Daniels et al v. City of Hartford, Alabama et al

Filing 65

MEMORANDUM OPINION AND ORDER directing as follows: (1) the motion to strike 53 is GRANTED; (2) the motion for summary judgment 51 is GRANTED; (3) all claims against all defendants are DISMISSED with prejudice, as further set out in order. Signed by Hon. Chief Judge Mark E. Fuller on 8/18/09. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION F R E D DANIELS and G A R R E T DANIELS, P la in tiffs , v. CITY OF HARTFORD, A L A B A M A , et al., D e fe n d a n ts . ) ) ) ) ) ) ) ) ) ) )

C A S E NO. 1:08-CV-668 ( W O ­ P u b lis h )

M E M O R A N D U M OPINION AND ORDER I . INTRODUCTION P la in tiffs Fred and Garret Daniels, father and son, filed this action against Dale C o u n ty , Alabama, Sheriff Wally Olson, Deputy Tim Byrd, Bryant Williams, the City of H a rtfo rd , Alabama, and Chief of Police Nick Finer on December 5, 2008. They seek to re m e d y alleged violations of rights protected by the Fourth and Fourteenth Amendments to th e Constitution of the United States and alleged commission of various state common law to r ts. They allege, among other things, that the defendants arrested and detained them w ith o u t probable cause and subjected them to unconstitutional conditions during their pretrial d e te n tio n . The case is now before the Court on a Motion for Summary Judgment, which D e fe n d a n ts filed on March 19, 2009. (Doc. # 51.) The Court has carefully considered the le n g th y briefs in support of and in opposition to the Motion, together with the applicable law. For the reasons set forth below, the Motion is due to be GRANTED. 1

II. JURISDICTION AND VENUE This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367 because P la in tiffs ' claims are pursuant to the Fourth and Fourteenth Amendments to the United States C o n s titu tio n , 42 U.S.C. § 1983, and various state law torts. The parties do not contest venue a n d personal jurisdiction, and the Court finds a sufficient basis for each. III. LEGAL STANDARD U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). "An issue of fact is `genuine' if the record as a whole c o u ld lead a reasonable trier of fact to find for the nonmoving party. An issue is `material' if it might affect the outcome of the case under the governing law." Redwing Carriers, Inc. v . Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (quoting Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 248 (1986)). The party asking for summary judgment "always bears the initial responsibility of in fo rm in g the district court of the basis for its motion, and identifying those portions of `the p le a d in g s, depositions, answers to interrogatories, and admissions on file, together with the a ffid a v its, if any,' which it believes demonstrate the absence of a genuine issue of material fa c t." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence s h o w in g there is no dispute of material fact, or by showing the nonmoving party has failed 2

to present evidence in support of some element of its case on which it bears the ultimate b u rd e n of proof. Id. at 322-23. Once the moving party has met its burden, Rule 56(e) " re q u ire s the nonmoving party to go beyond the pleadings and by her own affidavits, or by th e `depositions, answers to interrogatories, and admissions on file,' designate `specific facts s h o w in g that there is a genuine issue for trial.'" Id. at 324. To avoid summary judgment, the n o n m o v in g party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1 9 8 6 ). On the other hand, a court ruling on a motion for summary judgment must believe th e evidence of the nonmovant and must draw all justifiable inferences from the evidence in th e nonmoving party's favor. Anderson, 477 U.S. at 255. After the nonmoving party has re s p o n d e d to the motion for summary judgment, the Court must grant summary judgment if th e re is no genuine issue of material fact and the moving party is entitled to judgment as a m a tte r of law. Fed. R. Civ. P. 56(c). I V . FACTS AND PROCEDURAL HISTORY Plaintiffs Fred Daniels ("Fred") and Garret Daniels ("Garret") claim that Defendants S h e riff Wally Olson ("Sheriff Olson") and Deputy Tim Byrd ("Deputy Byrd") arrested them, d e ta in e d them, and subjected them to criminal judicial proceedings, all absent probable c a u s e . They also allege that defendants Sheriff Olsen and Dale County, Alabama ("Dale C o u n ty " ) violated their right to due process under the Fourteenth Amendment to the C o n s titu tio n of the United States by subjecting them to unconstitutional conditions of pretrial

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detention.1 Plaintiffs in the Amended Complaint assert claims against Sheriff Olsen both in h is official capacity as Sheriff of Dale County, Alabama, and in his individual capacity. Plaintiffs sue Deputy Byrd in his individual capacity only. Defendants categorically deny these allegations. Sheriff Olsen and Deputy Byrd c la im they are entitled to qualified immunity with respect to Plaintiffs' claims. Dale County m a k e s several arguments in opposition to the claims against it. In accordance with their o p p o sitio n , Defendants have moved for summary judgment in their favor on all claims. (Doc. # 51.) Plaintiffs responded, and Defendants replied.2 The Motion is therefore under s u b m is s io n and ripe for disposition. The Court has carefully considered all documents s u b m itte d in support of and in opposition to the Motion. The submissions of the parties, v ie w e d in the light most favorable to the nonmoving party, establish the following relevant fa c ts : S h e riff Olson and his deputies, including Deputy Byrd, arrested Fred and Garret on F e b ru a ry 7, 2008. Deputy Byrd swore out the criminal complaint and arrest warrants for Fred

The original Complaint listed three additional defendants: the City of Hartford, Alabama, Hartford Chief of Police Nick Finer, and Bryant ("Buddy") Williams. The Court entered judgment in favor of the City of Hartford and Chief Finer by stipulation of the parties on September 30, 2008. (Doc. # 34.) The Court dismissed Buddy Williams by stipulation of the parties on February 2, 2009. (Doc. # 50.) Defendants included in their reply a Motion to Strike. (Doc. # 54.) The Motion is due to be granted with respect to newspaper articles, statements made by District Attorney Kirke Adams after the release of the Daniels men, and statements Garret made about what others told him after his release. See Fed. R. Evid. 401, 402, 801, 802. Additionally, the Court will only consider facts supported by record evidence pursuant to Federal Rule of Civil Procedure 56. The Court makes no determination regarding the admissibility of these items at trial or in other proceedings, but rules only for purposes of the instant Motion. 4
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and Garret on an alleged triple murder-for-hire the same day. He also swore out criminal c o m p la in ts and arrest warrants for a conspiracy to commit assault. The complaints alleged th a t between November 1, 2007, and January 31, 2008, Fred and Garret conspired to commit m u rd e r-fo r-h ire and assault-for-hire. The complaints named as targets of the murder-for-hire K e n Quattlebaum ("Judge Quattlebaum"), a local Circuit Judge,3 Bryant Williams ("Buddy W illia m s " ), a local attorney, and Sharmon Daniels ("Sharmon"), Garret's ex-wife. The ta rg e t of the alleged assault was Tim Williams, the ex-husband of Fred's daughter and G a rre t's sister Denise. Sheriff Olsen and Deputy Byrd claim they had probable cause to b e lie v e Fred and Garret asked Drew Garner ("Garner"), an acquaintance of theirs, to contract fo r the murder and assault of these individuals. Sheriff Olsen claims he had probable cause to believe Garner followed through with the request and approached a confidential informant, C a rl Sylvestry ("Sylvestry"), about the murders and assault. The undisputed facts Sheriff O ls e n and Deputy Byrd were able to rely upon to support probable cause are as follows: A. Daniels v. Daniels Hearing and Initial Hartford Police Department Investigation T h e facts that led to the arrest of Fred and Garret first came to light in a divorce p ro c e e d in g before Judge Quattlebaum on January 30, 2008. The proceeding was an attempt b y Buddy Williams to collect attorney's fees he incurred during the representation of

J u d g e Quattlebaum is Circuit Judge for the 33rd Judicial Circuit of the State of A la b a m a , which includes Geneva and Dale Counties. 5

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Sharmon, Garret's then-ex-wife, in the divorce of Sharmon and Garret.4 During the hearing, B u d d y Williams represented to the court that Fred and Garret were suspects in a murder-forh ire conspiracy directed by them, and that Fred and Garret had contracted for the murder of J u d g e Quattlebaum, Sharmon, and Buddy Williams himself, and had contracted for the a s s a u lt of Tim Williams, who was previously married to Fred's daughter Denise Williams. Buddy Williams called Hartford Police Chief Nick Finer ("Chief Finer") to the stand d u rin g the hearing, and Chief Finer testified to the facts Buddy Williams had brought to the a tte n tio n of the court. He also testified to the following facts: Garner, an associate of Fred a n d Garret, approached a confidential informant, Sylvestry, and solicited the assault and m u rd e rs for hire. Sylvestry then contacted the Hartford Police Department, which arranged a meeting between Garner, Sylvestry, and an undercover policeman posing as a hit man. The m e e tin g between Garner, Sylvestry, and the undercover officer occurred on November 3, 2 0 0 7 . At the meeting, Garner offered the undercover officer $1,000.00 to compensate him fo r the murders and assault, but the officer told Garner that amount was insufficient. Garner a n d Sylvestry went to a body shop to collect more money.5 Once at the body shop, Garner e x ite d the vehicle, leaving Sylvestry inside. Garner returned to the vehicle, and Garner and

Garret was married to Sharmon Daniels. Denise Williams, daughter of Fred, was married to Tim Williams. Buddy Williams represented both Tim Williams and Sharmon Daniels in their respective divorce proceedings against Denise and Garret, brother and sister and children of Fred. Fred and Garret own and operate a body shop, Daniels Paint and Body, but the testimony at the hearing did not specify which body shop Garner and Sylvestry went to when they retrieved the additional money. 6
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Sylvestry returned to meet the undercover policeman; Garner gave the policeman $2,000.00 a d d itio n a l dollars. Officer Mendiola, the undercover policeman, surreptitiously recorded his c o n v e rs a tio n s with Garner. Chief Finer also testified that, as of January 30, 2008, the date of the hearing, his o ffic e did not have any credible information linking Fred and Garret to the hit; Garner had re fu s e d to divulge the parties who requested the hit to the undercover officer and Sylvestry. Chief Finer also testified that "there's not enough strong evidence to build a case. If the e v id e n c e was there, they would have been charged." (Doc. # 1-2 23.) The Hartford Police d id not undertake any investigation between the November set-up and the January 30, 2008, h e a rin g . B. Subsequent Hartford Police Department Investigation and Statement of Carl Sylvestry The Hartford Police Department re-opened their investigation after their November e ffo rts became public at the Daniels v. Daniels hearing. Chief Finer and Lieutenant Gary H u g h e s ("Lieutenant Hughes") interviewed Sylvestry on January 31, 2008, the day after the h e a rin g . Sylvestry's statement in the interview added details about what happened while he a n d Garner were at the body shop retrieving the additional money. Sylvestry claimed that w h e n they pulled up they SYLVESTER:6 H U G H ES: . . . spoke to the fellow Which fellow?

Sylvestry's name is misspelled in the transcript of this statement to the Hartford Police Department. 7

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SYLVESTER:

H U G H ES: SY LV ESTER: H U G H ES: SY LV ESTER: *** H U G H ES: SY LV ESTER: H U G H ES: SY LV ESTER:

It was the husband that they were going through a divorce, and h is father sat in the pickup truck. . . . Drew [Garner] and the h u s b a n d spoke a little bit then they went over to the father . . . a n d they talked. And Drew eventually--they discussed what they had to discuss. The guy spoke to me briefly that he wanted to do it, b u t the heat was on him at that very particular time. And he g a v e Drew some money and I believe he gave him--he gave h im -- I believe Drew had two thousand dollars of his money. You saw him give him that money? Yes Was it the husband or the father? The husband. Okay, you actually seen them-- Yeah. -- h a n d e d him the money? Yeah. I was in my pickup truck sitting behind my wheel and th e y were parked maybe two car lengths away, but parallel . . .

Hughes also told the officers that the hit was supposed to be against the subject's wife, a ju d g e , and a lawyer, and the assault was supposed to be against the subject's brother-in-law. C. Dale County Sheriff's Investigation and Statement of Drew Garner S h e riff Olsen arrested Garner on February 4, 2008. The Sheriff and his deputies took a videotaped statement from Garner two days later. Because Sheriff Olsen and Deputy Byrd c la im conduct and statements of Garner served as the main impetus for the arrest of Fred and G a rre t, some of Garner's testimony is worth setting out in full: [D e p u ty ] BYRD: GARNER: . . . start from the beginning and tell us how it happened? Yes, sir. With this particular--what we're talking about here, F re d Daniels and Garret Daniels approached me wanting to k n o w if I could do something for them. . . . They had contacted m e again and they said they were having issues with the exw ife , being Sharmon Daniels, then issues with Tim Williams, 8

BYRD: GARNER:

UNKNOWN: GARNER:

and issues with the Judge. I believe Quattlebaum is the Judge o v e r the case, and Buddy Williams who was the attorney for T im Williams and Sharmon Daniels. And they wanted to know if I would get things made--done for them. And I said, "Well-- Things being done is what specifically? Things being done as in a hit being put on those three in d iv id u a ls , and they wanted Tim Williams beat up is what their s tro n g indications were. Because I mean Fred approached me m a n y times on this and he walked up straight faced to me and h e 's come to me very bold, very brash, very just--"This is what I want done". Well, why don't you tell what they want done. That these three murders to happen.

Garner also stated that he told Fred and Garret that he knew someone who could take care o f the hit, and they said that he "would be well taken care of" if he could make the hit happen fo r them. Garner claimed that Garret gave him the $1,000.00 that he initially took to S y lv e s try for the hit. Garner also corroborated Sylvestry's account about the trip to get a d d itio n a l funds, in particular that Sylvestry and Garner went to the body shop to meet G a rre t, and that Garret gave the additional funds to Garner, who gave them in turn to S y lv e s try . He also corroborated Sylvestry's statement that Garret passed the money and that F re d remained in the truck. In fact, Garner verified the amounts and said that Garret handled b o th the transactions personally.7 He also responded to the question "So, what you're telling m e is that you willingly conspired to kill three people and mame [sic] another one for Fred a n d Garret Daniels?" with "Yes, sir."

Garner stated that Garret initially gave Sylvestry $2,000.00, but that Sylvestry skimmed $1,000.00 before giving it to the undercover officer, and that the second delivery was also for $2,000.00. He also verified the denomination--hundred dollar bills. 9

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Garner's statement also provided the motive for the alleged murders-for-hire: BYRD: GARNER: Right. Did they tell you why? Well, because they felt like they were being jilted in C o u rt, and that it was all one-sided against them, and if th e murders happened and these people went away, then th e could have I guess a new Judge sit in on it, a new a tto rn e y for Sharmon Daniels sit in on it. What about Tim Williams? Why did they just want to beat h im up? He is Denise Daniels's ex-husband and he used Buddy Williams fo r the divorce between Denise and Tim himself. So, he caused th e m an extreme amount of pain, from what I'm understanding.

BYRD: GARNER:

Garner also provided additional background information: Garner is a close associate o f Fred and Garret and would sometimes do investigative work, such as following people, d o odd jobs, or run errands for them. Garner lived rent free in a residence on the property o f Daniels Paint and Body, an automobile body shop owned and operated by Fred and Garret. He told Deputy Byrd that Fred and Garret wanted to eavesdrop on the phone calls of a lawyer a n d Tim Williams. He also claimed that about two years before the alleged murder-for-hire, F re d and Garret asked him to have a drug dealer plant drugs in Tim Williams' car so they c o u ld set him up, with the ultimate goal of wresting custody of Tim and Denise's children fro m him in favor of Denise. Garner also claimed that he went through with the set-up by c a llin g the Dothan Police and telling them about the existence and location of the planted d ru g s . He also testified that once previously Fred paid him two hundred dollars to poison T im Williams's "high-dollar cows," though Garner did not poison the cows. 2. Statement of Officer Mendiola O ffic e r Mendiola, the undercover officer who posed as the hit man, drafted a 10

statement on February 13, 2008, after the arrest of Fred and Garret. Officer Mendiola c o rro b o ra te d many of the facts offered by Garner and Sylvestry, though he was not able to lin k Garret and Fred to the alleged conspiracy, as he did not accompany them to get the a d d itio n a l funds. He did corroborate the outlines of the plan and the designated victims. D . Other Background Information Defendants devote eighteen of twenty-five pages of their statement of undisputed facts to "Plaintiffs' Personalities, Reputation, Motives & Patterns of Behavior." (Doc. # 51 p. 8.) Reproducing all of this information would be impractical here, and much of it is irrelevant, b u t a brief summary of the undisputed facts is in order. Deputy Byrd claimed that prior involvement of Fred and Garret in the legal system w a s consistent with the triple murder-for-hire and assault-for-hire scheme. For instance, S h e riff Olsen signed an "I/O report" regarding alleged harassment of Sharmon Daniels by F r e d and Garret. Various members of the Dale County Sheriff's Department had prior k n o w le d g e of Garner at the time of these events. Deputy Byrd thought it unlikely that Garner h a d ready access to much cash, saying "Drew Garner didn't have $3,000.00 laying around." Judge Quattlebaum was the presiding judge in several cases involving members of the D a n ie ls family, including two divorce cases, Williams v. Williams, and Daniels v. Daniels. Judge Quattlebaum took child custody from a member of the Daniels family in each of these cases. Judge Quattlebaum granted Tim Williams, Denise's ex-husband, full custody,

re q u ire d Denise to attend anger management classes, held her in contempt, and ordered her to pay $7,500.00 in attorney's fees. Judge Quattlebaum also entered findings of harassment, 11

threats, and intimidation of Sharmon by Garret in Daniels v. Daniels. Judge Quattlebaum a ls o entered a Temporary Restraining Order against Fred and Garret, which prohibited them f r o m harassing Sharmon Daniels, among others. Fred and Garret sought recusal of Judge Q u a ttle b a u m on various occasions. Judge Quattlebaum issued protection orders against Fred a n d Garret related to an ongoing dispute between them and owners of neighboring property. C. Conditions at the Dale County Detention Facility F re d and Garret were incarcerated at the Dale County Detention Facility for fifty-eight a n d sixty-nine days. Fred and Garret make multifarious complaints about the jail. Many e x a m p le s follow. Fred and Garret underwent strip searches in front of one another. Corrections officers w o u ld taunt prisoners with sexual comments about the prisoners' wives or girlfriends. Garret c la im s corrections officers ignored his complaints about a cracked tooth and neck problems. Both men claim mail from their attorneys was opened outside their presence, simply marking th e mail "opened but not read." Fred was tortured by the sound of TV, which was left on in the cell block from 5:30 a .m . to 10:30 p.m. Fred's ears still hurt from listening to the TV and trying to plug his ears w ith toilet tissue. Fred once asked for ear plugs and was never given any. Fred claims he w e n t for as many as six days without a shower. There were sometimes as many as twentyfiv e inmates in the shower at once. The showers went up to three weeks between cleanings. Garret was denied adequate access to fingernail clippers and sometimes ran out of toilet paper 12

There were no sheets or linens in the cells, except for a blanket that was four feet by s ix feet. There was a vinyl mattress in Fred's cell approximately one inch thick, but there was n o pillow. Garret was made to sleep on a mattress other inmates slept on previously. Garret c la im s that his cell was alternately uncomfortably hot and insufferably cold. Fred was cold w h ile in the cell. The toilet in Fred's cell overflowed while he was in the cell. The sewage fro m the toilet would collect under his bed and he had to use his shower shoe to squeegee it o u t of his cell under the cell door. A plumber worked on the problem at least three times, but s a id it was not reparable because a subterranean pipe that was inaccessible was broken. The ro o f was leaking water into the cell block. Inmates were in their cells twenty-plus hours per d a y and phone access was available only from 6 to 7 a.m., 11 a.m. to 1 p.m., and from 5 to 6 p.m. G a rre t suffered an injury to his neck and a staph infection. Fred claims his medicine fre q u e n tly was not given to him. Fred and Garret were both affected by overspray of pepper s p ra y when correction officers sprayed other inmates in other cells and once had to put his h e a d in the cell toilet to stop the burning. Both men lost over twenty pounds while in jail. The food was cold and out of date. The food was pathetic and included cold balogona and g r its . Fred and Garret wrote complaints about the situation in the jail. Garret claims he w ro te six complaints, but that only one was produced by defendants in discovery. Fred

c la im s to have submitted three complaints. Fred and Garret do not claim, and there are not fa c ts to show, that Sheriff Olsen knew about any of these conditions. 13

V. DISCUSSION T h e parties dispute the legal import of, and inferences to be drawn from, many facts in this case. The relevant underlying facts, however, are largely undisputed, having been re c o rd e d , transcribed, or contemporaneously memorialized. Upon careful consideration of th e undisputed facts, the Court finds: (1) that the state law claims are due to be dismissed by s tip u la tio n of the plaintiffs; (2) that any official capacity claims against Sheriff Olsen are due to be dismissed; (3) that defendants Sheriff Olsen and Deputy Byrd acted with probable c a u s e to believe Fred and Garret conspired to commit a triple-murder- and assault-for-hire a n d are therefore protected from suit by qualified immunity; and (4) that Sheriff Olsen is p ro te c te d from the claims that seek redress for conditions of pretrial confinement by the d o c trin e of qualified immunity and Plaintiffs have not made out a colorable claim against d e fe n d a n t Dale County. A. State Law Claims T h e Amended Complaint contains several state law claims: Count III for trespass, C o u n t IV for assault and battery, Count V for felonious injury, Counts VI and VII for slander p e r se, Count VIII for invasion of privacy, Count IX for intentional infliction of emotional d is tre s s , and Count X for outrage. Defendants argue in their Motion for Summary Judgment th a t state sovereign immunity bars these claims. Plaintiffs "have chosen not to advance [th e s e ] independent state law claims." (Doc. # 53.) Therefore, Counts III through X are due to be dismissed. B . Official Capacity Claims Against Sheriff Olsen 14

Plaintiffs purport in the Amended Complaint to sue Sheriff Olsen both in his official c a p a c ity as Sheriff of Dale County, Alabama, and in his individual capacity. To the extent th e re were claims against Sheriff Olsen in his official capacity asserted in the Amended C o m p la in t that Plaintiffs have not explicitly abandoned, Plaintiffs have abandoned them b e c a u se the response to the Motion for Summary Judgment failed to address these claims. S e e Walton ex rel. R.W. v. Montgomery County Bd. of Educ., 2005 WL 1217256, *4 (M.D. A la . May 20, 2005) (Albritton, J.) (citing Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 5 8 7 , 599 (11th Cir. 1995)). "[T]he onus is upon the parties to formulate arguments; grounds a lle g e d in the complaint but not relied upon in summary judgment are deemed abandoned." R e s o lu tio n Trust Corp., 43 F.3d at 599. Accordingly, as Plaintiffs do not rely upon these c la im s in summary judgment, they are deemed abandoned.8 Therefore, Summary Judgment is due to be granted as to the official capacity claims against Sheriff Olsen and those claims a re due to be dismissed. C. False Arrest, False Detention, and Malicious Prosecution Claims Against Sheriff Olsen and Deputy Byrd in Their Individual Capacities F re d and Garret complain that they suffered a false arrest in violation of the Fourth A m e n d m e n t. "Under the Fourth Amendment, an individual has a right to be free from `u n re a s o n a b le searches and seizures' . . . [and] an arrest is a seizure of the person." Skop v.

The Court also notes that it is well established that claims against a County Sheriff in Alabama are barred by the Eleventh Amendment. E.g., Harbert Inter., Inc. v. James, 1 5 7 F. 3d 1271, 1277-78 (11th Cir. 1998) (holding that state officials are entitled to the E le v e n th Amendment immunity of the state because the state is the real party in interest.).

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City of Atlanta, Ga., 485 F.3d 1130, 1137 (11th Cir. 2007); accord Case v. Eslinger, 555 F .3 d 1317, 1326 (11th Cir. 2009). The "reasonableness" of a seizure or arrest under the F o u rth Amendment turns on the presence or absence of probable cause. Id.; see also Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir. 2004) ("The existence of p ro b a b le cause at the time of arrest . . . constitutes an absolute bar to a section 1983 action fo r false arrest."); Durruthy v. Pastor, 351 F.3d 1080, 1088 (11th Cir. 2003); Redd v. City o f Enterprise, 140 F.3d 1378, 1382 (11th Cir. 1998)). Fred and Garret also advance a claim o f false imprisonment, which, because it is derivative of the false arrest claim, also depends o n an absence of probable cause. Case, 555 F.3d at 1330 ("Where a police officer lacks p ro b a b le cause to make an arrest, the arrestee has a claim under section 1983 for false im p ris o n m e n t based on a detention pursuant to that arrest.") (quoting Ortega, 85 F.3d at 1 5 2 7 ). Finally, Fred and Garret bring a claim of malicious prosecution, which arises from th e use of judicial processes in connection with the events that let to this lawsuit. The E le v e n th Circuit has identified malicious prosecution as a violation of the Fourth A m e n d m e n t and a viable constitutional tort cognizable under § 1983, and an essential e le m e n t of the claim is the absence of probable cause. Wood v. Kessler, 323 F.3d 872, 881 (1 1 th Cir. 2003); Uboh v. Reno, 141 F.3d 1000, 1002-04 (11th Cir. 1998); see also D e lc h a m p s , Inc. v. Bryant, 738 So. 2d 824, 831-32 (Ala. 1999). Thus, the false arrest, false im p ris o n m e n t, and malicious prosecution claims share one common element: they all require p ro o f of the absence of probable cause. In support of their Motion for Summary Judgment, Sheriff Olsen and Deputy Byrd 16

contend that Plaintiffs have failed to present evidence of the lack-of-probable-cause element o f each of these claims, an element on which Plaintiffs bear the ultimate burden of p e rs u a s io n .9 More specifically, as to these claims against them in their individual capacities, S h e riff Olsen assert that they are entitled to the protection of qualified immunity. 1 . Qualified Immunity, Probable Cause, and Arguable Probable Cause Q u a lifie d immunity shields a Section 1983 defendant from liability for harms arising fro m discretionary acts, as long as the discretionary acts do not violate "clearly established fe d e ra l statutory or constitutional rights of which a reasonable person would have known." Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow, 457 U.S. at 818); Case, 555 F.3d a t 1327; Draper v. Reynolds, 369 F.3d 1270, 1275 (11th Cir. 2004). An officer may raise this s h ie ld through a motion for summary judgment on the ground that he is entitled to qualified im m u n ity . Shaw v. Coosa County Comm'n, 434 F. Supp. 2d 1179, 1190 (M.D. Ala. 2008) (F u lle r, C.J.) (quoting Crosby v. Monrow County, 394 F. 3d 1328, 1332 (11th Cir. 2004)).

A plaintiff in an action under § 1983 asserting a claim for unlawful arrest bears th e burden at trial of showing an absence of probable cause. Rankin, 133 F.3d at 1436; Evans v. Hightower, 117 F.3d 1318, 1320 (11th Cir. 1997) ("In order to establish a Fourth A m e n d m e n t violation, [plaintiff] must demonstrate that a seizure occurred and that it was u n re a s o n a b le ." ); Shortz v. City of Montgomery, 267 F. Supp. 2d 1124, 1127 (M.D. Ala. 2 0 0 3 ) (Thompson, J.); see also Rivas v. Freeman, 940 F.2d 1491, 1496 (11th Cir. 1991) (" T o successfully litigate a lawsuit for deprivation of constitutional rights under 42 U .S .C . section 1983, a plaintiff must show violation of a constitutionally protected liberty o r property interest and deliberate indifference to constitutional rights."). The allocation o f this burden is not different at the summary-judgment stage. See, e.g., Fitzpatrick v. City o f Atlanta, 2 F. 3d 1112, 1115-17 (11th Cir. 1993). 17

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Sheriff Olsen and Deputy Byrd argue in their Motion for Summary Judgment that they are e n title d to qualified immunity. To be eligible for qualified immunity, the official must first establish that he was p e rfo rm in g a "discretionary function" at the time the alleged violation of federal law o c c u rre d . Crosby, 394 F. 3d at 1332; Shaw, 434 F. Supp. 2d at 1190. It is "not disputed that th e Defendants Olsen and Byrd acted within the scope of their discretionary authority when th e wrongful acts occurred." (Doc. # 53 p. 23.) Consequently, Fred and Garret bear the b u rd e n of demonstrating that Deputy Byrd and Sheriff Olsen are not entitled to qualified im m u n ity . Crosby, 394 F.3d at 1332; Shaw, 434 F. Supp. 2d at 1190. In order to satisfy this b u rd e n , Fred and Garret must show two things: (1) that the defendants committed a c o n s titu tio n a l violation and (2) that the constitutional right the defendants violated was " c le a rly established." Crosby, 394 F.3d at 1332. In the context of qualified immunity cases that turn on the presence or absence of p ro b a b le cause, an official has not committed a clearly established constitutional violation if either actual or arguable probable cause existed. Lee v. Ferraro, 284 F.3d 1188, 1195 (1 1 th Cir. 2002). In other words, qualified immunity protects Sheriff Olsen and Deputy Byrd if either (1) actual probable cause existed, or (2) arguable probable cause existed. Because F r e d and Garret bear the burden of proving qualified immunity does not apply, they must p ro v e both that actual probable cause did not exist, and that arguable probable cause did not e x is t. Rankin, 133 F.3d at 1436; Evans v. Hightower, 117 F.3d 1318, 1320 (11th Cir. 1997); F itz p a tr ic k v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir. 1993); Shortz v. City of 18

Montgomery, 267 F. Supp. 2d 1124, 1127 (M.D. Ala. 2003) (Thompson, J.). "Probable cause to arrest exists when law enforcement officials have facts and c irc u m s ta n c e s within their knowledge sufficient to warrant a reasonable belief that the s u s p e c t had committed or was committing a crime." Case, 555 F.3d at 1327 (citing United S ta te s v. Gonzalez, 969 F.2d 999, 1002 (11th Cir. 1992)). "[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such a c tiv ity ." Id. (citing Illinois v. Gates, 462 U.S. 213, 245 n.13 (1983)) (emphasis added). " P ro b a b le cause does not require overwhelmingly convincing evidence, but only `reasonably tru stw o rth y information.'" Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996) (quoting M a rx v. Gumbinner, 905 F.2d 1503, 1506 (11th Cir. 1990)). Probable cause must be a s s e s se d "not with clinical detachment but with a common sense view to the realities of n o rm a l life." Wilson v. Attaway, 757 F.2d 1227, 1235 (11th Cir. 1985). One particular a p p lic a tio n of this commonsense view is that a reviewing court may "examine the collective k n o w le d g e of law enforcement officers if they maintained at least a minimal level of c o m m u n ic a tio n during their investigation." United States v. Willia, 759 F.2d 1486, 1494 (1 1 th Cir. 1985). The probable cause determination is an objective one. Lee, 284 F.3d at 1188; Rankin v . Evans, 133 F.3d 1425, 1433 (11th Cir. 1998) ("This Circuit has concluded that the s ta n d a rd for determining the existence of probable cause is the same under both Florida and fe d e ra l law--whether `a reasonable man would have believed [probable cause existed] had h e known all of the facts known by the officer.'"); see also Whren v. United States, 517 U.S. 19

806, 813 (1996) ("Subjective intentions play no role in ordinary, probable-cause Fourth A m e n d m e n t analysis."). "This inquiry, it is vital to note, must be undertaken in light of the s p e c ific context of the case, not as a broad general proposition . . . ." Saucier, 533 U.S. at 201. A s explained above, an officer need only have arguable probable cause, not actual p ro b a b le cause, in order to qualify for immunity from a Fourth Amendment claim. See M o n to u te v. Carr, 114 F.3d 181, 184 (11th Cir. 1997). "Arguable probable cause exists `w h e re reasonable officers in the same circumstances and possessing the same knowledge a s the Defendant could have believed that probable cause existed to arrest.' " Lee, 284 F.3d a t 1195. Qualified immunity thereby protects officers who "reasonably but mistakenly c o n c lu d e that probable cause is present." Montoute, 114 F.3d at 184 (quotation marks and c ita tio n omitted). "Thus, the qualified immunity standard is broad enough to cover some m ista k e n judgment, and it shields from liability all but the plainly incompetent or those who k n o w in g ly violate the law." Id. (quotation marks and citation omitted). 2. Analysis F re d and Garret assert three closely related claims, which arise from various facets of th e ir arrest and detention by Defendants. The claim for false arrest is a colloquially named c la im for unreasonable seizure in violation of the Fourth Amendment to the Constitution of th e United States, as applied to the states via the Fourteenth Amendment. Skop, 485 F.3d at 1 1 3 7 ; Case, 555 F.3d at 1326. A seizure is unreasonable only if carried out in the absence o f probable cause. Id. The false imprisonment claim is founded on the Fourteenth 20

Amendment protection against deprivation of liberty without due process of law. Courts h a v e held that incarceration subsequent to arrest is a deprivation of liberty without due p ro c e s s of law when the arrest was made in the absence of probable cause. Case, 555 F.3d a t 1330. Similarly, the constitutional claim for malicious prosecution under the Fourth A m e n d m e n t requires proof of, among other things, absence of probable cause. Wood, 323 F .3 d at 881 Because the existence or non-existence of probable cause to arrest Fred and G a rre t is a common element to these three claims, and because the parties focus on whether p ro b a b le cause existed, the Court takes up the issue of probable cause first. Because D e fe n d a n ts have asserted the defense of qualified immunity, their Motion is due to be g ra n te d if Plaintiffs fail to demonstrate both that actual probable cause did not exist and that a rg u a b le probable cause did not exist. After careful consideration of the voluminous e v id e n c e submitted in support of and in opposition to the motion for summary judgment and th e applicable authorities, the Court finds that Sheriff Olsen and Deputy Byrd had actual p ro b a b le cause to arrest, detain, and charge Fred and Garret. For purposes of the instant motion, the issue is whether the defendants had probable c a u s e to believe Fred and Garret committed a violation os Alabama Code § 13A-4-3, which makes criminal conspiracies illegal in the State of Alabama.1 0 Thus, Plaintiffs must show
10

Section 13A-4-3 provides in part:

(a) A person is guilty of criminal conspiracy if, with the intent that conduct constituting an offense be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one or more of such persons does an overt act to effect an objective of the agreement. 21

that Sheriff Olsen and Deputy Byrd lacked actual probable cause and arguable probable c a u s e to believe (1) Fred and Garrett harbored the specific intent that the alleged targets of th e murder and assault for hire be murdered and assaulted; (2) Fred and Garrett agreed with G a rn e r or another co-conspirator (or among themselves) that the murders and assault be c a rrie d out; and (3) there was an overt act taken by one of the conspirators in furtherance of th e conspiracy. Ala. Code § 13A-4-3; Greer v. State, 563 S. 2d 39, 40 (Ala. Crim. App. 1 9 9 0 ). Or alternately, the question for purposes of this Motion is whether Sheriff Olsen and D e p u ty Byrd had probable cause to believe these elements were satisfied. Sheriff Olsen and Deputy Byrd claim they thought probable cause existed to arrest F r e d and Garret based on several categories of information. First among them is the file c o m p ile d by the Hartford Police Department. The Hartford Police, led by Chief Finer, c o n d u c te d an investigation into the alleged murder and assault-for-hire conspiracy in late 2 0 0 7 . Chief Finer initiated that investigation when Sylvestry approached one of his officers w ith information that Garner had solicited his participation in a triple murder and assault for

(b) If a person knows or should know that one with whom he agrees has in turn agreed or will agree with another to effect the same criminal objective, he shall be deemed to have agreed with such other person, whether or not he knows the other's identity. (c) A person is not liable under this section if, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, he gave a timely and adequate warning to law enforcement authorities or made a substantial effort to prevent the enforcement of the criminal conduct contemplated by the conspiracy. Renunciation by one conspirator, however, does not affect the liability of another conspirator who does not join in the abandonment of the conspiratorial objective. The burden of injecting the issue of renunciation is on the defendant, but this does not shift the burden of proof. 22

hire. In response, the Hartford Police orchestrated an undercover operation to gather in fo rm a tio n . Part of that operation involved having an undercover officer (Officer Mendiola) p o s e as a hit man from New York who Sylvestry was to present to Garner as the man for his jo b . This operation in fact occurred, and Officer Mendiola surreptitiously recorded his c o n v e rs a tio n s with Garner. Garner passed $3,000.00 in $100.00 bills to Mendiola that night a s a down payment on the hits. All of this information was in the possession of Deputy Byrd a n d Sheriff Olsen at the time of the arrest, detention, and prosecution of arrest warrant for F re d and Garret Daniels. This information provided probable cause that a conspiracy in v o lv in g Garner existed, but, based on this information alone, law enforcement lacked p ro b a b le cause to believe Fred and Garret were involved. Plaintiffs thus make much of Chief Finer's statement at the Daniels v. Daniels hearing th a t, as of that date, his office did not have any credible information linking Fred and Garret to the conspiracy. However, that connection was later established by a statement Sylvestry m a d e to the Hartford Police on January 31, 2008. In that interview, which was prior to the a rre s t of Fred and Garret but after the hearing, Sylvestry testified that he saw "the husband a n d they were going through a divorce" (rather than "the father") give Garner the money that w a s then given to Officer Mendiola as a down payment on the hit. He also stated that he a c tu a lly saw "the husband" hand Garner the money while "the father" sat in a pickup truck. Sylvestry also stated that he was able to clearly see both men and that Garner spoke to both m e n . Plaintiffs question whether the contents of the Sylvestry interview were known to S h e riff Olsen and Deputy Byrd at the time of the arrest. But taking a commonsense view of 23

the situation, and in light of the communication between the Hartford Police and the Dale C o u n ty Sheriff's office throughout the prosecution of this case, the Court is free to, and will, e x a m in e the collective knowledge of law enforcement officers. Willia, 759 F.2d at 1494 (h o ld in g that courts may examine the collective knowledge of law enforcement officers when th e re was at least minimal communication between them); Wilson, 757 F.2d at 1235 (re q u irin g courts to take a commonsense view of probable cause determinations). In addition to the Hartford Police Department file, Defendants rely heavily on the s ta te m e n t of Garner to support probable cause, particularly with respect to establishing a link b e tw e e n Fred and Garret and the murder and assault for hire conspiracy. Sheriff Olsen a rre s te d Garner on February 4, 2008, and took a videotaped statement two days later. In the c o urse of that statement, Garner stated directly: "Fred Daniels and Garret Daniels approached m e wanting to know if I could do something for them . . . as in a hit being put on [Sharmon D a n ie ls , Buddy Williams, and Judge Quattlebaum]." This testimony corroborates that of S y lv e s try . Garner also responded affirmatively to the question: "So, what you're telling me is that you willingly conspired to kill three people and mame [sic] another one for Fred and G a rre t Daniels." These statements alone are sufficient to establish probable cause to arrest th e Daniels men. See Craig v. Sincletary, 127 F.3d 1030, 1042 (11th Cir. 1997) (en banc) (" F o r the past forty years, an unbroken stream of precedent in this circuit has established that th e uncorroborated testimony of a co-conspirator or accomplice is sufficient to prove guilt b e y o n d a reasonable doubt. . . . It would be anomalous for us to hold that even though a c o d e fe n d a n t's uncorroborated testimony can prove guilt beyond a reasonable doubt, the 24

confession of a co-defendant that he and the suspect committed the crime is insufficient to e s ta b lis h probable cause.") F re d and Garret vigorously contest the trustworthiness of Garner's statement, arguing th a t what Garner says is of dubious value and therefore cannot be used to support probable c a u s e . In determining whether an informant's tip rises to the level of probable cause, a court m u s t assess the totality of the circumstances. Ortega, 85 F.3d at 1525. The court should c o n s id e r the relevance of factors such as corroboration of the tip through independent police w o rk , whether the informant has made a statement against his penal interest, whether the in fo rm a n t had personal knowledge, and whether there is a history between the informant and th e police department that supports his reliability. Id. (citations omitted). Garner's statement w a s sufficiently reliable to support probable cause. First, open and unequivocal admission o f his involvement in a murder-for-hire conspiracy was directly adverse to Garner's penal in te re s t. Second, the facts he relayed were corroborated by statements Sylvestry made in the c o u rs e of the Hartford Police Department investigation about the "husband" and "father" coc o n s p ira to rs . Third, Garner, as a co-conspirator of Fred and Garret, had personal knowledge o f the facts he shared with law enforcement. Finally, while Fred and Garret point to n u m e ro u s uncorroborated assertions of fact in Garner's statement, the Eleventh Circuit has h e ld that even an uncorroborated statement of a co-conspirator can suffice to establish p ro b a b le cause, so long as the confession is not "outlandish on its face." Sincletary, 127 F.3d a t 1042 (explaining "outlandish on its face" by example: "the confession of a mental patient th a t he and the suspect, aided by an army of little green men, committed the crime clearly 25

would not pass muster."). In other words, Garner's statement was "reasonably trustworthy in fo rm a tio n ." Ortega, 85 F.3d at 1525. Supporting the claims of Sylvestry and Garner with respect to the presence of the D a n ie ls men at the meeting with the undercover officer and their statements that Garret was th e source of the funds exchanged at that meeting, was the information from several quarters a b o u t Fred and Garret's motive and the circumstances that linked the alleged victims to Fred a n d Garret. First, Garner detailed Fred and Garret's motives in his statement to Sheriff Olsen o n February 6, 2008. He stated that the Daniels men "felt they were being jilted in court, and th a t it was all one-sided against them, and if the murders happened and these people went a w a y , then they could have I guess a new Judge sit in on it, a new attorney for Sharmon D a n ie ls sit in on it." He also stated that they wanted Tim Williams beat up because he had c a u s e d pain to Fred's daughter (Garret's sister) Sharmon when he (Tim Williams) and S h a rm o n divorced. Garner also provided details of an ongoing effort by the Daniels men to h a ra s s Tim Williams by, among other things, framing him for possession of illegal drugs and p o is o n in g his livestock. Sheriff Olsen also knew of prior harassment of Sharmon by the D a n ie ls men. Sheriff Olsen knew the Garret men were connected in a unique way with the a lle g e d victims. Sheriff Olsen also knew the reputation of the Daniels men in the community a n d thought the alleged murder for hire conspiracy was consistent with their past behavior. Consideration of the Daniels' reputation by Sheriff Olsen is a commonsense approach to u n d e rs ta n d in g how probable cause determinations can be made in rural Alabama counties. S e e United States v. Harris, 403 U.S. 573, 583 (1971) (holding that a law enforcement 26

officer's knowledge of a suspect's reputation for engaging in criminal activity may properly b e considered by those assessing probable cause); United States v. Farese, 612 F.2d 1376, 1 3 7 9 n.5 (11th Cir. 1980) (same); Wilson, 757 F.2d at 1235 (directing courts to assess p ro b a b le cause "not with clinical detachment but with a common sense view to the realities o f normal life"). Fred and Garrett also argue that Sheriff Olsen and Deputy Byrd did not undertake a re a s o n a b le investigation. An arresting officer is required to conduct a reasonable

in v e s tig a tio n to establish probable cause. Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1 9 9 8 ) (citing Tillman, 886 F.2d at 321). However, based on the foregoing, including the in fo rm a tio n in the Hartford Police Department file, the Court finds that the investigation was in fact reasonable and managed to amass substantial evidence in support of probable cause. A d d itio n a lly , Fred and Garret bring attention to the winding down of the case against them, in c lu d in g statements and actions of the District Attorney. The focus particularly on the d is m is s a l of the charges. But the decision of the District Attorney to drop charges against th e m is of no import. When determining the validity of an arrest, "[t]hat a defendant is s u b s e q u e n tly acquitted or charges are dropped against the defendant is of no consequence . . . ." Marx, 905 F.2d at 1507; see also Shortz, 267 F. Supp. 2d at 1128-29 (plaintiff's re lia n c e on dismissal of charges to support contention that officers lacked probable cause to a rre s t him was misplaced; decision to dismiss charges did not mean that decision to arrest la c k e d legal basis). T h e foregoing undisputed facts establish that Sheriff Olsen and Deputy Byrd had 27

actual probable cause to arrest Fred and Garret and are entitled to qualified immunity. Even if the Court assumed, arguendo, that they (and the magistrate) erred in concluding that p ro b a b le cause existed to arrest Fred and Garret, Sheriff Olsen and Deputy Byrd nevertheless w o u ld be entitled to qualified immunity because they had arguable probable cause to believe F re d and Garret committed the crimes charged; their decision was reasonable, even if m ista k e n . See Hunter v. Bryant, 502 U.S. 224, 228-29 (1991) (citing Anderson, 483 U.S. at 6 4 1 ); Lee, 384 F.3d at 1195; see Crosby, 394 F.3d at 1332 The qualified immunity standard g iv e s ample room for mistaken judgments by protecting "all but the plainly incompetent of th o s e who knowingly violate the law." Id. The undisputed facts detailed above are "sufficient to warrant a reasonable belief" that F re d and Garret participated in the alleged conspiracy. See Case, 555 F.3d at 1327. Therefore, Sheriff Olsen and Deputy Byrd are shielded from suit by the doctrine of qualified im m u n ity and summary judgment is due to be entered in their favor with respect to the false a rre s t, false imprisonment, and malicious prosecution claims. Accordingly, those claims are d u e to be dismissed. C. Conditions of Confinement D e fe n d a n ts assert claims against Dale County and Sheriff Olsen pursuant to § 1983 b e c a u s e they claim the conditions of their pretrial confinement violate the Fourteenth A m e n d m e n t. The Due Process Clause of the Fourteenth Amendment protects pretrial d e ta in e e s . See Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). The Eleventh Circuit C o u rt of Appeals has held that "in regard to providing pretrial detainees with such basic 28

necessities as food, living space, and medical care the minimum standard allowed by the due p ro c e s s clause is the same as that allowed by the Eighth Amendment to convicted persons." B e lc h e r v. City of Foley, Ala., 30 F.3d 1390, 1396 (11th Cir. 1994) (quoting Hamm v. D e K a lb County, 774 F.2d 1567, 1574 (11th Cir. 1985)). The Eighth Amendment proscribes the infliction of cruel and unusual punishment. U .S . Const. amend. VIII. This prohibition extends beyond physically barbarous punishment a n d includes inhumane conditions of confinement, which is what Fred and Garret complain o f here. See Ort v. White, 813 F.2d 318, 321 (11th Cir. 1987). Fred and Garret direct their c o n d itio n s of confinement claims against an individual, Sheriff Olsen, and a municipality, D a le County. There are two essential components to an Eighth Amendment claim brought a g a in s t an individual: one objective, the other subjective. See Helling v. McKinney, 509 U.S. 2 5 , 35 (1993) (noting that, on remand, the plaintiff would have "to prove both the subjective a n d objective elements necessary to prove an Eighth Amendment violation"). First, the a lle g e d deprivation must be objectively serious. See Farmer v. Brennan, 511 U.S. 825, 834 (1 9 9 4 ). The second, subjective component of the analysis requires that the inmate caretaker m u s t have had a sufficiently culpable state of mind at the time of the alleged violation. Id. In prison-condition cases like this one, the required state of mind is "deliberate indifference" to inmate health or safety. See id. In defining deliberate indifference in this context, the S u p re m e Court has determined that "a prison official may be held liable under the Eighth A m e n d m e n t for denying humane conditions of confinement only if he knows that inmates fa c e a substantial risk of serious harm and disregards that risk by failing to take reasonable 29

measures to abate it." Id. at 847. A plaintiff must also prove that a Defendant's disregard of th e risk is more than negligent. Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004). The subjective component is different when conditions of confinement claims are d ire c te d at municipalities. See id. at 840-41. For municipalities such as Dale County, d e lib e ra te indifference must be measured under an objective approach that does not account fo r actual disregard of known risks. See id. at 841. The use of an objective standard is n e c e s s a ry because it is not possible for a municipality, an artificial entity, to have subjective in te n tio n s . See id. Under the objective approach, the inquiry is whether there were substantial risk s present which were "so obvious" that the municipality "can reasonably be said to have b e e n deliberately indifferent to the need." See City of Canton v. Harris, 489 U.S. 378, 396 (1 9 8 9 ). A . Sheriff Olsen F re d and Garret make numerous claims against Sheriff Olsen arising from the c o n d itio n s of detention at the Dale County Detention Facility. They erect their theory of lia b ility on a claim that Sheriff Olsen failed to adequately train the corrections officers at the ja il on numerous aspects of prisoner detention. To succeed on this claim, Fred and Garret m u s t to show that Sheriff Olsen knew that they or other similarly situated inmates faced a s u b s ta n tia l risk of serious harm because of inadequately trained jail personnel, but d is re g a rd e d that risk by failing to take reasonable measures to abate it. See Farmer, 511 U.S. a t 837. Fred and Garret must also show a causal connection between Sheriff Olsen's failure a n d the constitutional deprivation. See Belcher, 30 F.3d at 1396-97. 30

Sheriff Olsen's qualified immunity with respect to the wrongful arrest and detention o f the Daniels men was discussed fully above. A brief discussion with respect to his s u p e rv is io n of the jail is in order here. To be eligible for qualified immunity, a defendant m u s t first demonstrate that he was a public official acting within the scope of his d is c re tio n a ry authority. See Rich v. Dollar, 841 F.2d 1558, 1563-64 (11th Cir. 1988). Plaintiffs concede that Sheriff Olsen was acting within the scope of his discretionary a u th o rity during times relevant to the allegedly wrongful arrest and detention, but it is not c le a r they concede the point for purposes of Sheriff Olsen's supervision of the Dale County D e te n tio n Facility. However, courts have uniformly held that supervision of a jail and tra in in g of corrections of officers is an activity within the discretionary authority of a County S h e riff in Alabama. See Shaw, 434 F. Supp. 2d at 1179 (" It is clear that setting policies and p ro c e d u re s regarding . . . training for jail staff, and other policies relating to the jail a d m in is tra tio n challenged in this lawsuit were squarely within [defendant's] job re s p o n s ib ilitie s as Sheriff of Coosa County."); Vinson, 10 F. Supp. 2d at 1297-98; see also S la u g h te r v. Dooly County, No. 5:06-CV-143, 2007 WL 2908648 *14 (M.D. Ga. Sept. 28, 2 0 0 7 ) (holding that under Georgia law "enactment of jail policies and the training and s u p e rv is io n of employees are clearly discretionary acts."); Adams v. Franklin, 111 F. Supp. 2 d 1255, 1267 (M.D. Ala. 2000) (DeMent, J.) (holding that deputy sheriffs, as alter-egos of th e Sheriff, were acting within the scope of their discretionary authority when they made d e c is io n s regarding incarceration, including whether and how to administer medical care). Thus, Fred and Garret bear the burden of demonstrating: "(1) that the defendant has 31

committed a constitutional violation and (2) that the constitutional right the defendant v io la te d was `clearly established' at the time he did it." Crosby v. Monroe County, 394 F.3d 1 3 2 8 , 1332 (11th Cir. 2004). Plaintiffs have the burden of demonstrating that Sheriff Olsen's failure to train jail p e rs o n n e l amounted to a violation of clearly established law. See Jordan v. Doe, 38 F.3d 1 5 5 9 , 1565 (11th Cir. 1994). If they fail to meet this burden, qualified immunity shields S h e riff Olsen from suit. Fred and Garret rely on one case, City of Canton v. Harris, 489 U.S. 3 7 8 (1989), which stands for the proposition that "`failure to train' can be the basis for lia b ility under § 1983" in certain circumstances. Id. 387. The definition of deliberate in d iffe re n c e for purposes of claims such as those raised in this lawsuit has been clarified th ro u g h a series of lawsuits. In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court e s ta b lis h e d that deliberate indifference was the applicable standard. McElligott v. Foley, 182 F .3 d 1248, 1254 (11th Cir. 1999). Nearly twenty years later, the Supreme Court further c la rifie d the meaning of "deliberate indifference" in Farmer v. Brennan. Id. The Supreme C o u rt held that a prison official cannot be found liable under the Eighth Amendment for d e n y in g an inmate humane conditions of confinement unless the official k n o w s of and disregards an excessive risk to inmate health or safety; the o ffic ia l must both be aware of facts from which the inference could be drawn th a t a substantial risk of serious harm exists, and he must also draw the in fe re n c e .

F a rm e r , 511 U.S. at 837. Thus, "deliberate indifference has three components: (1) subjective k n o w le d g e of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more 32

than mere negligence." McElligott, 182 F.3d at 1255. The Eleventh Circuit Court of Appeals h a s explained that summary judgment must be granted for the defendant official unless the p la in tiff presents sufficient evidence from which a reasonable jury could find that the official h a d subjective knowledge of the relevant risk and disregard of that risk by conduct that is m o re than mere negligence, but it has acknowledged that such evidence may be c irc u m s ta n tia l. See, e. g., McElligott, 182 F.3d at 1255; Campbell v. Sikes, 169 F.3d 1353, 1 3 6 4 (11th Cir. 1999). T h is standard sets a difficult burden for plaintiffs. Most critically, in order to survive a motion for summary judgment, they must present evidence that Sheriff Olsen had s u b je c tiv e knowledge of the risk that they would be subject to the conditions they complain o f,1 1 and that he ignored that risk, and did so by more than mere negligence. The record is b e re ft of information about Sheriff Olsen's subjective state of awareness regarding the prison c o n d itio n s they complain of. Fred and Garret argue that deliberate indifference is evidenced by the following: (1) th a t Defendants never trained jail corrections officers as to the policies and procedures a p p lic a b le to jailers, specifically regarding treatment of legal mail; (2) that inmates were ta z e d and sprayed with aerosol spray inside their cells; (3) that corrections officers used s e x u a lly charged language regarding inmates' girlfriends and wives; and (4) that basic

The Court assumes, without unnecessarily deciding, the dubious legal conclusion that the conditions Fred and Garret complain of constitute a "serious harm" for purposes of the deliberate indifference standard such that Sheriff Olsen's deliberate disregard of the risk that they would be subjected to those conditions would be unconstitutional. 33

11

provisions were not made for Fred and Garret's detention. They further allege that because S h e riff Olsen testified that each of these was a violation of jail policy, but they occurred, S h e riff Olsen must have failed to appropriately train the corrections officers, which failure to train evinces deliberate indifference. Fred and Garret's claims for deliberate indifference fail because the record is devoid o f facts that would allow a reasonable jury to conclude that Sheriff Olsen had subjective k n o w le d g e of the risk that they would be subject to the conditions they complain of. For e x a m p le , Fred and Garret present no evidence that Sheriff Olsen knew legal mail was being o p e n e d at the jail. The likewise fail to meet their burden with respect to his knowledge of ta z e r and pepper spray use against inmates in ways they claim were unconstitutional. S im ila rly , there are no facts in the record that suggest Sheriff Olsen knew corrections officers w e re taunting prisoners with sexual comments about their loved ones, and there is no in d ic a tio n from the undisputed facts that Sheriff Olsen knew about the other failings at the ja il, such as the leaking toilet. Without evidence of Sheriff Olsen's subjective knowledge of th e s e issues, Fred and Garret cannot meet their burden of showing that qualified immunity d o e s not apply--i.e. of showing that the conduct they complain of violated a clearly e s ta b lis h e d constitutional right.1 2 Thus, the Court finds that Sheriff Olsen is protected from s u it for the conditions of confinement at the Dale County Detention Facility by the doctrine

Because the Court has no information about Sheriff Olsen's subjective knowledge of the alleged unconstitutional conditions, the inquiry does not proceed to whether he ignored the risk by more than mere negligence. 34

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of qualified immunity.1 3 Defendants' Motion for Summary Judgment is therefore due to be g ra n te d with respect to all claims against Sheriff Olsen regarding conditions of confinement a t the Dale County Detention Facility and those claims are due to be dismissed. B. Dale County In the landmark case of Monell v. Department of Social Services, 436 U.S. 658 (1978), th e United States Supreme Court held that municipalities--a term which encompasses Dale C o u n ty -- a re subject to suits for damages under § 1983. In making this finding, the Court h e ld that municipalities are not entitled to Eleventh Amendment immunity or qualified im m u n ity . See Owen v. City of Independence, 445 U.S. 622 (1980). Qualifying its holding s o m e w h a t, the Supreme Court made clear that a county may not be held liable for a § 1983 v io la tio n unless the county has a policy or custom which caused the constitutional d e p riv a tio n : "it is when execution of a government's policy or custom, whether made by its la w m a k e rs or by those whose edicts or acts may fairly be said to represent official policy, in flic ts the injury that the government as an entity is responsible under § 1983." Monell, 436 U .S . at 694. Accordingly, for § 1983 liability to attach in this case, there must be a causal c o n n e c tio n between the county's responsibilities and the injuries complained of. See id. at 6 9 0 . The causation requirement is met if the municipal policy is the moving force of the c o n s titu tio n a l violation. See id. at 694. The Eleventh Circuit, sitting en banc, applied this s ta n d a rd in the context of prison condition litigation in Turquitt v. Jefferson County, Ala., 137

The Court notes that the qualified immunity inquiry is separate and apart from a consideration of the merits of Plaintiff's claims. 35

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F.3d 1285, 1291 (11th Cir. 1998). There, the Circuit held that a county in Alabama "cannot b e liable for the harms that befall jail inmates due to improper operation of the jail or n e g lig e n t supervision of its inmates because the County has no responsibility in that area." S e e also Ex parte Sumpter County, 953 So. 2d 1235, 1239 (Ala. 2006) (holding that a county in Alabama cannot be liable for administration or operation of county jails because the local s h e riff bears that responsibility under Alabama law). Thus, municipalities' liability in this a re a is limited to constitutional deprivations that result from underfunding, and courts must c a re fu lly distinguish between claims that assert failures of adm