Madison Dismissal From City of Madison

Case 5:21-cv-01432-HNJ Document 11 Filed 11/23/21 Page 1 of 5 FILED
2021 Nov-23 PM 06:40

U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
Cherelle Fletcher, Individually and )

as Personal Representative of the )
Estate of Dana Sherrod Fletcher, ) CASE NO. 5:21-cv-01432-HNJ
deceased, V.F., a minor, by and )
through her mother and next friend, )
Cherelle Fletcher, )
)
Plaintiffs, )
)
v. )
)
City of Madison, et al., )
)
Defendants. )
MOTION TO DISMISS
OF DEFENDANT CITY OF MADISON
Defendant City of Madison, Alabama (“City”) moves the Court to dismiss the
complaint in this case on the following grounds:
1. The complaint fails to state a claim upon which relief may be granted.
See Fed. R. Civ. P. 12(b)(6).
2. The City pleads insufficient process and insufficient service of process.
Fed. R. Civ. P. 12(b)(3)-(4).
3. The complaint is an impermissible shotgun pleading that violates basic
rules of pleading required by the Federal Rules of Civil Procedure. See Fed. R. Civ.
P. 8(a)(2), 8(d)(1), 10(b); Weiland v. Palm Beach Cnty. Sheriff’s Office, 792 F.3d
Case 5:21-cv-01432-HNJ Document 11 Filed 11/23/21 Page 2 of 5
1313, 1321-23 (11th Cir. 2015); Barmapov v. Amuial, 986 F.3d 1321, 1324 (11th
Cir. 2021); Burke v. Custom Marine Grp., 847 F. App’x 578, 581 (11th Cir. 2021);
Est. of Bass v. Regions Bank, Inc., 947 F.3d 1352, 1356 n.5 (11th Cir. 2020).
4. Through the application of Ala. Code § 6-5-462, any § 1983 claims that
did not result in Mr. Fletcher’s death (i.e., all claims except those based on the
shooting of Mr. Fletcher) do not survive his death. Estate of Gilliam ex rel. Waldroup
v. City of Prattville, 639 F.3d 1041, 1045 (11th Cir. 2011). Similarly, any tort claims
asserted on behalf of the Estate pursuant to state law also abate, as unfiled claims do
not survive the decedent’s death. Nationwide Mut. Ins. Co. v. Wood, 121 So. 3d 982,
984 (Ala. 2013); Bassie v. Obstetrics & Gynecology Assocs. of Northwest Ala.,
P.C., 828 So. 2d 280, 282 (Ala. 2002).
5. Plaintiffs’ conspiracy claims, whether asserted under federal or state
law, are barred by the intracorporate conspiracy doctrine. Grider v. City of Auburn,
618 F.3d 1240, 1261 (11th Cir. 2010); Jarvis v. TaylorChandler, LLC, No. 2:17-CV-
396-ALB, 2020 WL 4820713 (M.D. Ala. Aug. 19, 2020); M&F Bank v. First
American Title Ins. Co., 144 So. 3d 222, 234 (Ala. 2013).
6. The complaint fails to state any claims against the City based on federal
law upon which relief may be granted. Specifically, Plaintiffs fail to plausibly allege
a municipal custom or policy that constituted deliberate indifference to a
constitutional right and that was the “moving force” behind the constitutional
2
deprivation. Monell v. Department of Social Services, 436 U.S. 658 (1978).
Plaintiffs have not plausibly alleged that the City was on notice of a need to train its
officers through a pattern of previous, factually-similar incidents involving City
officers which would provide the City with notice of the need to train, nor was the
need to train in this limited circumstance obvious. Connick v. Thompson, 563 U.S.
51, 61 (2011); Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288, 1293 (11th
Cir. 2009); Gold v. City of Miami, 151 F.3d 1346, 1351 (11th Cir. 1998).
7. Since the City cannot be liable for any intentional torts of its employees
under Alabama law, Plaintiffs’ claims against the City based on the “willful” and
“intentional” conduct by its officers are due to be dismissed. Ex parte City of
Gadsden, 718 So. 2d 716, 721 (Ala. 1998); Garner v. City of Ozark, 587 F. App’x
515, 517 (11th Cir. 2014); Fowler v. Meeks, 569 F. App’x 705, 708 (11th Cir. 2014).
8. To the extent that Plaintiffs attempt to bring state-law claims for the
alleged failure to train City police officers, these particular claims are not actionable
against the City as a matter of law. Ala. Code § 11-47-190; Ott v. City of Mobile,
169 F. Supp. 2d 1301 (S.D. Ala. 2001); Robinson v. Brassell, No. 16-0376-WS-B,
2017 WL 2437265 at * 14 (S.D. Ala. June 5, 2017); Barr v. Jefferson County. Barber
Comm’n, 250 F. Supp. 3d 1245, 1258-59 (N.D. Ala. 2017).
9. Plaintiffs fail to state viable outrage claims under Alabama law. Potts
v. Hayes, 771 So. 2d 462, 465 (Ala. 2000).
3
10. Plaintiffs lack standing to bring their requests for multiple declaratory
judgments. Their requests for declaratory relief either impermissibly seek a
declaration as to past events with no application to future rights or liabilities,
Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1346 (11th Cir. 1999),
or they are far too “conjectural, hypothetical, or contingent” to allege a case or
controversy susceptible to adjudication by this Court. A&M Gerber Chiropractic
LLC v. Geico Gen. Ins. Co., 925 F.3d 1205, 1210 (11th Cir. 2019). The Supreme
Court has also specifically foreclosed any possibility of prospective relief based
solely on past conduct of law enforcement officers without a substantial showing of
the likelihood future injury. City of Los Angeles v. Lyons, 461 U.S. 95 (1983).
s/ David J. Canupp
David J. Canupp
s/ Allison B. Chandler
Allison B. Chandler
LANIER FORD SHAVER & PAYNE, P.C.

P. O. Box 2087
2101 West Clinton Avenue, Suite 102 (35805)
Huntsville, AL 35804
Phone: 256-535-1100 / Fax: 256-533-9322
E-mail: [email protected] & [email protected]
Attorneys for Defendant City of Madison, Alabama
4
CERTIFICATE OF SERVICE
I certify that on this 23rd day of November, 2021 I have filed the foregoing
with the Clerk of the Court using the ECF System, which will send notification of
such filing to those parties of record who are registered for electronic filing, and
further certify that those parties of record who are not registered for electronic filing
have been served by mail by depositing a copy of the same in the United States mail,
first class postage prepaid and properly addressed to them as follows:
Shayla R Fletcher
SHAYLA FLETCHER, ESQ
3900 Montclair Road, #131401
Birmingham, AL 35213
256-662-6946
Email: [email protected]
s/ David J. Canupp
David J. Canupp

Madison Dismissal From City of Madison

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Case 5:21-cv-01432-HNJ Document 11 Filed 11/23/21 Page 1 of 5 FILED

2021 Nov-23 PM 06:40

IN THE UNITED STATES DISTRICT COURT

Cherelle Fletcher, Individually and )

complaint in this case on the following grounds:

See Fed. R. Civ. P. 12(b)(6).

2. The City pleads insufficient process and insufficient service of process.

Fed. R. Civ. P. 12(b)(3)-(4).

3. The complaint is an impermissible shotgun pleading that violates basic

P.C., 828 So. 2d 280, 282 (Ala. 2002).

5. Plaintiffs’ conspiracy claims, whether asserted under federal or state

a municipal custom or policy that constituted deliberate indifference to a

deprivation. Monell v. Department of Social Services, 436 U.S. 658 (1978).

officers through a pattern of previous, factually-similar incidents involving City

“intentional” conduct by its officers are due to be dismissed. Ex parte City of

Comm’n, 250 F. Supp. 3d 1245, 1258-59 (N.D. Ala. 2017).

v. Hayes, 771 So. 2d 462, 465 (Ala. 2000).

judgments. Their requests for declaratory relief either impermissibly seek a

declaration as to past events with no application to future rights or liabilities,

or they are far too “conjectural, hypothetical, or contingent” to allege a case or

controversy susceptible to adjudication by this Court. A&M Gerber Chiropractic

solely on past conduct of law enforcement officers without a substantial showing of

LANIER FORD SHAVER & PAYNE, P.C.

Attorneys for Defendant City of Madison, Alabama

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