Case 5:21-cv-01432-LCB Document 84 Filed 02/17/23 Page 1 of 19 FILED

2023 Feb-17 AM 11:59

U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
CHERELLE FLETCHER, et al., )
)
Plaintiffs, )
)
v. ) Case No.: 5:21-cv-1432-LCB
)
CITY OF MADISON, et al., )
)
Defendants. )

OPINION & ORDER

On October 27, 2019, in the parking lot of a shopping center in Madison,

Alabama, the Fletcher family had an altercation with police officers that, tragically,

ended with the death of the father, Dana Fletcher. Fletcher’s wife, Cherelle, and his

minor daughter, V.F., have brought this action against the City of Madison; the

mayor of Madison, Paul Finley; the former chief of the Madison Police Department,

David Jernigan; seven Madison City Councilmembers;1 and five police officers.2

(Doc. 58 at 1−7.)

Defendants’ Motions to Dismiss (Docs. 60 and 62) and Plaintiffs’ Motion for

Leave to File a Third Amended Complaint (Doc. 65) are now before the Court. After

Plaintiffs filed their initial Complaint (Doc. 1), Defendants filed Motions to Dismiss

1
These individuals are Maura Wroblewski, Steve Smith, Teddy Powell, Greg Shaw, Tommy
Overcash, Gerald Clark, and John Seifert (collectively, “the Councilmembers”).
2
Plaintiffs identify the police officers as John Doe 1, John Doe 2, John Doe 3, John Doe 4, and
Jane Doe 5.
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(Docs. 11 and 13), arguing, among other things, that Plaintiffs had filed a shotgun

pleading. Plaintiffs then filed their First Amended Complaint (Doc. 19), before the

Court ruled on Defendants’ Motions. The Court then dismissed Plaintiffs’ First

Amended Complaint as a shotgun pleading and instructed Plaintiffs to ensure their

Second Amended Complaint satisfied the pleading standards of the Federal Rules of

Civil Procedure. For the reasons below, the Court finds that Plaintiffs failed to do so

and that it would be futile to allow them to file a Third Amended Complaint. The

Court thus GRANTS Defendants’ Motions to Dismiss (Docs. 60 and 62), DENIES

Plaintiffs’ Motion (Doc. 65), and DISMISSES Plaintiffs’ Second Amended

Complaint (Doc. 58).

I. BACKGROUND

The Court pulls the following facts from Plaintiffs’ Second Amended

Complaint. (Doc. 58.) At this stage in the litigation, the district court must accept a

complaint’s factual assertions as true and construe those assertions in the light most

favorable to the plaintiff. Dusek v. JPMorgan Chase & Co., 832 F.3d 1243, 1246

(11th Cir. 2016).

Plaintiffs’ Second Amended Complaint alleges it was late afternoon on

October 27, 2019, when Cherelle Fletcher was working out at the Planet Fitness

located at 8050 Hwy 72 W, Madison, Alabama 35738. (Doc. 58 at 7.) Her vehicle

was parked in the lot, and her husband, Dana Fletcher, was sitting in the passenger

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seat, and their eight-year-old daughter, V.F., was seated behind him. (Doc. 58 at 7.)

Fletcher and V.F. were waiting on Cherelle, so Fletcher had his door open to allow

for air circulation. (Doc. 58 at 7.)

After Cherelle finished her workout, she walked across the parking lot and

climbed into the driver’s seat of the vehicle. (Doc. 58 at 8.) Shortly thereafter, a

Madison Police Department (“MPD”) patrol car pulled up. (Doc. 58 at 8.) At the

time, the Fletcher family was still just sitting in the vehicle. (Doc. 58 at 8.) A police

officer (“Officer 1”) exited the patrol car and approached the vehicle, walking to the

passenger side. (Doc. 58 at 8.) It was approximately 4:43 P.M. (Doc. 58 at 9.)

Fletcher ignored Officer 1’s presence. (Doc. 58 at 9.) Cherelle asked Officer 1 to

come talk to her, but he refused to do so. (Doc. 58 at 9.) Officer 1 appeared to be

angry, and around 4:44 P.M., he grabbed Fletcher’s arm. (Doc. 58 at 10.) Officer 1

then radioed for backup. (Doc. 58 at 10.) At that time, after telling Officer 1 that he

had done nothing wrong, Fletcher tried to ask Officer 1 why Officer 1 was there.

(Doc. 58 at 10.) Officer 1 did not supply an explanation, and he then drew his firearm

and aimed it at Fletcher’s head. (Doc. 58 at 10.) V.F. saw this and began screaming

hysterically. (Doc. 58 at 10.)

According to Plaintiffs’ Second Amended Complaint, at approximately 4:47

P.M., a second police officer arrived on the scene (“Officer 2”). (Doc. 58 at 11.) He

approached the vehicle with his firearm drawn. (Doc. 58 at 11.) Cherelle became

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frightened, so she locked her door. (Doc. 58 at 11.) Officer 2 aimed his firearm at

Cherelle’s head, yelling at her to open the door. (Doc. 58 at 11.) Officer 1 yelled at

Cherelle to keep her hands up and visible to him. (Doc. 58 at 11.)

A minute later, three more police officers showed up (“Officer 3,” “Officer

4,” and “Officer 5”). (Doc. 58 at 11.) Officer 3 brought a K-9 Officer. (Doc. 58 at

11.) Though no Officer gave a reason for his/her presence, the Officers began

ordering Fletcher out of the vehicle. (Doc. 58 at 12.) Officer 3 commanded the K-9

Officer to attack Fletcher while he was still seated in the vehicle. (Doc. 58 at 12.)

The K-9 Officer began mauling and biting Fletcher, who tried to restrain and hold

off the dog. (Doc. 58 at 12.) Officer 3 then pulled back the K-9 Officer and began

personally beating Fletcher. (Doc. 58 at 12.) Simultaneously, Officer 2 smashed the

driver side window, unlocked the door, and yanked Cherelle and V.F. out of the

vehicle and onto the pavement with the broken glass, injuring them in the process.

(Doc. 58 at 12.)

Plaintiffs allege that Officer 1 then moved to the driver side and used a Taser

on Fletcher, incapacitating him. (Doc. 58 at 12.) As Fletcher fell to the ground,

Officer 3 discharged his firearm. (Doc. 58 at 13.) One or more bullets hit Fletcher.

(Doc. 58 at 13.) Fletcher moaned and clutched himself with his right arm. (Doc. 58

at 13.) Officer 4 then aimed his firearm at Fletcher and discharged it. (Doc. 58 at

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13.) Following the shots, none of the Officers rendered aid to Fletcher, and he died

on the scene. (Doc. 58 at 13−14.)

The Officers then seized Cherelle’s vehicle and took her cell phone. (Doc. 58

at 14.) They also threatened to take Cherelle to an undisclosed location. (Doc. 58 at

14.)

On October 26, 2021, Plaintiffs filed their Complaint in this Court. (Doc. 1.)

On November 23, 2021, Defendants filed Motions to Dismiss, arguing, in part, that

Plaintiffs’ Complaint was a shotgun pleading. (Docs. 11 and 13). On December 14,

2021, Plaintiffs filed their First Amended Complaint. (Doc. 19.) On April 14, 2022,

the Court granted Plaintiffs leave to file a Second Amended Complaint, informing

them that they needed to correct their shotgun pleading deficiencies. (Doc. 57.) On

April 29, 2022, Plaintiffs filed their Second Amended Complaint. (Doc. 58.) The

Second Amended Complaint is fifty-three pages long, and Plaintiffs bring twenty-

four counts:

Count 1. Declaratory Judgment that Defendants’ Invocation of the

Eleventh Circuit’s Formulation of Qualified Immunity is
Unconstitutional as Applied to this Case;
Count 2. Plaintiff Estate brings a 42 U.S.C. § 1983 claim of unlawful
seizure at 4:44 P.M. against Officer 1;
Count 3. Plaintiffs Cherelle and V.F. bring a 42 U.S.C. § 1983 claim of
unlawful seizure at 4:44 P.M. against Officer 1;
Count 4. Plaintiff Estate brings a 42 U.S.C. § 1983 claim of unlawful
seizure at 4:44-4:47 P.M. against Officer 1;
Count 5. Plaintiff Estate brings a 42 U.S.C. § 1983 claim of unlawful
seizure at 4:44-4:47 P.M. against Officer 1;

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Count 6. Plaintiffs Cherelle and V.F. bring a 42 U.S.C. § 1983 claim of

unlawful seizure at 4:44-4:47 P.M. against Officer 1;
Count 7. Plaintiffs Cherelle and V.F. bring a 42 U.S.C. § 1983 claim of
unlawful seizure at 4:47 P.M. against Officers 1 and 2;
Count 8. Plaintiff Estate brings a 42 U.S.C. § 1983 claim of unlawful
seizure against Officers 1 and 3;
Count 9. Plaintiff Estate brings a 42 U.S.C. § 1983 claim of unlawful
seizure at 4:49 P.M. against Officer 1;
Count 10. Plaintiff Estate brings a 42 U.S.C. § 1983 claim of unlawful
seizure against Officers 1 and 4;
Count 11. Plaintiff Estate brings a 42 U.S.C. § 1983 claim of excessive
force against Officers 1, 3, and 4;
Count 12. Plaintiffs Cherelle and V.F. bring a 42 U.S.C. § 1983 claim of
excessive force against Officer 2;
Count 13. Plaintiff Estate brings a 42 U.S.C. § 1983 claim of failure to
protect against Officers 2, 3, 4, and 5;
Count 14. Plaintiff Estate brings a 42 U.S.C. § 1983 claim of failure to
protect against Officers 1, 2, 4, and 5;
Count 15. Plaintiff Estate brings a 42 U.S.C. § 1983 claim of failure to
protect against Officers 1, 2, 4, and 5;
Count 16. Plaintiffs Cherelle and V.F. bring a 42 U.S.C. § 1983 claim of
unlawful detention and false imprisonment against Officers 1, 2,
3, 4, and 5;
Count 17. Plaintiff Estate brings an Alabama wrongful death claim against
Officers 1, 3, and 4;
Count 18. All Plaintiffs bring a 42 U.S.C. § 1983 municipal liability claim
against City of Madison;
Count 19. All Plaintiffs bring an Alabama outrage/intentional infliction of
emotional distress claim against Officers 1, 2, 3, 4, and 5;
Count 20. Plaintiff Estate brings an Alabama assault and battery claim
against Officers 1, 3, and 4;
Count 21. Plaintiffs Cherelle and V.F. bring Alabama assault and battery
claims against Officers 1 and 2;
Count 22. Plaintiffs Cherelle and V.F. bring Alabama false arrest/false
imprisonment claims against Officers 1, 2, 3, 4, and 5;
Count 23. All Plaintiffs bring an Alabama municipal liability claim against
the City of Madison; and
Count 24. All Plaintiffs bring a claim under 42 U.S.C. § 1988 for
attorney’s fees.

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(Doc. 58 at 25−52.)3 Defendants City of Madison, Finley, Jernigan, and the

Councilmembers filed Motions to Dismiss, reraising the argument that Plaintiffs

filed a shotgun pleading. (Doc. 60 and Doc. 62). Following those Motions, Plaintiffs

filed a Motion for Leave to File a Third Amended Complaint (Doc. 65).

II. LEGAL STANDARDS

Rule 8 of the Federal Rules of Civil Procedure establishes the general standard

for pleading civil claims in federal court. E.g., Randall v. Scott, 610 F.3d 701, 708

(11th Cir. 2010). The Rule requires that a complaint contains “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). Rule 8 does not demand “detailed factual allegations,” but it does require

something beyond “labels and conclusions” or “formulaic recitation of the elements

of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rule

10(b) further requires that a plaintiff “state its claims . . . in numbered paragraphs,

each limited as far as practicable to a single set of circumstances.” Fed. R. Civ. P.

10(b). “If doing so would promote clarity, each claim founded on a separate

transaction or occurrence . . . must be stated in a separate count.” Id.

Rule 12(b)(6) provides that a party may move to dismiss a complaint that fails

“to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To

survive a motion to dismiss, a complaint must contain sufficient facts, accepted as

3
Plaintiffs do not bring any claims against Defendants Finley, Jernigan, or the Councilmembers.
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true, to assert a facially plausible claim for relief. Chaparro v. Carnival Corp.,

693 F.3d 1333, 1337 (11th Cir. 2012) (per curiam). A claim is facially plausible

when it raises “‘a reasonable expectation that discovery will reveal evidence of the

defendant’s liability.” Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265 (11th Cir.

2013) (quoting Twombly, 550 U.S. at 556). Allegations “merely consistent” with a

defendant’s liability are insufficient to push “claims across the line from conceivable

to plausible.” Twombly, 550 U.S. at 557, 570. When reviewing a motion to dismiss,

the district court accepts a complaint’s factual assertions as true and construes those

assertions in the light most favorable to the pleader. Dusek v. JPMorgan Chase &

Co., 832 F.3d 1243, 1246 (11th Cir. 2016).

III. DISCUSSION

A. Shotgun Pleading

“Complaints that violate either Rule 8(a)(2) or Rule 10(b), or both, are often

disparagingly referred to as ‘shotgun pleadings.’” Weiland v. Palm Beach Cnty.

Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015). The Eleventh Circuit in Weiland

stated:

The purpose of these rules is self-evident, to require the pleader to present his
claims discretely and succinctly, so that his adversary can discern what he is
claiming and frame a responsive pleading, the court can determine which facts
support which claims and whether the plaintiff has stated any claims upon
which relief can be granted, and at trial, the court can determine that evidence
which is relevant and that which is not.

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Id. (internal citation omitted). “Courts in the Eleventh Circuit have little tolerance

for shotgun pleadings,” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th

Cir. 2018), and district courts may dismiss complaints with prejudice on shotgun

pleading grounds, provided that the plaintiff has had at least one opportunity to

“remedy such deficiencies.” Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1358

(11th Cir. 2018) (citation omitted).

In Weiland, the Eleventh Circuit identified four categories wherein shotgun

pleadings generally fall: (1) where the complaint contains “multiple counts where

each count adopts the allegations of all preceding counts”; (2) where the complaint

is “replete with conclusory, vague, and immaterial facts not obviously connected to

any particular cause of action”; (3) where the complaint fails to separate each cause

of action or claim for relief into a separate count; and (4) where the complaint asserts

multiple claims against multiple defendants “without specifying which of the

defendants are responsible for which acts or omissions.” 792 F.3d at 1322−23. “The

unifying characteristic of all types of shotgun pleadings is that they fail to one degree

or another, and in one way or another, to give the defendants adequate notice of the

claims against them and the grounds upon which each claim rests.” Id. at 1323.

Here, Plaintiffs’ Second Amended Complaint violates Rules 8(a)(2) and

10(b). While Plaintiffs adequately describe the interactions that allegedly occurred

between the Fletcher family and the MPD Officers, they interweave their factual

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allegations with irrelevant information and conclusory statements, and they fail to

properly connect their factual allegations to their claims against Defendants.

Moreover, the Complaint does not sufficiently separate Plaintiffs’ claims into

different counts, and it thus lacks short, plain statements showing that Plaintiffs are

entitled to relief. Specifically, the Plaintiffs’ Second Amended Complaint falls into

the last three Weiland categories for shotgun pleadings.

1. Second Weiland Category

The facts section in the Second Amended Complaint is rife with conclusory

allegations that are mixed haphazardly with facts which, at a minimum, makes it

difficult for the Court to determine what facts support what claims for relief and

whether Plaintiffs have stated claims upon which relief can be granted. For instance,

in Paragraph 44, Plaintiffs write that the MPD, the Madison County Sheriff’s

Department (“MCSO”), and the Huntsville Police Department (“HPD”) have a

“reputation for working together, for harassing people, and for being overly

aggressive” without citing any factual bases to support such conclusions. (Doc. 58

at 9.) Of note, the City of Huntsville and the MCSO are non-parties. And yet,

Plaintiffs incorporate Paragraph 44 in Counts 4, 5, 6, 9, 19, 20, and 24 while failing

to properly connect the statements in the Paragraph to each claim. As a result, those

seven counts include information immaterial to the underlying causes of action. In

Count 4, for example, Plaintiff Estate brings a 42 U.S.C. § 1983 claim of unlawful

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seizure from 4:44 to 4:47 P.M. against Officer 1. Count 4 incorporates the factual

allegations related to Officer 1 arriving at Cherelle’s vehicle, approaching Fletcher,

and eventually grabbing his arm. (Doc. 58 at 7−10.) But Plaintiffs fail to explain

how the extraneous references to the HPD and the MCSO connect to the unlawful

seizure claim against Officer 1 for his actions during that three-minute period.

Similarly, Paragraph 48 alleges that Officer 1 radioed for backup “to increase

the intimidation factor caused by a larger police presence and to apply even more

violent and depraved means to coerce the Fletchers’ compliance and cooperation.”

(Doc. 58 at 10.) Beyond the act of calling for backup itself, Plaintiffs do not make

any factual allegations that support the conclusion that Officer 1’s purpose for

radioing for backup was to “increase the intimidation factor” and “apply even more

violent and depraved means.” Plaintiffs incorporate Paragraph 48 in Counts 7, 8, 10,

13, 14, 15, 16, 17, 19, 20, 21, 22, and 24, while, again, failing to properly connect

the Paragraph’s allegations to each claim.

For instance, in Count 7, Plaintiffs Cherelle and V.F. bring a § 1983 claim of

unlawful seizure at 4:47 PM against Officers 1 and 2. The factual allegations

incorporated into Count 7 describe Officer 2 arriving on the scene, Cherelle locking

her door, and Officer 2 pointing his firearm at Cherelle and yelling at her to open the

door. (Doc. 58 at 11.) Plaintiffs state that Officer 2’s “misconduct was carried out at

the instigation” of Officer 1. (Doc. 58 at 32.) In other words, Plaintiffs try to frame

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their “conclusion” regarding Officer 1’s reasons behind calling for backup as the

cause of Officer 2’s actions at the scene, which is, at best, confusing, and, at worst,

misleading for Defendants. As an aside, none of the factual allegations incorporated

in Count 7 describe any interaction between Officer 2 and V.F. On the whole, the

problems with Count 7 make it difficult, if not impossible, for Defendants to discern

what Plaintiffs are claiming and frame a responsive pleading.

Lastly, Plaintiffs devote a chunk of their Second Amended Complaint to what

appears to be commentary on the qualified immunity doctrine and altercations

between citizens and law enforcement in the general area surrounding Madison,

Alabama. Paragraphs 80 to 92 in the facts section further discuss the unrelated

entities of the HPD and the MCSO. (Doc. 58 at 15−16.) Plaintiffs attempt to group

the MPD, MCSO, and HPD by coining them “the Sister Agencies,” claiming that

there are personnel, such as Defendant Jernigan, who have worked at more than one

entity (albeit, not at the same time) and that the entities train at the same facilities

and have the same training curricula. (Doc. 58 at 15). Regardless of whether all that

is true, Plaintiffs do not allege that the MPD, HPD, and MCSO operate

interdependently or share leadership. As such, it is vague and potentially deceptive

for Plaintiffs to state that the three entities “consider themselves one body in many

respects.” (Doc. 58 at 16.) Plaintiffs go on to describe alleged uses of excessive force

by HPD officers while failing to link their significance to alleged constitutional

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violations by MPD officers. (Doc. 58 15−16.) But Plaintiffs incorporate these

paragraphs into their claims against the City of Madison: Count 18 is a § 1983

municipality claim, and Count 23 is state law municipality claim. (Doc. 58 at 43,

50.) And the issues with Counts 18 and 23 do not end there: the paragraphs

incorporated in those Counts do not include any factual allegations of the altercation

between the Fletcher family and the MPD Officers. As such, the Court cannot

determine which facts support Plaintiffs’ claims that Defendant City of Madison is

liable.

2. Third Weiland Category

Many of Plaintiffs’ counts present more than one discrete claim for relief. In

Count 5, for example, Plaintiff Estate brings a § 1983 unlawful seizure claim against

Officer 1, claiming that Fletcher’s First and Fourth Amendment rights were violated.

(Doc. 58 at 31.) Plaintiffs repeat this error in several other counts. (Doc. 58 at

25−51.) In thirteen of the twenty-four counts, Plaintiffs bring a single claim against

multiple Defendant Officers. In Count 11, for example, Plaintiff Estate brings a §

1983 claim of excessive force against Officers 1, 3, and 4. Plaintiffs describe how

Officer 1 tased Fletcher, how Officer 3 punched Fletcher and released the K-9

Officer on Fletcher, and how Officer 4 used lethal force against Fletcher. (Doc. 58

at 36.) Those are three, separate theories upon which a plaintiff may recover for a

Fourth Amendment violation—not one.

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In Count 18, all Plaintiffs bring a § 1983 municipal liability claim against

Defendant City of Madison. To establish municipal liability under § 1983, a plaintiff

must prove two elements: (1) his constitutional rights were violated; and (2) the

municipality had a policy that caused the violation. McDowell v. Brown, 392 F.3d

1283, 1289 (11th Cir. 2004). The issue here is with the first element. Over a dozen

of Plaintiffs’ counts allege that someone’s constitutional rights were violated.

Plaintiffs thus appear to be bringing multiple theories of § 1983 liability against

Defendant City of Madison as a sort of omnibus liability claim. Moreover, Fletcher,

Cherelle, and V.F. did not share identical experiences on October 27, 2019, so they

cannot lump their claims together as the facts supporting a claim for relief would be

individual to each Plaintiff. Thus, because Count 18 brings more than one discrete

claim for relief, it is difficult for Defendant City of Madison to discern what

Plaintiffs are claiming.

3. Fourth Weiland Category

Plaintiffs assert multiple claims against multiple Defendants without

adequately specifying which Defendant is responsible for which act. In Count 19,

all Plaintiffs bring an outrage/intentional infliction of emotional distress claim under

Alabama tort law against Defendant Officers 1 thru 5. Plaintiffs state that the

Officers intended to “make Plaintiffs have great fear for their safety and life [sic].”

(Doc. 58 at 46.) Plaintiffs then list various actions: “pointing firearms at [Fletcher’s

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and Cherelle’s] heads; physically seizing and dragging [Cherelle] and V.F. out of

the vehicle . . . ; releasing an attack dog on [Fletcher] . . . ; Tasing [Fletcher];

punching and beating [Fletcher] and ultimately shooting [Fletcher] unnecessarily.”

(Doc. 58 at 46.) Rather than differentiate which Defendant Officer is responsible for

which act, Plaintiffs instead appear to be imputing the individual Officers’ actions

on the group, as a whole, which does not adequately give Defendants notice of the

claims against them.

B. Motion for Leave to File Third Amended Complaint

Plaintiffs have already failed to cure the deficiencies in their pleading.

Plaintiffs have twice amended their Complaint. In its previous Order granting

Plaintiffs leave to amend, the Court specifically told Plaintiffs that their First

Amended Complaint bared the hallmarks of a shotgun pleading as exemplified in at

least the third Weiland category. (Doc. 57 at 2.) The Court even ordered Plaintiffs to

confer with Defendants’ counsel in person before filing the Second Amended

Complaint. (Doc. 57 at 3.) Lastly, the Court warned Plaintiffs that they would not

have another chance to amend. (Doc. 57 at 2.)

Even if the Court were to grant Plaintiffs leave to amend, an amendment

would be futile. Plaintiffs attached their Proposed Third Amended Complaint (Doc.

65−1) to their Motion (Doc. 65). Not only do Plaintiffs fail to correct any of the

shotgun pleading deficiencies previously discussed, but also the only proposed

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change of substance to the pleading is Count 24, which adds a claim against

Defendants Finley, Jernigan, and the Councilmembers. (Doc. 65−1 at 52.) However,

the proposed change to Count 24 does not give Defendants notice of the claims

against them and the grounds upon which those claims rest as the Count fails to

reference a statute or law under which Plaintiffs are requesting relief. (Doc. 65−1 at

52.)

Based on the totality of circumstances, this Court finds that granting Plaintiffs

a third opportunity to amend their complaint would be futile.

C. Statutes of Limitations for Plaintiffs’ State Law Claims

If federal claims are dismissed before trial, “a district court should typically

dismiss the pendant state claims as well.” Vibe, 878 F.3d at 1296. When a district

court dismisses those state law claims, it should do so without prejudice as to refiling

in state court. Id. It is possible, however, for the court to maintain jurisdiction over

those state law claims. Id. When considering whether to maintain jurisdiction,

whether “a plaintiff’s state law claims will be time-barred if dismissed is certainly a

factor, if not a determinative factor” the court should consider. Pharo v. Smith, 625

F.2d 1226, 1227 (5th Cir. 1980) (per curium). However, if a plaintiff filed a defective

complaint after the statute of limitations had run on their state law claims, then the

plaintiff jeopardized their recovery on those claims, and the court is within its

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discretion to dismiss them with prejudice. See McMahan v. Cleveland Clinic Found.

Dept., 455 Fed. App’x 874, 877 n.1 (11th Cir. 2011).

In this case, Plaintiffs bring several causes of action under Alabama state law:

wrongful death; outrage/intentional infliction of emotional distress; assault and

battery; false arrest and false imprisonment; and municipal liability. (Doc. 58 at

45−50.) The statute of limitations for wrongful death is two years. ALA. CODE § 6-

5-410 (1975). An action to recover for outrage or intentional infliction of emotional

must be filed within two years. Cont’l Cas. Ins. Co. v. McDonald, 567 So.2d 1208,

1215 (Ala. 1990) (citing ALA. CODE § 6-2-38 (1975)). If an individual wants to bring

a claim for false arrest, false imprisonment, assault, or battery, then the action must

be commenced within six years. ALA. CODE § 6-2-34 (1975). Lastly, the statute of

limitations for municipal liability for damages growing out of torts is six months.

ALA. CODE § 11-4-23 (1975). The altercation between the Fletcher family and the

MPD Officers took place on October 27, 2019. (Doc. 58 at 4.) Plaintiffs filed this

action on October 26, 2021, within the statute of limitations.4 (Doc. 1.) Plaintiffs

filed their Second Amended Complaint on April 29, 2022, well past when the

statutes of limitations would have run for the claims for wrongful death,

outrage/intentional infliction of emotional distress, and municipal liability.

4
When Plaintiffs filed their Complaint (Doc. 1), their municipal liability claim under Alabama
law was technically time-barred.
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Plaintiffs’ Second Amended Complaint, as the Court previously found, is a shotgun

pleading. As such, the Plaintiffs jeopardized their chances for recovery for those

causes of action, and the Court will dismiss those claims with prejudice.

IV. CONCLUSION

Plaintiffs have repeatedly failed to present their claims discretely and

succinctly. Because Plaintiffs’ Second Amended Complaint is a shotgun pleading,

and because granting Plaintiffs a third opportunity to amend would be futile, the

Court GRANTS Defendants’ Motions to Dismiss (Docs. 60 and 62), DENIES

Plaintiffs’ Motion for Leave to File Third Amended Complaint (Doc. 65), and

DISMISSES Plaintiffs’ claims. The federal claims and those state law claims now

barred by statutes of limitations are dismissed with prejudice. The rest of the state

law claims are dismissed without prejudice as to refiling in state court. The Court

will enter a final judgment separately.

The Court also notes that just hours prior to the entry of this Order, Cherelle

Fletcher filed a letter with the Court, which appears to be a Motion to Dismiss this

matter. (Doc. 83.) However, because the document was not filed by Ms. Fletcher’s

attorney of record, and because it is unclear whether it was filed with her attorney’s

knowledge, the Court did not consider the letter/Motion in the above analysis.

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DONE and ORDERED February 17, 2023.

_________________________________
LILES C. BURKE
UNITED STATES DISTRICT JUDGE

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