Green v. McDonald et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
JOY KELLY GREEN,
On behalf of J.M.G., )
Plaintiff, )
)
v. ) CIVIL ACTION NO. 2:24-00321-KD-N
)
MARVIN MCDONALD, et al., )
Defendants. )
REPORT AND RECOMMENDATION
Pending before the Court is the Motion to Dismiss (Doc. 28) filed by Sumter
County, Alabama, and Sumter County Sheriff Brian Harris (“Defendants”).1 Joy
Kelly Green, filing on behalf of a minor, J.M.G. (“Plaintiff”), names Defendants in one
count of a six-count complaint, “Excessive Force – Municipal Liability Pursuant to
Monell” under 42 U.S.C. § 1983. (Doc. 23, ¶¶ 71-103, PageID.96-102).2
Defendants argue Harris is afforded Eleventh Amendment immunity; all
claims for respondeat superior against Defendants must be dismissed; Plaintiff fails
to state a Monell claim; Sumter County is not subject to punitive damages; and all
fictitious parties are due to for dismissal. Having been fully briefed on the matter
(Docs. 29, 33, 34), the motion is ripe for disposition. Upon due consideration and for
1 The District Judge assigned to this case referred this motion to the undersigned
Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of
Civil Procedure 72 and S.D. Ala. GenLR 72(a); See S.D. Ala. GenLR 72(b) (11/06/2024
elec. ref.).
2 Green filed an amended complaint once as a matter of course on October 22, 2024.
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the reasons stated herein, the undersigned RECOMMENDS that Defendants’
motion be GRANTED in part and DENIED in part.
I. Factual Background
According to the complaint, Plaintiff, a 15-year-old runaway, was being
transported by deputies of the Sumter County Sheriff’s Office to a juvenile detention
facility in January 2023. While stopped at a gas station, an escape was attempted,
which eventually led to a Sumter County Sheriff’s Deputy allegedly shooting the
handcuffed Plaintiff.3 Plaintiff further alleges that he was denied immediate medical
care and suffered permanent injuries. (Doc. 23, ¶¶ 13-48, PageID.87-92).4
II. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
complaint for “failure to state a claim upon which relief can be granted.” To survive
a motion to dismiss, a complaint must contain “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“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 … [This standard] asks for more than a sheer possibility that a
defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
3 Deputy Marvin McDonald and other fictitious co-defendants are named in
separate counts and filed for dismissal separately. (See Doc 26).
4 Plaintiff’s allegations of facts presented here are accepted as true and construed in
the light most favorable to Plaintiff. Speaker v. United States HHS CDC &
Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010).
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That is, “[f]actual allegations must be enough to raise a right to relief above
the speculative level,” and must be a “‘plain statement” possessing “enough heft to
show that the pleader is entitled to relief.” Twombly, 550 U.S. at 555, 557.
“Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “In ruling on a 12(b)(6)
motion, the Court accepts the factual allegations in the complaint as true and
construes them in the light most favorable to the [non-movant].” Speaker v. United
States HHS CDC & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010) (citing Hill v.
White, 321 F.3d 1334, 1335 (11th Cir. 2003)).
Additionally, jurisdictional challenges are addressed under Federal Rule of
Civil Procedure 12(b)(1). Harris v. Bd. of Trustees Univ. of Alabama, 846 F. Supp. 2d
1223, 1229–30 (N.D. Ala. 2012) (citing Ramming v. United States, 281 F.3d 158, 161
(5th Cir. 2001)) (stating that where “a Rule 12(b)(1) motion is filed in conjunction with
other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional
attack before addressing any attack on the merits.”).
Sovereign immunity under the Eleventh Amendment is a constitutional
doctrine that implicates the Rule 12(b)(1) jurisdictional standard. See Davis v.
Alabama Dept. of Trans., 2017 WL 4391730, at *5 (M.D. Ala. Aug. 2, 2017) (citing
Thomas v. U.S. Postal Serv., 364 F. Appx. 600, 601 (11th Cir. 2010)). The Eleventh
Circuit has indicated that the Eleventh Amendment sovereign immunity analysis is
more appropriately conducted under Rule 12(b)(1) where the analysis does not involve
the merits of the case. See Thomas v. U.S. Postal Service, 364 F. Appx. 600, 601 (11th
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Cir. 2010) (“[A] dismissal on sovereign immunity grounds should be pursuant to Rule
12(b)(1) because no subject-matter jurisdiction exists.”) (citing Bennett v. United
States, 102 F.3d 486, 488 n. 1 (11th Cir. 1996)); see also Bennett, 102 F.3d at 488
(“Rule 12(b)(1) of the Federal Rules of Civil Procedure provides a vehicle for the
dismissal of actions for lack of subject matter jurisdiction.”). The Eleventh Circuit
cautions “that a district court should only rely on Rule 12(b)(1) if the facts necessary
to sustain jurisdiction do not implicate the merits of plaintiff's cause of action.”
Harris, 846 F. Supp. 2d at 1231 n.8 (citing Morrison v. Amway Corp., 323 F.3d 920,
925 (11th Cir. 2003)).
III. Discussion
A. Sheriff Harris:
Plaintiff names Sheriff Brian Harris in his official capacity in Count Three of the
complaint (along with Sumter County, Ala.), “Excessive Force – Municipal Liability
Pursuant to Monell,” 42 U.S.C. § 1983. (Doc. 23, PageID. 96).
State officials acting in official capacities are immune from suits brought under
Section 1983 under the Eleventh Amendment, which “protects a State from being
sued in federal court without the State's consent.” Manders v. Lee, 338 F.3d 1304,
1308 (11th Cir. 2003). “It is well established in this Circuit that Alabama sheriffs and
their deputies are state officials and are absolutely immune from suit as an officer of
the state under the Eleventh Amendment.” Melton v. Abston, 841 F.3d 1207, 1234
(11th Cir. 2016). The State of Alabama has not waived its Eleventh Amendment
immunity and Congress has not abrogated Eleventh Amendment immunity in
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Section 1983 cases. See Brown v. Fla. Dep't of Revenue Off. of Child Support Enf't.,
697 F. App'x 692, 693 (5th Cir. 2017) (citation omitted); Carr v. City of Florence, Ala.,
916 F.2d 1521, 1525 (11th Cir. 1990) (quoting Article 1, Section 14 of the Alabama
Constitution of 1901, “the State of Alabama shall never be made a defendant in any
court of law or equity”).
Plaintiff argues under Ex parte Young, the official capacity claims against Harris
are not barred, as they seek injunctive and declaratory relief. (Doc. 33 PageID.196)
(citing 209 U.S. 123 (1908)). The Eleventh Amendment doesn’t bar suit when the
purpose is preventing “officers of a State from enforcing an unconstitutional
enactment[.]” 209 U.S. at 159-60. But such relief requires a plaintiff to show “a real
and immediate—as opposed to a merely conjectural or hypothetical—threat of future
injury” and “a reasonable expectation that the injury they have suffered will continue
or will be repeated in the future.” Ray v. Judicial Corr. Servs., Inc., 270 F. Supp. 3d
1262, 1298 (N.D. Ala. 2017) (citations omitted). The Eleventh Circuit has held “[the
Ex parte Young] doctrine provides an exception to Eleventh Amendment immunity
for lawsuits against state officials as long as the plaintiffs seek only prospective
injunctive relief to stop ongoing violations of federal law.” Friends of the Everglades
v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1215 (11th Cir. 2009) (citing Fla. Ass'n
of Rehab. Facilities, Inc. v. Fla. Dep't of Health & Rehab. Servs., 225 F.3d 1208, 1219
(11th Cir. 2000)); see also Summit Med. Assocs., P.C. v. Pryor, 180 F.3d 1326, 1337
(11th Cir. 1999) (“[T]he Eleventh Amendment bars suits against state officials in
federal court seeking retrospective or compensatory relief, but does not generally
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prohibit suits seeking only prospective injunctive or declaratory relief.”) (citation
omitted).
The Amended Complaint (Doc. 23) presents paragraphs ¶¶ 71-103 (some
duplicative) in support of Count Three, arguing Harris’s inaction—through lack of
training and corrective oversight—caused, endorsed, or made custom, the alleged
constitutional violations. The count culminates in the final paragraph, which states
“Plaintiff is entitled to recover damages for Defendants Sumter County and Sheriff’
Harris’ unconstitutional acts and omissions, including costs and attorney fees.” (Doc.
102, ¶ 103, PageID.102). Later, in the prayer for relief, Plaintiff seeks “[a]n order
granting Plaintiff injunctive and declaratory relief against Defendants, whereby
Defendants are temporarily and permanently enjoined and restrained from any
further contact with the Plaintiff[.]” (Id., ¶ iv, PageID.107) (emphasis added).
Defendants, as used in the latter, is assumed to include Harris, but the allegations
do not support the requested relief. No allegations are made that articulate
prospective injury or how Harris poses a threat of imminent harm. The undersigned
finds the claims under Ex parte Young unsupported. See Ray, 270 F. Supp. at 1298.
The remaining claims for damages against Harris are barred by the Eleventh
Amendment. See Melton, 841 F.3d at 1234. For these reasons, the undersigned
recommends Harris be dismissed from Count Three in his official capacity.
B. Sumter County
Unlike sheriffs, political subdivisions of the state have no Eleventh
Amendment protection from suit in federal court. Moor v. County of Alameda, 411
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U.S. 693, 717-21 (1973). In Monell, the Supreme Court held that municipalities and
other local governments may be held directly liable under § 1983 for constitutional
violations if the injury stems from the government's enforcement of a policy or
custom. See Monell v. New York Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658,
694 (1978). To state a Monell claim, a plaintiff must allege facts showing: “(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 violation.” Johnson v. City of Atlanta, 107 F.4th 1292,
1295 (11th Cir. 2024) (citing McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.
2004)). Official municipal policy includes the decisions of a government's lawmakers,
the acts of its policymaking officials, and practices so persistent and widespread as to
practically have the force of law. Connick v. Thompson, 563 U.S. 51, 60–61 (2011)
(citations omitted).
Critically, to rely on a pattern of complaints of unconstitutional conduct to
show a custom, the complaints must have merit. See Brooks v. Scheib, 813 F.2d 1191,
1193 (11th Cir. 1987). The complaints must also concern “factual situations that are
substantially similar to the case at hand.” See Buckler v. Israel, 680 F. App'x 831, 836
n.3 (11th Cir. 2017) (citation omitted). Plaintiff fails to make the necessary
allegations.5 See Iqbal, 556 U.S. at 678 (Rule 8 generally does not require detailed
5 Plaintiff provides “Upon information and belief, prior to the shooting of Mr.
J.M.G., Defendant McDonald had been involved in multiple incidents of misconduct
that included the use of excessive force and other constitutional violations.” (Doc.
23, ¶ 40, PageID.91)
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factual allegations, however, “it demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.”) (citation omitted).
Furthermore, as Defendants note, Plaintiff fails to establish that the Sheriff is
a “policymaker” for Sumter County, or vice versa; the Sheriff’s Department is a state
entity. (Doc. 34, PageID.212). The Supreme Court’s opinion in McMillian v. Monroe
County, Ala., explains:
[S]heriffs are given complete authority to enforce the state criminal law
in their counties. In contrast, the “powers and duties” of the counties
themselves—creatures of the State who have only the powers granted to
them by the State—do not include any provision in the area of law
enforcement. Thus, the “governing body” of the counties—which in every
Alabama county is the county commission—cannot instruct the sheriff
how to ferret out crime, how to arrest a criminal, or how to secure
evidence of a crime. … [T]he county commission thus has no direct
control over how the sheriff fulfills his law enforcement duty[.]
520 U.S. 781, 790–91 (1997) (citations omitted).
In sum, under Monell, a “county is liable under section 1983 only for acts for
which the county is actually responsible.” Grech v. Clayton Cnty., 335 F.3d 1326, 1329
(11th Cir. 2003). Here, Sumter County has no control over the law enforcement
practices of the Sheriff’s Department. Thus, the claims against it should be dismissed.
See McMillian, 520 U.S. at 791.
C. Fictitious Defendants
Defendants move for dismissal of all fictitious co-defendants. (Doc. 28, ¶ 5,
PageID. 120). Count Three—the only count of the six-count complaint addressed
here—does not incorporate any of the fictitious defendants, and this issue is analyzed
in the accompanying Report and Recommendation on Deputy Marvin McDonald’s
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Motion to Dismiss. For purposes of totality and consistent with the accompanying
Report and Recommendation, the undersigned recommends dismissing John Does II-
L while allowing the singular Deputy Doe I to remain at this stage of the proceedings.
(See Doc. 23, ¶¶ 10-11, PageID.86). Generally, “fictitious-party pleading is not
permitted in federal court.” Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010)
(citations omitted). However, a limited exception applies when “the plaintiff's
description of the defendant is so specific” as to make the name, “at the very worst,
surplusage.” Id. (citations omitted).
IV. Conclusion
In accordance with the foregoing analysis, it is RECOMMENDED that
Defendants’ Motion to Dismiss (Doc. 28) be:
• GRANTED under Rule 12(b)(1) as to Count 3 against Harris and dismissed
without prejudice;
• GRANTED under 12(b)(6) as to Count 3 against Sumter County and
dismissed with prejudice;
• GRANTED under 12(b)(6) as to all fictitious defendants—except Deputy Doe
I—and dismissed without prejudice to timely join them once they are
identified, otherwise DENIED.
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NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the
manner provided by law. Any party who objects to this recommendation or anything
in it must, within fourteen (14) days of the date of service of this document, file
specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b); S.D. Ala. GenLR 72(c). The parties should note that under Eleventh
Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or
recommendations contained in a report and recommendation in accordance with the
provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district
court's order based on unobjected-to factual and legal conclusions if the party was
informed of the time period for objecting and the consequences on appeal for failing
to object. In the absence of a proper objection, however, the court may review on
appeal for plain error if necessary in the interests of justice.” 11th Cir. R. 3-1. In
order to be specific, an objection must identify the specific finding or recommendation
to which objection is made, state the basis for the objection, and specify the place in
the Magistrate Judge’s report and recommendation where the disputed
determination is found. An objection that merely incorporates by reference or refers
to the briefing before the Magistrate Judge is not specific.
DONE and ORDERED this the 6th Day of March 2025.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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