Opinion
Case No. 2:11cv586-WHA (wo).
August 23, 2011
MEMORANDUM OPINION AND ORDER
I. BACKGROUND AND PROCEDURAL HISTORY
This cause is before the court on a Motion to Dismiss (Doc. #5), filed by Defendant Lowndes County. The Plaintiff, Al Kenneth Scott, filed a Complaint bringing claims against Lowndes County, former Sheriff Charlie Williams, former Investigator Derrick Maull, and former Chief Deputy Lenny Lee, as well as an unnamed insurer of Lowndes County.
The facts of the case arise out a sale of a truck to a third-party, and the Defendants' failure to return the truck to the Plaintiff. The federal claims asserted are brought pursuant to 42 U.S.C. § 1983, and include failure to enforce the law, unreasonable seizure, violation of due process, and failure to intervene. The state law claims are for conversion and trespass to chattels.
Defendant Lowndes County has moved to dismiss the claims against it on the ground that Lowndes County is not a proper party because it cannot be held vicariously liable for the acts of the sheriff, deputies, or investigator.
For reasons to be discussed, the Motion to Dismiss is due to be DENIED.
II. MOTION TO DISMISS
The court accepts the plaintiff's factual allegations as true, Hishon v. King Spalding, 467 U.S. 69, 73 (1984), and construes the complaint in the plaintiff's favor, Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). In analyzing the sufficiency of pleading, the court is guided by a two-prong approach: one, the court is not bound to accept conclusory statements of the elements of a cause of action and, two, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to entitlement to relief. See Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949-50 (2009). "[A] plaintiff's obligation to provide the `grounds' of his `entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Id. (citation omitted). To survive a motion to dismiss, a complaint need not contain "detailed factual allegations," but instead the complaint must contain "only enough facts to state a claim to relief that is plausible on its face." Id. at 570. The factual allegations "must be enough to raise a right to relief above the speculative level." Id. at 555.
III. DISCUSSION
Under Alabama law, sheriffs are state, and not county, officers. See, e.g., Parker v. Amerson, 519 So.2d 442, 442 (Ala. 1987). "Alabama sheriffs, when executing their law enforcement duties, represent the State of Alabama, not their counties." McMillian v. Monroe County, 520 U.S. 781, 793 (1997). Because deputy sheriffs are alter egos of sheriffs, they, like sheriffs, have sovereign immunity, such that a county cannot be vicariously liable for their actions. Hereford v. Jefferson County, 586 So.2d 209, 210 (Ala. 1991).
While Lowndes County asserts the state officer status of sheriffs and sheriff deputies as a basis for its dismissal in this case, Lowndes County cites no authority for the proposition that it cannot be held liable for actions taken by an investigator. In addressing the question of whether immunity applies to jailers, the Supreme Court of Alabama noted as follows:
as the Court of Appeals for the Eleventh Circuit explained in Terry v. Cook, 866 F.2d 373, 378 (11th Cir. 1989), the positions appointed by a sheriff of clerk, investigator, dispatcher, jailer, and process server `traditionally revolve around limited objectives and defined duties and do not require those holding them to function as the alter ego of the sheriff. . . .'Ex parte Shelley, 53 So. 2d 887, 896 (Ala. 2009). The Supreme Court of Alabama concluded that the jailer in Ex parte Shelley was not an alter ego of the sheriff. Id. The court further stated that it declined to extend state law immunity beyond sheriffs and deputy sheriffs. Id.
In this case, one of the defendants in the case has been identified in the Complaint as an investigator, rather than as a deputy sheriff. At this stage in the case, therefore, because the only basis for dismissal is that the County has been sued for the actions of a sheriff, deputy, and investigator, but an investigator has not been held as a matter of law to be a state official, the Motion to Dismiss is due to be DENIED. The County may again raise the issue of the investigator's classification as a state official after factual development in the case, should the County choose to do so.
IV. CONCLUSION
For the reasons discussed, the Motion to Dismiss Lowndes County is due to be and is hereby ORDERED DENIED.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 69 S.Ct. 1221 1225-26 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , , , (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).