IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

ANTONIO LOVE, : 

Plaintiff, : 

vs. : CA 10-0166-CG-C 

CITY OF MOBILE, et al., : 

Defendants. 

REPORT AND RECOMMENDATION

This cause is before the undersigned for issuance of a report and recommendation, 

pursuant to 28 U.S.C. ' 636(b)(1)(B), on the complaint (see Doc. 16, Exhibit A), the 

motion to dismiss filed by defendants Dollar General Corporation and Kenneth Gooden 

(Doc. 16), the plaintiff=s opposition (Doc. 18), and the moving defendants= response (Doc. 

19). After consideration of the foregoing pleadings, it is the undersigned=s 

recommendation that the motion to dismiss filed by Dollar General Corporation and 

Kenneth Gooden be GRANTED IN PART and DENIED IN PART. 

FINDINGS OF FACT

1. Plaintiff, who is deaf and mentally disabled, filed a twelve-count complaint 

against the moving defendants, the City of Mobile, Officer Kevin Rodgers, and others, 

arising out of a July 24, 2009 incident at the Dollar General Store located on Azalea Road 

in Mobile, Alabama. (See Doc. 16, Exhibit A, COMPLAINT) Love claims he was 

Case 1:10-cv-00166-CG-C Document 29 Filed 06/21/10 Page 1 of 16
2 

subjected to a false arrest, excessive force and assault and battery at the hands of Officer 

Rodgers and another unidentified police officer. (See id.) 

2. Plaintiff, a frequent visitor to the Dollar General on Azalea Road, entered 

the store=s bathroom after feeling sick to his stomach. (Id. at & 13) For reasons unknown 

to Love, Dollar General store manager Kenneth Gooden called 911while he was inside 

the restroom. (Id. at & 14) When officers arrived at the store, they began banging on the 

bathroom door and yelling for plaintiff to exit the restroom; however, Adue to his being 

deaf, [p]laintiff could not hear what the officers were yelling, he could only detect the 

vibrations coming from them banging on the door.@ (Id. at & 15) Frightened, the plaintiff 

stayed in the bathroom and hid under the umbrella he had brought to the store with him. 

(Id. at & 16) 

3. Receiving no response from Love, the officers shot pepper spray under the 

bathroom door1

 and eventually open the door with such force that plaintiff suffered a 

sizeable wound to his head as he was thrown backwards. (Id. at && 17 & 19) The officers 

tasered Love three times and arrested him on charges of failing to obey orders, resisting 

arrest, and disorderly conduct. (Id. at && 20 & 22) After a magistrate refused to issue 

arrest warrants on these charges, the officers returned plaintiff to his apartment complex 

Awhere they left him in the parking lot with no explanation to [his] worried family about 

where [he] had been for the prior six hours.@ (Id. at && 23-24) 

 1

 When the pepper spray hit plaintiff, he threw down the umbrella and turned to the 

sink to rinse the spray off his face. (Id. at & 18) 

Case 1:10-cv-00166-CG-C Document 29 Filed 06/21/10 Page 2 of 16
3 

4. Gooden had prior knowledge of plaintiff and his disabilities and though the 

store manager was aware that it was plaintiff in the bathroom A[t]hroughout the entire 

incident,@ he never relayed this information to the officers. (Id. at && 25-26)

5. Love asserts the following two claims against defendants Dollar General 

and Gooden:

 COUNT X 

65. Plaintiff realleges all prior paragraphs of the Complaint as if 

set out here in full. 

66. Defendants Dollar General Corporation, Kenneth Gooden 

and/or Fictitious Defendant AA,@ knew, or should have known, that Plaintiff 

was deaf and mentally disabled.

67. Defendants Dollar General Corporation, Kenneth Gooden 

and/or Fictitious Defendant AA@ were under a duty to simply unlock the 

door to check on Plaintiff and/or communicate to the police Plaintiff=s 

disabilities so that they could properly handle the situation and/or 

communicate to the police the ease at which the subject door could have 

been unlocked. 

68. Defendants Dollar General Corporation, Kenneth Gooden 

and/or Fictitious Defendant AA@ negligently or wantonly failed to simply 

unlock the door to check on Plaintiff and/or negligently or wantonly failed 

to communicate to the police Plaintiff=s disabilities and/or negligently or 

wantonly failed to communicate to the police the ease at which the subject 

door could have been unlocked. 

69. As a result of the conduct of the Defendants set out in this 

count, Plaintiff was pepper sprayed and tasered by the police and was 

caused to suffer emotional and physical injuries and damages, 

embarrassment, humiliation and has been caused to incur medical bills and 

other expenses. 

WHEREFORE, Plaintiff demands general compensatory and 

punitive damages plus interest and costs, both jointly and severally against 

Case 1:10-cv-00166-CG-C Document 29 Filed 06/21/10 Page 3 of 16
4 

all Defendants, both named and fictitious. 

COUNT XI 

70. Plaintiff realleges all prior paragraphs of the Complaint as if 

set out here in full. 

71. Defendants Dollar General Corporation, Kenneth Gooden 

and/or Fictitious Defendant AB@ were under a duty to properly train 

managers and/or employees on the proper way to handle similar situations. 

72. Defendants Dollar General Corporation, Kenneth Gooden 

and/or Fictitious Defendant AB@ were under a duty to properly supervise 

managers and/or employees when a[] situation such as this occurred. 

73. Defendants Dollar General Corporation, Kenneth Gooden 

and/or Fictitious Defendant AB@ negligently or wantonly failed to properly 

train, retain and/or supervise managers and employees. 

74. As a result of the conduct of the Defendants set out in this 

count, Plaintiff was pepper sprayed and tasered by the police and was 

caused to suffer emotional and physical injuries and damages, 

embarrassment, humiliation and has been caused to incur medical bills and 

other expenses. 

WHEREFORE, Plaintiff demands general compensatory and 

punitive damages plus interest and costs, both jointly and severally against 

all Defendants, both named and fictitious.

(Doc. 16, Exhibit A, COMPLAINT, at && 65-74)

6. Defendants Dollar General and Kenneth Gooden filed their Rule 12(b)(6) 

motion to dismiss on April 29, 2010. (Doc. 16) The plaintiff joined the issue on May 20, 

2010 (Doc. 18) and the moving defendants filed their response to plaintiff=s opposition on 

May 27, 2010 (Doc. 19).

 CONCLUSIONS OF LAW

A. Motion to Dismiss Standard. 

Case 1:10-cv-00166-CG-C Document 29 Filed 06/21/10 Page 4 of 16
5 

1. Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a 

defendant may move to dismiss a complaint on the basis that the plaintiff has failed to 

state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6). A Rule 

12(b)(6) motion questions the legal sufficiency of a complaint (or portions of a 

complaint); therefore, in assessing the merits of a Rule 12(b)(6) motion, the court must 

assume that all the factual allegations set forth in the complaint are true. See, e.g., United 

States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991); 

Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). Moreover, all factual allegations 

are to be construed in the light most favorable to the plaintiff. See, e.g., Brower v. County 

of Inyo, 489 U.S. 593, 598, 109 S.Ct. 1378, 1382, 103 L.Ed.2d 628 (1989). 

2. Rule 8(a)(2) generally sets the benchmark for determining whether a 

complaint=s allegations are sufficient to survive a Rule 12(b)(6) motion. See Ashcroft v. 

Iqbal, U.S. , 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (AUnder Federal 

Rule of Civil Procedure 8(a)(2), a pleading must contain a >short and plain statement of 

the claim showing that the pleader is entitled to relief.= As the Court held in Twombly, . . . 

the pleading standard Rule 8 announces does not require >detailed factual allegations,= but 

it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.@). 

Indeed, A[a] pleading that offers >labels and conclusions= or >a formulaic recitation of the 

elements of a cause of action will not do.=@ Id., quoting Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 555, 127 S.Ct. 1955, 1964-1965, 167 L.Ed.2d 929 (2007). ANor does a 

complaint suffice if it tenders >naked assertion[s]= devoid of >further factual 

Case 1:10-cv-00166-CG-C Document 29 Filed 06/21/10 Page 5 of 16
6 

enhancement.=@ Id., quoting Twombly, 550 U.S. at 557, 127 S.Ct. at 1955. 

To survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to state a claim to relief that is plausible on 

its face. A claim that 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. The plausibility standard is 

not akin to a probability requirement, but it asks for more than a sheer 

possibility that a defendant has acted unlawfully. Where a complaint pleads 

facts that are merely consistent with a defendant=s liability, it stops short of 

the line between possibility and plausibility of entitlement to relief. 

Two working principles underlie our decision in Twombly. First, the 

tenet that a court must accept as true all of the allegations contained in a 

complaint is inapplicable to legal conclusions. Threadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements, do 

not suffice. Rule 8 marks a notable and generous departure from the 

hyper-technical, code-pleading regime of a prior era, but it does not unlock 

the doors of discovery for a plaintiff armed with nothing more than 

conclusions. Second, only a complaint that states a plausible claim for relief 

survives a motion to dismiss. Determining whether a complaint states a 

plausible claim for relief will . . . be a context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense. But 

where the well-pleaded facts do not permit the court to infer more than the 

mere possibility of misconduct, the complaint has allegedBbut it has not 

show[n]Bthat the pleader is entitled to relief. 

Id. at , 129 S.Ct. at 1949-1950 (internal citations and quotation marks omitted); see 

also id. at , 129 S.Ct. at 1950-1951 (a plaintiff must nudge his claims A>across the 

line from conceiveable to plausible.=@). 

B. State Law Claims Asserted Against Dollar General & Gooden. 

3. Plaintiff has asserted a negligence/wantonness claim against defendants 

Kenneth Gooden and Dollar General and, as well, claims that these defendants are liable 

for their negligent or wanton failure to properly train managers and employees. (See Doc. 

Case 1:10-cv-00166-CG-C Document 29 Filed 06/21/10 Page 6 of 16
7 

16, Exhibit A, COMPLAINT, at && 65-74) In response to the moving defendants= motion 

to dismiss all claims, plaintiff has admitted that the negligent hiring, training, and 

supervision claim asserted against Gooden should be dismissed. (Doc. 18, at 2 & 3 n.1) 

Accordingly, that portion of Count XI directed to Gooden is due to be DISMISSED 

WITH PREJUDICE. See Ott v. City of Mobile, 169 F.Supp.2d 1301, 1315 (S.D. Ala. 

2001) (AAlabama law is clear that the tort of negligent supervision or training requires as 

an element the existence of a master-servant relationship. . . . A supervisor is not the 

master of a subordinate, nor is the subordinate the servant of the supervisor; rather, as 

Alabama cases make plain, the status of >master= is restricted to one who is actually or 

essentially the employer of the servant.@). 

4. The pivotal issue with respect to the instant motion to dismiss is whether 

plaintiff has asserted a negligence cause of action against Gooden and Dollar General. 

A>The elements of a negligence claim are a duty, a breach of that duty, causation, and 

damage.=@ Prill v. Marrone, 23 So.3d 1, 6 (Ala. 2009), quoting Armstrong Business 

Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 679 (Ala. 2001); see also Ford Motor Co. v. 

Burdeshaw, 661 So.2d 236, 238 (Ala. 1995) (ATo recover under a negligence claim, the 

plaintiff must establish (1) that the defendant owed a duty to the plaintiff; (2) that the 

defendant breached that duty; (3) that the plaintiff suffered a loss or an injury; and (4) that 

the defendant=s negligence was the actual and proximate cause of that loss or injury.@). 

5. Gooden and Dollar General take the position that they did not owe plaintiff 

Case 1:10-cv-00166-CG-C Document 29 Filed 06/21/10 Page 7 of 16
8 

a legal duty, see Thompson v. Mindis Metals, Inc., 692 So.2d 805, 807 (Ala. 1997) (A>It is 

settled that for one to maintain a negligence action the defendant must have been subject 

to a legal duty.= . . . A legal duty arises either from the common law or from a statute.@), a 

strictly legal question to be determined by the court, Pritchett v. ICN Medical Alliance, 

Inc., 938 So.2d 933, 937 (Ala. 2006) (A>In Alabama, the existence of a duty is a strictly 

legal question to be determined by the court.=@).2

 While it is all too clear, as defendants 

contend, that a storekeeper is not the insurer of a customer=s safety, see, e.g., Wal-Mart 

Stores, Inc. v. McClinton, 631 So.2d 232, 234 (Ala. 1993); Borden v. Consumer 

Warehouse Foods, Inc., 601 So.2d 976, 977 (Ala. 1992), it is just as clear that A>a 

storekeeper is under a duty to exercise reasonable care in providing and maintaining 

reasonably safe premises for the use of his customers.=@ Cuevas v. W.E. Walker, Inc., 565 

So.2d 176, 177 (Ala. 1990) (citations omitted); see also McClinton, supra, 631 So.2d at 

234 (same); Borden, supra, 601 So.2d at 677 (same). In light of the fact that the Alabama 

Supreme Court uses the words customer and invitee interchangeably, compare Borden, 

supra, 601 So.2d at 979 (AThe duty of a shopkeeper to maintain premises in a reasonably 

safe condition for its invitees is well settled. Although a storekeeper is not an insurer of 

the customer=s safety while the customer is on the premises, we believe that the facts of 

this case show that the storekeeper permitted the customers to use its premises while the 

 2

 As reflected by Alabama case law, in particular all cases relied upon by the 

defendants herein, though this is a legal question for the court it is one answered at the summary 

judgment stage or later. See, e.g., id. at 934 (ATeresa Pritchett appeals from a summary judgment 

in favor of ICN Medical Alliance, Inc.@). 

Case 1:10-cv-00166-CG-C Document 29 Filed 06/21/10 Page 8 of 16
9 

floors on such premises were being cleaned.@) with Cuevas, supra, 565 So.2d at 177 (A>It 

is well settled that a storekeeper is under a duty to exercise reasonable care in providing 

and maintaining reasonably safe premises for the use of his customers.= . . . As a general 

rule, an invitor will not be liable for injuries to an invitee resulting from a danger that was 

known to the invitee or should have been observed by the invitee in the exercise of 

reasonable care.@), and reading the allegations of the complaint (see Doc. 16, Exhibit A, 

COMPLAINT, at & 13 (AOn or about July 24, 2009, Plaintiff, who is deaf and mentally 

disabled, entered the Dollar General Store located on Azalea Road. Plaintiff had 

frequented this store many times before, both alone and with his family members. Once 

inside, Plaintiff began feeling sick to his stomach and proceeded to enter the restroom.@)) 

in the light most favorable to plaintiff, as this Court must, it is clear to the undersigned, 

contrary to the moving defendants= position (see Doc. 16, MEMORANDUM, at 6 n.2 

(A[T]here is no evidence before the court that Plaintiff was an invitee. He does not allege 

that he was an invitee, nor does he state for what purpose he visited the Dollar General 

premises aside from, perhaps, the need to use the restroom.@)), 3 that Love was a 

customer/invitee of the Dollar General on July 24, 2009. See Ex parte Kraatz, 775 So.2d 

801, 803 (Ala. 2000) (A>Generally, a patron of a business, such as a shopping center, in an 

 3

 The undersigned finds the moving defendants= argument in this regard curious in 

light of their citation to various cases regarding a storekeeper=s duty vis-a-vis his/its customers. 

(See Doc. 16, MEMORANDUM, at 5-6) In citing to those cases, the moving defendants 

backhandedly admit that Love was a customer of the Dollar General Store on the date in 

question and since, as aforesaid, the Alabama Supreme Court uses the words customer and 

invitee interchangeably, the moving parties have implicitly assumed, as well, that Love was an 

Case 1:10-cv-00166-CG-C Document 29 Filed 06/21/10 Page 9 of 16
10 

invitee.=@).4 

 

invitee of the Dollar General on July 24, 2009. 

4

 In Alabama, an individual who enters onto the premises of another can hold only 

one of three statuses: trespasser, licensee, or invitee. See, e.g., Ex parte Mountain Top Indoor 

Flea Market, Inc., 699 So.2d 158, 161 (Ala. 1997) (A>In Alabama the duty owed by a landowner 

to a person on his property varies greatly based upon the classification of the person on the land. 

The three classifications of persons coming onto the land are trespasser, licensee, and invitee . . . 

.=@); Shelton v. Boston Financial, Inc., 638 So.2d 824, 825 (Ala. 1994) (AIn Alabama the duty 

owed by a landowner to a person on the landowner=s property varies greatly, based upon the 

classification of the person on the property. Alabama law imposes three levels of duty. The 

highest duty is owed to invitees.@). Love could only have one of these three statuses on the date 

in question which is why, given the allegations of the complaint, the undersigned finds, for 

purposes of the present motion, that plaintiff was an invitee. It appears to the undersigned that 

the best case scenario for the moving defendants is that plaintiff=s status would be a question for 

the jury. See Edwards v. Intergraph Services Co., Inc., 4 So.3d 495, 502 (Ala.Civ.App. 2008) 

(A>As a general rule, the question whether a plaintiff is a licensee or is an invitee is factual, and 

should therefore be resolved by the trier of fact.=@). 

Case 1:10-cv-00166-CG-C Document 29 Filed 06/21/10 Page 10 of 16
11 

6. In light of the foregoing, it is clear to the undersigned that Gooden and 

Dollar General did, in fact, owe Love a duty, namely to exercise reasonable care in 

providing and maintaining reasonably safe premises for his use. The moving defendants=

citation to Alabama cases which establish that a defendant is only liable to a plaintiff for 

the criminal actions of a third party if the defendant knew or had reason to know of a 

probability of conduct by that third person that would endanger the plaintiff, see, e.g., Ex 

parte Wild Wild West Social Club, Inc., 806 So.2d 1235, 1240 (Ala. 2001); Finley v. 

Patterson, 705 So.2d 826, 829 (Ala. 1997); Moye v. A.G. Gaston Motels, Inc., 499 So.2d 

1368 (Ala. 1986), does not assist this Court=s analysis inasmuch as there is nothing to 

suggest that the actions of the police officers in question amounts to criminal conduct.5

 5

 Moreover, these cases are distinguishable because Gooden and Dollar General 

hailed the police to the store for the specific purpose of extracting plaintiff from the bathroom. 

Finally, the undersigned finds these cases of no assistance at this stage in the proceedings since 

they were all decided at a much later stage in the proceedings. See Ex parte Wild Wild West 

Social Club, Inc., supra, 806 So.2d at 1237 (case submitted to jury); Finley, supra, 705 So.2d at 

827 (trial court directed a verdict for the defendant); Moye, supra, 499 So.2d at 1369 (trial court 

granted summary judgment in favor of the defendants). 

The defendants further contend that even assuming they created a dangerous condition by 

calling the police, they cannot be held responsible for plaintiff=s injury at the hands of the police 

(i.e., the intervention of another) because of the lack of reasonable foreseeabilty. AIt is settled law 

in Alabama that even if one negligently creates a dangerous condition, he or she is not 

responsible for injury that results from the intervention of another cause, if at the time of the 

original negligence, the intervening cause cannot reasonably be foreseen.@ Sims v. Crates, 789 

So.2d 220, 224 (Ala. 2000); see Alabama Power Co. v. Moore, 899 So.2d 975, 979 (Ala. 2004) 

(AThe proximate cause of an injury is that cause which, in the natural and probable sequence of 

events, and without the intervention or coming in of some new or independent cause, produces 

the injury, and without which the injury would not have occurred. [I]f a new, independent act 

breaks the chain of causation, it supersedes the original act, which thus is no longer the 

proximate cause of the injury. [A]n [act] is superceding only if it is unforeseeable. A foreseeable 

intervening [act] does not break the causal relationship between the defendants= actions and the 

plaintiffs= injuries.@ (internal quotation marks and citations omitted; emphasis in original)); cf. Ex 

Case 1:10-cv-00166-CG-C Document 29 Filed 06/21/10 Page 11 of 16
12 

Instead, as aforesaid, it is clear to the undersigned that because the moving defendants 

owed a legal duty to Love as an invitee to the General Dollar on the date in question 

judgment in favor of these defendants at the motion to dismiss stage, if not beyond, is 

impermissible. Cf. Ex parte Mountain Top Indoor Flea Market, supra, 699 So.2d at 161 

(A[A] summary judgment is rarely appropriate in negligence and personal injury cases.@); 

Hawkins v. Montgomery Industries Int=l, Inc., 536 So.2d 922, 926-927 (Ala. 1988) 

(A>[R]arely is summary judgment appropriate in a claim based on negligence. Stated 

another way, this Court is firmly committed to a rule of extreme caution in its review of a 

summary judgment granted in a tort claim context. But not even the application of this 

rule can spare the plaintiff from the fate of summary judgment where, after opportunity 

 

parte Wild Wild West Social Club, Inc., supra, 806 So.2d at 1241 (A>[F]oreseeability must be 

based on the probability that harm will occur, rather than the bare possibility.@). 

The problem with the moving defendants= argument in this regard, again, is that none of 

the foregoing cases were decided on motion to dismiss for failure to state a claim upon which 

relief may be granted. See Moore, supra, 899 So.2d at 977 (AAlabama Power Company [] 

appeals from a judgment entered on a jury verdict, awarding David Moore compensation for 

injuries he sustained when he came into contact with an electrified guy wire, as well as punitive 

damages. We reverse and remand.@); Ex parte Wild Wild West Social Club, Inc., supra, 806 

So.2d at 1237 (case submitted to jury); Sims, supra, 789 So.2d at 222 (AJerry W. Sims filed a 

wrongful-death action against Michael T. Ilczyszin and Clark McDuffie Crates. The trial court 

entered a summary judgment in favor of Ilczyszin and a judgment on a jury verdict in favor of 

Crates. Sims appeals. We affirm the judgment in favor of Ilczyszin, reverse the judgment in 

favor of Crates, and remand.@). This is undoubtedly because, as recognized in Moore, supra,

A>[o]rdinarily, it is a jury question whether consequences of an act are reasonably foreseeable, 

but, in a proper case, it is a legal question.=@ 899 So.2d at 979 (citation omitted). Reasonable 

foreseeability becomes a legal question only A>[w]hen . . . the facts of the cause are not 

conflicting, and where there can be no reasonable difference of opinion as to the conclusion to be 

reached upon them[.]=@ Id. (citation omitted). This Court will not be in a position to make the 

foregoing determinations until after the completion of discovery and it has before it all the facts 

surrounding the events of July 24, 2009. 

Case 1:10-cv-00166-CG-C Document 29 Filed 06/21/10 Page 12 of 16
13 

for full discovery, the evidence, when viewed most favorably to the plaintiff under the 

scintilla rule, fails to raise a reasonable inference that the alleged negligence was the 

proximate cause of the injuries complained of.=@); Cabaniss v. Wilson, 501 So.2d 1177, 

1182 (Ala. 1986) (A[I]n negligence and personal injury cases, where the facts constituting 

the conduct of the parties, as well as the standard of care which they should have 

exercised are to be determined, the case is rarely appropriate for summary judgment.@

(emphasis in original)). In other words, the questions of whether the defendants breached 

the duty they owed Love,6

 proximate causation, and damages are questions normally 

reserved for the jury. Jones Food Co., Inc. v. Shipman, 981 So.2d 355, 361 (Ala. 2006) 

(AIf the trial court determines that the defendant owed the plaintiff a duty, then the 

questions of breach of that duty, proximate causation and damages are normally resolved 

by the jury.@); see also Pritchett, supra, 938 So.2d at 938 (A>[Q]uestions regarding breach 

of that duty . . . and proximate cause are ordinarily questions of fact for the jury.=@). 

7. Because the moving defendants owed a legal duty to plaintiff, plaintiff=s 

negligent and/or wanton failure to train claim asserted against Dollar General cannot be 

dismissed. (See Doc. 16, at 10 (dismissal of failure to train claim premised on lack of 

duty)) 

 6

 The undersigned reads the complaint as alleging that the moving defendants 

breached their legal duty to the plaintiff/invitee by failing to simply unlock the bathroom door in 

light of their knowledge that plaintiff was the person in the bathroom and that he suffered from 

deafness and other disabilities, or by failing to communicate with the police plaintiff=s 

deafness/disabilities, or by failing to communicate to the police the ease with which the door 

could have been unlocked. 

Case 1:10-cv-00166-CG-C Document 29 Filed 06/21/10 Page 13 of 16
14 

8. Finally, the undersigned declines to recommend that plaintiff=s allegations 

of wantonness be dismissed at this stage of the proceedings both because no discovery 

has been conducted and also because these allegations can easily be disposed of on 

summary judgment. In other words, plaintiff has properly alleged wantonness; it remains 

to be seen whether he can establish through the evidence garnered during the discovery 

process that the conduct of Gooden and Dollar General (or their failure to act) rises to the 

level of wantonness thereby allowing a jury to consider such claims. Compare Avery v. 

Geneva County, 567 So.2d 282, 289 (Ala. 1990) (AThe defendants made a prima facie 

showing that there was an absence of wantonness; the plaintiff has not shown substantial 

evidence for the jury to consider on the question whether the conduct of the defendants 

constituted wantonness. As to the wantonness claim, the summary judgment is due to be 

affirmed.@ (emphasis supplied)) and Berness v. Regency Square Associates, Ltd., 514 

So.2d 1346, 1350 (Ala. 1987) (AWe are of the opinion that this evidence was not 

sufficient to foreclose entry of a summary judgment on the wantonness count. In fact, the 

affidavit does not show what caused the fall of the elderly lady, only that it happened in 

the same area. We believe that under the facts of this case, there is not a scintilla of 

evidence of wanton misconduct on the part of any of the defendants; therefore, summary 

judgment was appropriate as to each defendant on the wantonness claim.@ (emphasis 

supplied)) with Terry v. Life Ins. Co. of Georgia, 551 So.2d 385, 385 & 387 (Ala. 1989) 

(reversing grant of summary judgment in a suit Aalleging negligence and wantonness in 

the maintenance of carpet that allegedly created a dangerous condition that caused Mrs. 

Case 1:10-cv-00166-CG-C Document 29 Filed 06/21/10 Page 14 of 16
15 

Terry to fall and injure herself.@). 

CONCLUSION

In light of the foregoing, the motion to dismiss filed by defendants Dollar General 

Corporation and Kenneth Gooden (Doc. 16) is due to be GRANTED IN PART and 

DENIED IN PART. Plaintiff=s claim against Gooden for negligent or wanton failure to 

properly train managers and employees should be DISMISSED WITH PREJUDICE; 

the motion to dismiss is otherwise due to be DENIED.

7

DONE this the 21st day of June, 2010. 

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE 

 7

 The issues raised by the defendants with respect to plaintiff=s remaining claims 

are, at best, conducive to summary judgment practice; dismissal of such claims is simply not 

proper under Alabama law. 

Case 1:10-cv-00166-CG-C Document 29 Filed 06/21/10 Page 15 of 16
16 

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND 

 RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND 

 FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. 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. Failure to do so will bar a de novo determination by the district judge of anything in the 

recommendation and will bar an attack, on appeal, of the factual findings of the Magistrate Judge. See

28 U.S.C. ' 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 

F.2d 404 (5th Cir. Unit B, 1982)(en banc). The procedure for challenging the findings and 

recommendations of the Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), 

which provides that: 

A party may object to a recommendation entered by a magistrate judge in a dispositive 

matter, that is, a matter excepted by 28 U.S.C. ' 636(b)(1)(A), by filing a >Statement of 

Objection to Magistrate Judge=s Recommendation= within ten days8

 after being served 

with a copy of the recommendation, unless a different time is established by order. The 

statement of objection shall specify those portions of the recommendation to which 

objection is made and the basis for the objection. The objecting party shall submit to the 

district judge, at the time of filing the objection, a brief setting forth the party=s arguments 

that the magistrate judge=s recommendation should be reviewed de novo and a different 

disposition made. It is insufficient to submit only a copy of the original brief submitted 

to the magistrate judge, although a copy of the original brief may be submitted or referred 

to and incorporated into the brief in support of the objection. Failure to submit a brief in 

support of the objection may be deemed an abandonment of the objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals; only the district 

judge's order or judgment can be appealed. 

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C. ' 1915 and 

FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original records in this case are 

adequate for purposes of review. Any party planning to object to this recommendation, but unable to pay 

the fee for a transcript, is advised that a judicial determination that transcription is necessary is required 

before the United States will pay the cost of the transcript.

 8

 Effective December 1, 2009, the time for filing written objections was extended 

to A14 days after being served with a copy of the recommended disposition[.]@ Fed.R.Civ.P. 

72(b)(2). 

Case 1:10-cv-00166-CG-C Document 29 Filed 06/21/10 Page 16 of 16