the denial of the remainder of his motion (Doc. # 57), and Defendants Finley and City of Montgomery join his objections (Doc. # 56). IV. DISCUSSION A.
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