Case: 17-14834 Date Filed: 09/27/2018 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14834
Non-Argument Calendar
________________________
D.C. Docket No. 1:16-cv-00546-B
ROSE McCANTS,
REGINA GREENE,
Plaintiffs - Appellants,
versus
CITY OF MOBILE,
CITY OF MOBILE POLICE DEPARTMENT,
CPL. STEVEN CHANDLER,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(September 27, 2018)
Before TJOFLAT, DUBINA, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Case: 17-14834 Date Filed: 09/27/2018 Page: 2 of 11
Plaintiffs/Appellants, Rose McCants (“McCants”) and Regina Greene
(“Greene”), appeal the magistrate judge’s order dismissing their complaint against
the City of Mobile (the “City”), the Mobile Police Department (the “MPD”), and
Police Officer Steven Chandler (“Officer Chandler”), in his individual capacity.
Their complaint contained eight separate claims for relief: two claims of excessive
force by Officer Chandler against McCants and Greene, in violation of the Fourth
and Fourteenth Amendments; two claims of violations of the equal protection
clause by Officer Chandler against each plaintiff; two claims of First Amendment
retaliation by Officer Chandler against each plaintiff; and two claims of deliberate
indifference against the City and the MPD by each plaintiff. The City, the MPD,
and Officer Chandler filed motions to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), and the plaintiffs filed a brief in opposition to the motions to
dismiss. All parties consented to the exercise of jurisdiction by a United States
Magistrate Judge. The magistrate judge entered an order dismissing the complaint
and later entered an amended order dismissing the complaint with prejudice.
Plaintiffs appeal from the amended order of dismissal. After reading the parties’
briefs and reviewing the record, we affirm the judgment of dismissal.
I. BACKGROUND
2
Case: 17-14834 Date Filed: 09/27/2018 Page: 3 of 11
In their complaint, plaintiffs allege that Greene was driving in Mobile,
Alabama, when her vehicle was struck from behind by James Manning
(“Manning”). Greene’s mother, McCants, was driving a separate vehicle, saw the
accident, and stopped to check on Greene. The first emergency responder to arrive
on the scene was Officer Chandler, a corporal with the MPD. According to the
plaintiffs, Officer Chandler “laughed and chatted” with Manning, the white male
driver, but “became very angry and screamed” at them, African-American women.
(R. Doc. 1 ¶¶ 12, 16–18.) Plaintiffs allege that Officer Chandler punched McCants
in the chest, and the force of the punch caused her to move off the median and into
the lane of oncoming traffic. (Id. at ¶ 18.) According to Greene, she begged
Officer Chandler not to hit her mother, but he ignored her and “screamed back at
her to calm down.” (Id. at ¶ 20.)
The complaint further alleges that Officer Chandler “resumed screaming” at
Greene and “forced her through intimidation to move from her seated position in
the car.” (Id. at ¶ 19.) According to Greene, she is disabled due to prior neck
injuries and was in “extreme pain” due to the accident, so being forced to move to
find her purse aggravated her injuries. (Id.) Paramedics later arrived on the scene
and transported Greene to the Mobile Infirmary, and, while at the Infirmary with
her daughter, McCants received treatment for the injuries she sustained from the
3
Case: 17-14834 Date Filed: 09/27/2018 Page: 4 of 11
punch by Officer Chandler. (Id. at ¶¶ 24–25.) The complaint also states that
Officer Chandler has a history of anger problems, and “because of his racism,” he
initially filed a false police report that indicated Greene was at fault in the accident
but later changed his report. (Id. at ¶ 22.) The plaintiffs state that they contacted
Internal Affairs to investigate the accident, but the request was dismissed.
II. DISCUSSION 1
“We review de novo a district court’s order granting a motion to dismiss for
failure to state a claim.” Boyle v. City of Pell City,
866 F.3d 1280, 1286 (11th Cir.
2017) (citation omitted). “To survive a Rule 12(b)(6) motion to dismiss, a
complaint must plead ‘enough facts to state a claim to relief that is plausible on its
face.’” Ray v. Spirit Airlines, Inc.,
836 F.3d 1340, 1347–48 (11th Cir. 2016)
(quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570,
127 S. Ct. 1955, 1974
(2007)). “A claim is facially plausible when the plaintiff pleads sufficient facts to
allow the court to draw the reasonable inference that the defendant is liable for the
alleged misconduct.”
Boyle, 866 F.3d at 1286 (citing
Ray, 836 F.3d at 1348). The
court accepts all allegations in the complaint as true and construes the facts in the
1
The plaintiffs do not challenge the court’s order dismissing their First Amendment
claims; therefore, we deem these claims abandoned and do not consider them. See T.P. ex. rel.
T.P. v. Bryan Cnty Sch. Dist.,
792 F.3d 1284, 1290–91 (11th Cir. 2015).
4
Case: 17-14834 Date Filed: 09/27/2018 Page: 5 of 11
light most favorable to the plaintiff. Lopez v. Target Corp.,
676 F.3d 1230, 1232
(11th Cir. 2012).
A. Claims against the MPD
The court properly dismissed the claims against the MPD because it is not a
proper legal entity that can be sued for the purposes of a § 1983 claim. See Dean
v. Barber,
951 F.2d 1210, 1214 (11th Cir. 1992).
B. Claims against the City
Plaintiffs allege that the City developed and maintained policies, procedures,
and customs that exhibited deliberate indifference to their constitutional rights. A
municipality may be held accountable in damages for the conduct of a particular
governmental actor only when the plaintiff shows that the execution of the
municipality’s official “policy” or “custom” effectively was the cause of the
complained of injury. Monell v. Dep’t of Soc. Servs. of New York,
436 U.S. 658,
691–94,
98 S. Ct. 2018, 2036–38 (1978). Thus, to impose liability, the plaintiffs
must show that their constitutional rights were violated, that the City had a custom
or policy that constituted deliberate indifference to that constitutional right, and
that the policy or custom caused the violation. T.W. ex rel. Wilson v. Sch. Bd. of
Seminole Cnty.,
610 F.3d 588, 603 (11th Cir. 2010) (quoting McDowell v. Brown,
392 F.3d 1283, 1289 (11th Cir. 2009)).
5
Case: 17-14834 Date Filed: 09/27/2018 Page: 6 of 11
The plaintiffs fail to support their municipal liability claims with anything
other than “a formulaic recitation of the elements of the cause of action.” Ashcroft
v. Iqbal,
556 U.S. 662, 678,
129 S. Ct. 1937, 1949 (2009) (internal quotation marks
omitted). The allegations about Officer Chandler’s anger issue are conclusory and
without support. They also fail to present evidence to support the allegations of
widespread abuse or anger issues within the MPD, and they do not allege any
specific ordinance, rule, or regulation that the City violated. Hence, the complaint
is due to be dismissed against the City because the factual allegations are not
sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly,
550 U.S. 544, 555–56, 127 S. Ct 1955, 1964–65 (2007).
C. Claims against Officer Chandler
Officer Chandler reasserts on appeal that he is entitled to qualified immunity
because his conduct did not “violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Vinyard v. Wilson,
311
F.3d 1340, 1346 (11th Cir. 2002) (quoting Harlow v. Fitzgerald,
457 U.S. 800,
818,
102 S. Ct. 2727, 2738 (1982)). “To receive qualified immunity, a government
official first must prove that he was acting within his discretionary authority” when
the alleged constitutional violation occurred. Cottone v Jenne,
326 F.3d 1352,
1357–58 (11th Cir. 2003). There is no dispute that Officer Chandler was acting
6
Case: 17-14834 Date Filed: 09/27/2018 Page: 7 of 11
within his capacity as a law enforcement officer employed by the MPD at the time
of the incident. Thus, the burden shifts to the plaintiffs to show that he was not
entitled to qualified immunity because the facts as alleged show that Officer
Chandler’s conduct violated a constitutional right and that right was clearly
established when Officer Chandler acted. Lee v. Ferraro,
284 F.3d 1188, 1194
(11th Cir. 2002). Thus, we consider first whether the plaintiffs’ allegations, if true,
establish a constitutional violation.
1. Excessive Force
The Fourth Amendment protects against unreasonable searches and seizures,
and “a person is ‘seized’ only when, by means of physical force or a show of
authority, h[er] freedom of movement is restrained” to the extent that she would
not feel free to leave. Knight Through Kerr v. Miami-Dade Cnty.,
856 F.3d 795,
822 (11th Cir. 2017) (quoting United States v. Mendenhall,
446 U.S. 553–54,
100
S. Ct. 1870, 1877 (1980)). The plaintiffs do not show such a restriction on their
freedom of movement.
Greene alleges that Officer Chandler yelled and screamed at her to retrieve
her license and insurance information. This is a valid request, and she had a
statutory duty to provide such information. See Ala. Code § 32-7A-6(a) and (h)
(1975) (requiring every motor vehicle operator to carry within vehicle evidence of
7
Case: 17-14834 Date Filed: 09/27/2018 Page: 8 of 11
motor vehicle liability insurance and to present such evidence upon request of a
law enforcement officer). Officer Chandler’s vociferous request for information
that was necessary to complete a written accident report does not amount to a
Fourth Amendment “seizure.” There is no allegation in the complaint that he used
physical force on Greene to obtain her compliance and to restrain her. Thus,
Greene cannot establish a constitutional violation, and the court properly dismissed
her claim.
Greene also claims that Officer Chandler’s actions violated her Fourteenth
Amendment right to bodily integrity and to be free from excessive force by law
enforcement. Officer Chandler responds that Greene fails to establish such a claim
because she does not allege that his actions shocked the conscience or that he used
force maliciously or sadistically to cause harm. See West v. Davis,
767 F.3d 1063,
1067 (11th Cir. 2014) (shocks the conscience); Fennell v. Gilstrap,
559 F.3d 1212,
1217 (11th Cir. 2009) (maliciously and sadistically). This is a more onerous
standard of proof than the analysis of excessive force under the Fourth
Amendment. In a non-custodial situation, like the present one, only a purpose to
cause harm unrelated to the legitimate object of law enforcement satisfies the
element of arbitrary conduct shocking to the conscience that is necessary for a due
process violation. See County of Sacramento v. Lewis,
523 U.S. 833, 836, 118 S.
8
Case: 17-14834 Date Filed: 09/27/2018 Page: 9 of 11
Ct. 1708, 1711–12 (1998). Greene’s bare and conclusory allegations fail to meet
her burden of pleading an egregious intentional wrong. Hence, the court properly
dismissed her substantive due process claim against Officer Chandler.
McCants contends that Officer Chandler screamed at her and punched her in
the chest when she arrived at the scene of the accident to check on Greene. There
is no allegation that Officer Chandler said or did anything to indicate to McCants
that she was not free to leave the accident scene. There is no allegation that
Officer Chandler sought to question her or detain her. Assuming this allegation is
true, as we must, it does not constitute a seizure under the Fourth Amendment.
McCants also fails to state a claim under the Fourteenth Amendment
because she does not support her allegation that Officer Chandler’s conduct
“shock[ed] the conscience.” See West v.
Davis, 767 F.3d at 1067. The only
allegation of physical contact between McCants and Officer Chandler is the
alleged punch to McCants’s chest. Although the punch seems unwarranted, there
is nothing to support the allegation that Officer Chandler acted maliciously or
sadistically in delivering the punch. McCants makes only conclusory allegations
in her complaint, and this is insufficient to overcome a motion to dismiss.
Accordingly, the court properly dismissed the substantive due process claim
against Officer Chandler.
9
Case: 17-14834 Date Filed: 09/27/2018 Page: 10 of 11
2. Equal Protection
In the complaint, plaintiffs assert identical claims for racial discrimination in
violation of the Equal Protection Clause of the Fourteenth Amendment. They
allege that their race was a motivating factor in Officer Chandler’s decision to use
excessive force. They contend that Officer Chandler’s attitude toward both of
them was racially biased and that his attitude toward the white male driver was
dramatically different. They claim that because of his racism, Officer Chandler
initially filed a false accident report.
“[T]he Equal Protection Clause requires government entities to treat
similarly situated people alike.” Campbell v. Rainbow City, Ala.,
434 F.3d 1306,
1313 (11th Cir. 2006). Hence, to state a plausible claim for an equal protection
violation, the plaintiffs must allege that through state action, similarly situated
persons have been treated disparately. They cannot make such a showing. As for
Greene, she does not allege that Officer Chandler failed to ask the white male
driver for his license and insurance information although he requested it from her.
Further, there are no allegations that McCants, who was not involved in the
accident, was similarly situated to the white male driver, who was involved in the
accident. Neither plaintiff has offered any comments, statements, or facts from
which one could infer that Officer Chandler performed all these tasks with a racial
10
Case: 17-14834 Date Filed: 09/27/2018 Page: 11 of 11
animus. Accordingly, the plaintiffs fail to state a valid equal protection claim, and
the court properly dismissed it.
The plaintiffs fail to show that Officer Chandler violated their constitutional
rights, and as such, he is entitled to qualified immunity. Therefore, the court
properly dismissed the Plaintiffs’ complaint against the City, the MPD, and Officer
Chandler with prejudice. Accordingly, we affirm the judgment of dismissal.
AFFIRMED.
11
