Williams v. City of Abbeville et al
MEMORANDUM OPINION AND ORDER GRANTING Officer Ingram's 23 MOTION for Summary Judgment, as further set out in order. Signed by Chief Judge William Keith Watkins on 5/2/14. (djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
RANDY V. WILLIAMS,
TIM INGRAM, in his individual
CASE NO. 1:12-CV-263-WKW
MEMORANDUM OPINION AND ORDER
Plaintiff Randy V. Williams brings this action against Officer Tim Ingram of
the Abbeville Police Department on claims of malicious prosecution under 42
U.S.C. § 1983 for a Fourth Amendment violation and under state law. Before the
court is Officer Ingram’s motion for summary judgment. (Doc. # 23.) The motion
has been fully briefed. (Docs. # 24, 28, 31.) Based upon careful consideration of
the arguments of counsel, the relevant law, and the evidence, the court finds that
the motion is due to be granted.
I. JURISDICTION AND VENUE
Subject matter jurisdiction is proper pursuant to 28 U.S.C. §§ 1331, 1441(a),
and 1367. Personal jurisdiction and venue and are not contested.
II. STANDARD OF REVIEW
To succeed on summary judgment, the movant must demonstrate “that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The court must view the evidence and
the inferences from that evidence in the light most favorable to the nonmovant.
Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial
responsibility of informing the district court of the basis for its motion.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
This responsibility includes
identifying the portions of the record illustrating the absence of a genuine dispute
of material fact. Id.; Fed. R. Civ. P. 56(c)(1)(A). Or, the movant can assert,
without citing the record, that the nonmoving party “cannot produce admissible
evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B). If the movant
meets its burden, the burden shifts to the nonmoving party to establish – with
evidence beyond the pleadings – that a genuine dispute material to each of its
claims for relief exists. Celotex, 477 U.S. at 324. A genuine dispute of material
fact exists when the nonmoving party produces evidence allowing a reasonable fact
finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276
F.3d 1275, 1279 (11th Cir. 2001).
The evidence, viewed in the light most favorable to Mr. Williams,
establishes the following.1 By September 2007, Officer Ingram of the Abbeville
Police Department had received information from several informants that Mr.
Williams was selling drugs in the Abbeville area. (Ingram’s Dep., at 54.) This
information led Officer Ingram to conclude that Mr. Williams was a “kingpin drug
dealer.” (Ingram’s Dep., at 93 (“I believe Mr. Williams to be a kingpin drug
dealer.”).) As a result, Officer Ingram decided to set up a controlled narcotics buy
using an informant who was an acquaintance of Mr. Williams. (Ingram’s Dep.,
at 54, 57.) Officer Ingram had used this informant to make controlled buys in the
past, and the informant had been reliable “in those prior cases.” (Ingram’s Dep.,
at 99; see also Ingram’s Decl. ¶ 4 (“I have always found [the informant] to be a
The controlled buy was to take place on Friday, September 7, 2007. On that
date, Officer Ingram gave the informant a $20 bill with recorded serial numbers
and a cellular telephone to call Officer Ingram after the completion of the drug
The evidence includes declarations from Officer Ingram and the informant, excerpts
from Officer Ingram’s and Mr. Williams’s deposition testimonies, Mr. Williams’s answers to
Officer Ingram’s request for admissions, the informant agreement between the Abbeville Police
Department and the informant, the Alabama Uniform Incident/Offense Report, the criminal
complaint, arrest warrant, affidavit for search warrant, search warrant, indictment, and case
transaction. Instead of reporting a successful drug buy, however, on the following
Monday, September 10, the informant reported to Officer Ingram that Mr.
Williams had robbed him at gunpoint with a “black steel pistol” on September 7,
around 2:00 p.m., and had stolen the $20 bill and the phone. (Ingram’s Decl. ¶¶ 7–
14.) The informant relayed the details of the robbery to Officer Ingram. Officer
Ingram documented those details in an Alabama Uniform Incident/Offense Report
(“offense report”), and the informant signed the offense report to certify its truth.
(Ingram’s Decl. ¶ 18; Offense Report (Doc. # 24-4).) Officer Ingram also asked
the informant to accompany him to the scene of the alleged robbery to verify the
Based upon the informant’s narrative of the robbery events, Officer Ingram
signed a criminal complaint, charging Mr. Williams with robbery in the first
degree, in violation of § 13A-8-41 of the Alabama Code. See Ala. Code § 13A-841 (providing, in part, that “[a] person commits the crime of robbery in the first
degree if he violates Section 13A-8-43 and he . . . [is] armed with a deadly weapon
or dangerous instrument”). (Criminal Compl. (Doc. # 24-4).) Officer Ingram also
gave the magistrate a copy of the offense report to support probable cause.
(Ingram’s Decl. ¶ 20.)
Based upon this information, the magistrate issued a
warrant for Mr. Williams’s arrest on September 10. (Warrant (Doc. # 24-4).)
Additionally, on September 11, and on the basis of the informant’s statement,
Officer Ingram obtained a warrant to search Mr. Williams’s residence for the $20
bill, the cell phone, and “other contraband or controlled substances.” (Pl.’s Summ.
J. Br., Ex. 2 (Doc. # 28-3).)
That same day, Officer Ingram executed the arrest
and search warrants on Mr. Williams and his residence, but did not recover the $20
bill, the cell phone, or any contraband.
Upon his arrest, Mr. Williams was
transported to the city jail, where he remained for approximately a day-and-a-half
before being released on bond.
In March 2008, a Henry County district judge held a preliminary hearing at
which the informant testified and was subject to cross-examination by Mr.
Williams’s counsel. After the hearing, the district judge found probable cause for
Mr. Williams’s arrest, and his case was bound over to the grand jury.
September 2008, the grand jury of Henry County returned an indictment against
Mr. Williams for robbery in the first degree. For reasons not in the record, the
first-degree robbery charge against Mr. Williams was dismissed “on motion of
State” on February 24, 2010. (Pl.’s Summ. J. Br., Ex. 4 (Doc. # 28-5).)
Mr. Williams originally filed this action in the Circuit Court of Henry
County, Alabama, against the City of Abbeville and three officers, including
Officer Ingram. The Complaint alleged that Mr. Williams’s arrest and prosecution,
as well as the search of his home, violated his constitutional rights protected by
federal civil rights statutes, including 42 U.S.C. § 1983, and also violated state law.
Defendants removed the action to the United States District Court for the Middle
District of Alabama and filed a motion to dismiss. In response to the motion to
dismiss, Mr. Williams voluntarily dismissed all but his claims for malicious
prosecution under § 1983 and state law (i.e., Counts VI and VII). See Fed. R. Civ.
The ruling on the motion to dismiss then narrowed the
defendants from four to one, and it denied the motion as to the malicious
prosecution claims under § 1983 and state law against the remaining Defendant,
Officer Ingram, in his individual capacity.2 (See Order (Doc. # 16).)
Mr. Williams’s Theories of Malicious Prosecution
At the outset, it is helpful to set out the parameters of the malicious
prosecution claims. Two theories of malicious prosecution have arisen during the
course of this litigation, and both the federal- and state-law malicious prosecution
claims are based upon these twin theories.
First, there is the theory set out in the Complaint. The malicious prosecution
claims, under both federal and state law, allege that Officer Ingram initiated a
criminal prosecution3 against Mr. Williams by maliciously obtaining an arrest
The official-capacity claim was dismissed.
A § 1983 malicious prosecution claim requires a judicial proceeding, while a state-law
malicious prosecution claim requires a criminal prosecution. See Grider, 618 F.3d at 1256. That
distinction is not significant in this case because Officer Ingram does not contend that there is an
absence of evidence of a criminal prosecution or a judicial proceeding.
warrant based upon a fabricated sworn statement. The theory is that Officer
Ingram “coerced” the informant “into making a false statement against” Mr.
Williams in order to arrest him, search his home, and obtain a conviction on a
“trumped up” charge of first-degree robbery as a subterfuge to lock up an “alleged
kingpin drug pusher.” (Compl. ¶¶ 17–19.) This also is the theory upon which Mr.
Williams relied at the motion-to-dismiss stage. And he continues to assert at the
summary-judgment stage that Officer Ingram “coerced [the informant] into making
a false statement” and that Officer Ingram then used that statement to obtain an
arrest warrant, thereby initiating the criminal prosecution. (See Pl.’s Summ. J. Br.,
Second, Mr. Williams articulates for the first time in his summary judgment
briefing that the information obtained from the informant was insufficient to
establish probable cause because the informant was, among other things, a drug
addict with a criminal history. (Pl.’s Summ. J. Br., at 4, 6, 12–13.) This theory is
different from the Complaint’s theory that the false statement about the robbery
was the product of police coercion. There is some question whether this new
theory properly is before the court. See Am. Fed’n of State, Cnty. & Mun. Emps.
Council 79 v. Scott, 717 F.3d 851, 863 (11th Cir. 2013) (“A plaintiff may not
amend her complaint through argument in a brief opposing summary judgment.”).
However, Officer Ingram addresses the issue surrounding the reliability of the
informant in his summary judgment analysis of probable cause, and there is no
indication that Officer Ingram will suffer any prejudice from the court’s
consideration of the claim. Both theories will be addressed in this opinion.4
Officer Ingram, in his individual capacity, moves for summary judgment on
the § 1983 and state-law malicious prosecution claims on the merits and based
upon immunity doctrines. Mr. Williams argues against summary judgment as to
these claims.5 For the reasons that follow, Mr. Williams fails to raise a genuine
dispute of material fact that his arrest for first-degree robbery was not supported by
probable cause, an essential element of both his § 1983 and state-law malicious
To the extent that Mr. Williams alleges a third theory – that Officer Ingram is liable
under § 1983 for malicious prosecution because he knowingly falsified his testimony before the
grand jury (Pl.’s Summ. J. Br., at 11) – that claim is not in the Complaint, and, additionally, “a
grand jury witness has absolute immunity from any § 1983 claim based on the witness’
testimony.” Rehberg v. Paulk, 132 S. Ct. 1497, 1506 (2012).
Oddly, Mr. Williams also opposes summary judgment as to his § 1983 false arrest claim
that he previously voluntarily dismissed. (See Order, at 26 (Doc. # 16).) The § 1983 false arrest
claim is not addressed in this opinion because that claim is no longer part of this action, and it
cannot be resurrected in a brief opposing summary judgment. In Carter v. Gore, the Eleventh
Circuit succinctly explained the distinction, as relevant here, between a § 1983 false arrest and
malicious prosecution claim. See ___ F. App’x ____, No. 13–11629, 2014 WL 783151, at *2
(11th Cir. Feb. 28, 2014) (“The issuance of a warrant – even an invalid one as [plaintiff] alleges
was issued here – constitutes legal process, and thus, where an individual has been arrested
pursuant to a warrant, his claim is for malicious prosecution rather than false arrest.”). For
purposes of a § 1983 malicious prosecution, an officer who obtains an arrest warrant without
probable cause is “liable for all foreseeable injuries flowing from the officer’s initial act,
regardless of further involvement.” Id. (citing Whiting v. Traylor, 85 F.3d 581, 586 (11th Cir.
prosecution claims. Alternatively, Officer Ingram is entitled to qualified immunity
under § 1983 and state-agent immunity under Alabama law.
§ 1983 Malicious Prosecution Claim
The analysis of the § 1983 malicious prosecution claim proceeds in three
parts. The first part sets out the general principles of law governing § 1983
malicious prosecution claims and qualified immunity. The second part analyzes
Mr. Williams’s malicious prosecution theory that Officer Ingram made false
statements in support of the arrest warrant. The third part analyzes Mr. Williams’s
theory that the information obtained from the informant was unreliable and, thus,
insufficient to supply probable cause for Mr. Williams’s arrest.
The Elements of a Malicious Prosecution Claim
A § 1983 claim for malicious prosecution arises under the Fourth
Amendment. See Grider v. City of Auburn, Ala., 618 F.3d 1240, 1256 (11th Cir.
2010). The Eleventh Circuit has described a § 1983 malicious prosecution claim
as one “where the plaintiff, as part of the commencement of a criminal proceeding,
has been unlawfully and forcibly restrained in violation of the Fourth Amendment
and injuries, due to that seizure, follow as the prosecution goes ahead.” Whiting,
85 F.3d at 583. In Grider, the Eleventh Circuit set forth the claim’s elements:
To establish a § 1983 malicious prosecution claim, the plaintiff must
prove two things: (1) the elements of the common law tort of
malicious prosecution; and (2) a violation of his Fourth Amendment
right to be free from unreasonable seizures. As to the first prong, the
constituent elements of the common law tort of malicious prosecution
are: (1) a criminal prosecution instituted or continued by the present
defendant; (2) with malice and without probable cause; (3) that
terminated in the plaintiff accused’s favor; and (4) caused damage to
the plaintiff accused. . . .
As to the second prong, it is well established that an arrest without
probable cause is an unreasonable seizure that violates the Fourth
Amendment. Consequently, the existence of probable cause defeats a
§ 1983 malicious prosecution claim.
618 F.3d at 1256 (internal citations and emphasis omitted).
“For probable cause to exist, . . . an arrest must be objectively reasonable
based on the totality of the circumstances.” Wood v. Kesler, 323 F.3d 872, 882
(11th Cir. 2003) (analyzing a § 1983 malicious prosecution claim) (citation and
internal quotation marks omitted).
“This standard is met when the facts and
circumstances within the officer’s knowledge, of which he or she has reasonably
trustworthy information, would cause a prudent person to believe, under the
circumstances shown, that the suspect has committed, is committing, or is about to
commit an offense.” Id. (internal quotation marks omitted). “Although probable
cause requires more than suspicion, it does not require convincing proof, and need
not reach the [same] standard of conclusiveness and probability as the facts
necessary to support a conviction.” Id. (citation and internal quotation marks
omitted). Indeed, “[t]he Constitution does not guarantee that only the guilty will
be arrested. If it did, § 1983 would provide a cause of action for every defendant
acquitted – indeed, for every suspect released.” Baker v. McCollan, 443 U.S. 137,
The defense of qualified immunity involves a two-step inquiry. The first
inquiry is “whether the defendant government official was performing a
discretionary function” when the allegedly wrongful acts occurred. Madiwale v.
Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997). “Once the defendant establishes
that he was acting within his discretionary authority, the burden shifts to the
plaintiff to show that qualified immunity is not appropriate.” Lee v. Ferraro, 284
F.3d 1188, 1194 (11th Cir. 2002). This is the second inquiry and is itself a twopart test.
“[T]he plaintiff must . . . show that: (1) the defendant violated a
constitutional right, and (2) this right was clearly established at the time of the
alleged violation.” Townsend v. Jefferson Cnty, 601 F.3d 1152, 1157 (11th Cir.
2010) (internal citation omitted). For a right to be clearly established, “[t]he
contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Anderson v. Creighton, 483
U.S. 635, 640 (1987).
Moreover, in a Fourth Amendment malicious prosecution case, “to receive
qualified immunity, an officer need not have actual probable cause, but only
‘arguable’ probable cause.” Grider, 618 F.3d at 1257; see also id. at 1257 n.25
(noting that it applies “the same ‘arguable probable cause’ standard in the qualified
immunity context for § 1983 claims for both false arrest and malicious prosecution,
as both require a violation of the Fourth Amendment”). Arguable probable cause
exists where “under all of the facts and circumstances, an officer reasonably could
– not necessarily would – have believed that probable cause was present.” Crosby
v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir. 2004). Conversely, arguable
probable cause does not exist “where ‘a reasonably well-trained officer . . . would
have known that his affidavit failed to establish probable cause and that he should
not have applied for the warrant.’” Kelly v. Curtis, 21 F.3d 1544, 1553 (11th Cir.
1994) (quoting Malley v. Briggs, 475 U.S. 335, 345 (1986)). “[W]hat counts for
qualified immunity purposes relating to probable cause to arrest is the information
known to the defendant officers or officials at the time of their conduct, not the
facts known to the plaintiff then or those known to a court later.” Jones v. Cannon,
174 F.3d 1271, 1283 n.4 (11th Cir. 1999).
The Alleged False Statements Submitted in Support of the Arrest
Mr. Williams’s first malicious prosecution theory is that Officer Ingram
knowingly fabricated the statement he submitted to obtain the arrest warrant that
resulted in Mr. Williams’s seizure and started in motion the machinery of a
criminal prosecution. In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme
Court of the United States held that the Fourth Amendment is violated where an
officer, knowingly and intentionally or with reckless disregard for the truth,
submits a false sworn statement to secure a warrant and the statement is necessary
to the finding of probable cause. Id. at 155–56. “[W]hen the Fourth Amendment
demands a factual showing sufficient to comprise ‘probable cause,’ the obvious
assumption is that there will be a truthful showing.” Id. at 164. The statements
submitted in support of the warrant need not actually be true, but they must “be
‘truthful’ in the sense that the information put forth is believed or appropriately
accepted by the affiant as true.” Id. at 165. The Court reasoned that the Fourth
Amendment’s mandate that a “warrant not issue ‘but upon probable cause,
supported by Oath or affirmation,’ would be reduced to a nullity if a police officer
was able to use deliberately falsified allegations to demonstrate probable cause,
and, having misled the magistrate, then was able to remain confident that the ploy
was worthwhile.” Id. at 168 (citation and internal quotation marks omitted).
The Eleventh Circuit has applied Franks in § 1983 Fourth Amendment
malicious prosecution claims.6 See Kelly, 21 F.3d at 1554 (holding that in a § 1983
action alleging malicious prosecution under the Fourth Amendment, Franks
“prohibits an officer from making perjurious or recklessly false statements in
support of a warrant.” (citing Franks, 438 U.S. at 165–71)); Carter v. Gore, ___
Although Franks involved a search warrant, the Eleventh Circuit in Kelly applied its
rule in a case challenging an arrest warrant as improperly obtained. See 21 F.3d at 1554.
F. App’x ____, No. 13–11629, 2014 WL 783151, at *5 (11th Cir. Feb. 28, 2014)
(dismissing for failure to state a § 1983 malicious prosecution claim based on an
alleged violation of Franks because the plaintiff failed to “allege facts to plausibly
suggest that [the affiant-officer] did not believe or appropriately accept as true his
ultimate assertion that [the plaintiff] was guilty”). In Kelly, a police officer
submitted an affidavit for an arrest warrant against the § 1983 plaintiff for
possession of cocaine, notwithstanding that there was evidence that the officer
knew that the state crime lab had issued a report that the substance the plaintiff
possessed was not a controlled substance. See 21 F.3d at 1548. The Eleventh
Circuit held that the officer was not entitled to summary judgment on qualified
immunity grounds. The officer’s “affirmative misstatement violate[d] Franks”
because “the information she swore to in the affidavit was not ‘believed or
appropriately accepted by the affiant as true.’” Id. at 1555 (quoting Franks, 438
U.S. at 166).
The focal point for the Franks analysis is on Officer Ingram’s knowledge –
whether he actually knew that the statements he submitted in support of the arrest
warrant were false or whether he acted with reckless disregard for the statements’
truth. To satisfy his initial burden on summary judgment, Officer Ingram relies
upon his deposition testimony and declaration, as well as the informant’s
declaration. Namely, Officer Ingram provides testimony that he “never pressured
or coerced [the informant] to make a false statement against” Mr. Williams, that
the informant had been reliable in the past and on the day in question had relayed a
detailed narrative of the robbery, and that he “believed” the informant “when he
reported the robbery to” him. (Ingram’s Decl. ¶ 18 (Doc. # 24-4).) The informant
also declares that neither Officer Ingram nor anyone else “has ever pressured or
coerced [him] to make a false statement against [Mr.] Williams.” (Informant’s
Decl. ¶¶ 15–17 (Doc. # 24-3).) This evidence satisfies Officer Ingram’s summary
Although at the motion-to-dismiss stage Mr. Williams’s allegations of a
coerced, fabricated statement survived Rule 12(b)(6) review, at the summary
judgment stage Mr. Williams must do more than rely on allegations. Mr. Williams
must point to “evidence beyond the pleadings” that shows a genuine dispute of
material fact as to his § 1983 malicious prosecution claim. Celotex, 477 U.S.
at 324. He fails to do so for two primary reasons.
First, Mr. Williams vehemently denies that he robbed the informant, and he
insists that the informant is lying. (See Pl.’s Dep., at 100.) For purposes of the
Franks analysis, it can be assumed that the informant’s account of the robbery
actually was false and that no robbery occurred. On this record, that assumption
alone would not rise to the level of a Franks violation. See Franks, 438 U.S.
at 165 (Although statements in a warrant affidavit must be “truthful,” “truthful”
does not mean that “every fact recited in the warrant affidavit is necessarily
correct, for probable cause may be founded upon hearsay and upon information
received from informants”; rather, the statements must be “‘truthful’ in the sense
that the information put forth is believed or appropriately accepted by the affiant as
true.”); see also id. at 171 (“The deliberate falsity or reckless disregard whose
impeachment is permitted . . . is only that of the affiant, not of any
nongovernmental informant”); United States v. Johnson, 580 F.3d 666, 670 (7th
Cir. 2009) (To show a Franks violation, “[i]t is not enough to show that an
informant lied to the government officer, who then included those lies in the
Based upon the foregoing authority, Mr. Williams’s denial of the crime is
not evidence that Officer Ingram knew the informant’s account of the robbery was
false when he submitted those statements to the magistrate. Accordingly, even
accepting the premise that the informant lied to Officer Ingram, there must be
evidence from which to infer that Officer Ingram knew that the informant had lied
or that Officer Ingram acted with reckless disregard for the truth.
This brings the analysis to Mr. Williams’s second contention, which requires
close scrutiny of evidentiary rules.
Mr. Williams argues that his deposition
testimony contains evidence of knowing fabrication on Officer Ingram’s part. (See
generally Pl.’s Summ. J. Br., at 2, 5, 6, 9.) At his deposition, Mr. Williams
testified that the informant told him that he [the informant] had pending bad check
charges and that Officer Ingram “was on . . . him about what he needed to do in
order to get” the charges dismissed.
(Pl.’s Dep., at 96 (Doc. # 28-1).)
deposition continued as follows:
Did [the informant] tell you that he reported to Tim Ingram that
you had robbed him?
I don’t . . . recall h[im] telling me that exactly.
What do you recall him telling you?
I remember him telling me that . . . he had to do it or he was
going to get twenty years.
That he had to report you for robbery?
Yes. Or he’s going to get twenty years.
Did he explain how that worked?
He just said he was being threatened.
Did he say who was threatening him?
What did he say?
He said Tim Ingram.
(Pl.’s Dep., at 98–99.) Officer Ingram argues that Mr. Williams’s testimony about
what the informant told him is inadmissible hearsay that cannot be used to defeat
summary judgment. (Def.’s Summ. J. Reply, at 2–3 (Doc. # 31).) Officer Ingram
“The general rule is that inadmissible hearsay cannot be considered on a
motion for summary judgment.”7 Macuba v. Deboer, 193 F.3d 1316, 1322 (11th
Federal Rule of Civil Procedure 56(c)(4) provides that “an affidavit or declaration used
to support or oppose a motion [for summary judgment] must be made on personal knowledge
[and] set out facts that would be admissible in evidence.” In Macuba, the Eleventh Circuit held
Cir. 1999) (internal footnote and quotation marks omitted); see Fed. R. Evid.
801(c) (“‘Hearsay’ is a statement other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.”). At the summary judgment stage, a court may consider a hearsay
statement if it “could be reduced to admissible evidence at trial or reduced to
admissible form.” Id. at 1323 (citation and internal quotation marks omitted). As
elaborated upon in Macuba,
[C]ourts have used the phrases “reduced to admissible evidence at
trial” and “reduced to admissible form” to explain that the out-ofcourt statement made to the witness (the Rule 56(c) affiant or the
deposition deponent) must be admissible at trial for some purpose.
For example, the statement might be admissible because it falls within
an exception to the hearsay rule, or does not constitute hearsay at all
(because it is not offered to prove the truth of the matter asserted), or
is used solely for impeachment purposes (and not as substantive
193 F.3d at 1323–24.
Moreover, where there are two layers of hearsay, both layers must be
excepted from the hearsay rule for the statement to be admissible. See Fed. R.
Evid. 805 (providing that “[h]earsay within hearsay is not excluded by the rule
against hearsay if each part of the combined statements conforms with an
that this procedural rule “also applies to testimony given on deposition.” 193 F.3d at 1323. An
out-of-court statement made to an affiant, a declarant, or a deponent, therefore, is “admissible in
evidence” only if it is “admissible at trial for some purpose.” Id. Mr. Williams has personal
knowledge of what the informant told him, but does not have personal knowledge of what
Officer Ingram told the informant. As discussed, the evidence cannot sustain Mr. Williams’s
summary judgment burden because it is not admissible in evidence within the meaning of
Eleventh Circuit case law.
exception to the rule”); see also United States v. Pendas-Martinez, 845 F.2d 938,
942–43 (11th Cir. 1988) (“[E]ven if one level of double-hearsay statement was not
hearsay under Rule 801(d)(1)(B), second level of hearsay was not excepted from
rule and document was inadmissible” (citing S. Stone Co. v. Singer, 665 F.2d 698,
703 (5th Cir. Unit B Jan. 1982)). And “[f]or the purposes of the hearsay-withinhearsay principle expressed in rule 805, ‘non-hearsay” statements under rule
801(d) . . . should be considered in analyzing a multiple-hearsay statement as the
equivalent of a level of the combined statements “that conforms with an exception
to the hearsay rule.” United States v. Dotson, 821 F.2d 1034, 1035 (5th Cir. 1987)
(citing S. Stone Co., 665 F.2d at 698); accord Pendas-Martinez, 845 F.2d at 943.
Mr. Williams’s testimony about what the informant said and, in particular,
what the informant said Officer Ingram said, if admissible at the summary
judgment stage, is pivotal for proving his theory that Officer Ingram lied about the
facts establishing probable cause for Mr. Williams’s arrest for first-degree robbery.
But Mr. Williams’s testimony contains two levels of hearsay: The informant said
(first layer) that he fabricated the robbery and that Officer Ingram told him (second
layer) that he had to do so to secure a dismissal of the bad-check charges.
In his summary judgment briefing, Mr. Williams does not assert any basis
for admitting either the informant’s or Officer Ingram’s statements.8
Ingram’s statement would be admissible as non-hearsay under Rule 801(d)(2)(A)
as an admission of a party opponent. See Fed. R. Evid. 801(d)(2)(A). However,
“the mere fact that one level of a multiple-level statement qualifies as ‘nonhearsay’ does not excuse the other levels from rule 805’s mandate that each level
satisfy an exception to the hearsay rule for the statement to be admissible.”
Dotson, 821 F.3d at 1035.
Even though Officer Ingram’s statement to the
informant qualifies as non-hearsay under Rule 801(d)(2)(A), Mr. Williams seeks to
offer that statement through the informant, but he does not argue any grounds upon
which the informant’s statement can be reduced to admissible form. And Officer
Ingram argues that the Eleventh Circuit’s decision in Jones v. UPS Ground
Freight, 683 F.3d 1283 (11th Cir. 2012), demonstrates that there are no such
In Jones, the Eleventh Circuit applied Macuba at the summary judgment
stage to exclude a declarant’s hearsay statement where that statement contradicted
the declarant’s sworn testimony given during the course of discovery. The court
explained that “[t]he most obvious way that hearsay testimony can be reduced to
admissible form is to have the hearsay declarant testify directly to the matter at
Mr. Williams omits entirely any discussion of this hearsay problem in his summary
trial.” Id. at 1294. “If, however, the declarant has given sworn testimony during
the course of discovery that contradicts the hearsay statement, [the court] may not
consider the hearsay statement at the summary judgment phase.” Id.
instance, “[t]he possibility that the declarant might change his sworn deposition
testimony and admit to the truth of the hearsay statement amounts only to a
suggestion that admissible evidence might be found in the future, which is not
enough to defeat a motion for summary judgment.” Id. (citation and quotation
Although some of the facts in Jones are distinguishable,9 the facts here
converge with those in Jones in at least one material respect: The declarant’s outof-court statement contradicts the declarant’s sworn testimony given during the
In Jones, the plaintiff was trying to contradict his own deposition testimony by relying
upon an email in which his supervisor informed the human resources manager that the plaintiff
had told him that unnamed co-workers made racial statements “to him all the time.” 683 F.3d
at 1293. The Eleventh Circuit observed that the statement was hearsay (of many kinds) “to the
extent it is used to prove the truth of the matter asserted – i.e., that ‘they make racial remarks to
him all the time.’” Id. The issue was whether the statement’s “inadmissibility at trial prevents
[the plaintiff] from relying upon it to defeat [the defendant’s] summary judgment motion.” Id.
The court noted that, at best, the statement might be admissible under an exception to the hearsay
rule for the limited purpose of demonstrating that the defendant was aware that the plaintiff had
complained about racial incidents. See id. at 1293 n.35. But, even in that scenario, the jury
would not have been able to “consider the statement as evidence that the racial remarks were in
fact made.” Id. In Jones, no assumption could be made that the plaintiff would testify in
conformity with the hearsay statement in the email because at his deposition, the plaintiff
expressly contradicted the hearsay statement. See id. at 1294. On that basis, the court concluded
that the plaintiff could not use the hearsay statement in the email to defeat summary judgment.
See id. An additional reason, not present in this case, also required the hearsay statement’s
exclusion. As the Eleventh Circuit observed, “There is another and, perhaps, more fundamental
reason why the [plaintiff’s] statement in [the] email should not be considered in deciding
summary judgment.” Id. at 1294–95. “[W]e [have] held that we should not consider for
summary judgment purposes even non-hearsay testimony of a witness that is more favorable on a
factual issue than the nonmoving party’s own testimony.” Id. at 1295.
course of discovery. Here, as in Jones, the informant provides testimony in his
declaration that directly contradicts the out-of-court statements that Mr. Williams
attributes to him. Namely, the informant declares that “Officer Ingram has never
pressured or coerced [him] to make a false statement against [Mr.] Williams[,]”
and that he [the informant] “ha[s] never made a false statement against” Mr.
Williams. (Ingram’s Decl. ¶ 15.) Based upon Jones, it cannot be assumed at the
summary judgment stage that the informant will change his sworn declaration
testimony and testify at trial in conformity with the hearsay statement, and “[t]he
possibility that [the informant] might change his sworn . . . testimony . . . is not
enough to defeat a motion for summary judgment.” Jones, 683 F.3d at 1294.
Mr. Williams also has not demonstrated that the informant’s out-of-court
statement would be admissible at trial on any other grounds for the truth of the
matter asserted. Mr. Williams has not contended that the informant’s out-of-court
statement fits within one of the exceptions to the hearsay rule, see Fed. R. Evid.
803, 804, or is non-hearsay under Rule 801(d), and he has not otherwise laid a
foundation for the admissibility of the informant’s statements. Mr. Williams might
testify at trial as to the informant’s out-of-court statements to impeach the
informant’s contrary trial testimony. While the informant’s hearsay statement
might be admissible in that instance for the limited purpose of impeachment,
impeachment evidence is not substantive evidence, see Macuba, 193 F.3d at 1323–
24; Jones, 683 F.3d at 1293 n.35, and the possibility that the informant might be
impeached by his hearsay statement at trial “amounts only to a suggestion that
admissible evidence [for a limited, non-substantive purpose] might be found in the
future, which is not enough to defeat a motion for summary judgment.” Id.
(citation and quotation marks omitted). In sum, Mr. Williams’s testimony about
the informant’s out-of-court statements is inadmissible hearsay that cannot be
considered at the summary judgment stage.
Mr. Williams is left only with his summary judgment briefing that relies on
conclusory allegations of fabrication on Officer Ingram’s part, unsupported by
evidentiary facts. However, it is well established in this circuit that “conclusory
allegations without specific supporting facts have no probative value.” Myers v.
Bowman, 713 F.3d 1319 (11th Cir. 2013) (citation and internal quotation marks
omitted); see also United States v. Cardona, 302 F.3d 494, 497 (5th Cir. 2002)
(“[A]rguments in brief are not evidence.”). In sum, Mr. Williams submits no
admissible evidence from which it can be inferred that Officer Ingram lied in the
sworn statement he presented to the magistrate to obtain an arrest warrant for Mr.
Williams on a first-degree robbery charge. Accordingly, Mr. Williams fails to
raise a genuine dispute of material fact on his § 1983 malicious prosecution claim
predicated on the theory that Officer Ingram fabricated evidence in violation of
Reliability of the Information Provided by the Informant
The inquiry should be over, but in his summary judgment briefing, Mr.
Williams argues an alternative basis for denying summary judgment on his § 1983
malicious prosecution claim. He contends that “no reasonable officer could have
found probable cause under the totality of the circumstances” based solely on the
informant’s statement that Mr. Williams had robbed him. (Pl.’s Summ. J. Br.,
at 12 (citing Storck v. City of Coral Springs, 354 F.3d 1307, 1313 (11th Cir.
2003).) This theory is that the informant’s information cannot supply probable
cause because the informant was, among other things, a drug addict with a criminal
history. (Pl.’s Summ. J. Br., at 4, 6, 12–13.)
Information provided by a confidential informant can be sufficient to supply
probable, so long as the information satisfies the test enunciated in Illinois v.
Gates, 462 U.S. 213 (1983). In Ortega v. Christian, 85 F.3d 1521 (11th Cir.
1996), the Eleventh Circuit explained,
[The plaintiff] argues that informant information alone cannot
sufficiently support a finding of probable cause. In determining
whether an informant’s tip rises to the level of probable cause, we
assess the totality of the circumstances. United States v. Gonzalez,
969 F.2d 999, 1002 (11th Cir. 1992); United States v. Campbell, 920
F.2d 793, 796–97 (11th Cir. 1991). We consider the relevance of
factors such as the informant’s “veracity,” “reliability,” and “basis of
knowledge.” Gonzalez, 969 F.2d at 1003 (citing Illinois v. Gates, 462
U.S. 213, 230 . . . (1983)). In addition, the corroboration of the details
of an informant’s tip through independent police work adds
significant value to the probable cause analysis. Gonzalez, 969 F.2d
Id. at 1525. “When the facts are not in dispute, whether probable cause existed is a
question of law, and summary judgment is appropriate.” Marx v. Gumbinner, 905
F.2d 1503, 1506 (11th Cir. 1990).
The court has little trouble concluding that the material facts, viewed in the
light most favorable to Mr. Williams and in their totality, demonstrate that the
informant’s account of the robbery establishes probable cause for Mr. Williams’s
arrest for first-degree robbery.10 First, the informant had assisted the Abbeville
Police Department as an informant for controlled buys in the past and had proven
reliable in that role. (Ingram’s Decl. ¶ 4; Ingram’s Dep., at 99; Confidential
Informant Agreement.) Second, based upon the informant’s past performance,
Officer Ingram testified that he could conceive of no reason to believe that the
informant was not truthful when he reported that Mr. Williams had robbed him
during the intended controlled drug buy. (Ingram’s Dep., at 99.) Third, the
informant did not provide cursory information about the robbery. Rather, he
provided a detailed statement to Officer Ingram explaining exactly how the
robbery had transpired (Ingram’s Decl. ¶¶ 8–16), and Officer Ingram accompanied
the informant to the scene to confirm the area where the robbery allegedly
Officer Ingram has emphasized that the informant was a victim of robbery on the day
in question, not just an informant, and that “[g]enerally, an officer is entitled to rely on a victim’s
criminal complaint as support for probable cause.” Myers v. Bowman, 713 F.3d 1319, 1326–27
(11th Cir. 2013) (citation and internal quotation marks omitted). The court nonetheless has
examined the evidence, viewed in the light most favorable to Mr. Williams, under the Illinois v.
occurred. Fourth, the basis of the informant’s knowledge was his own personal
observation and occurred after Officer Ingram had knowledge of a pre-arranged
meeting between the informant and Mr. Williams for purposes of a controlled drug
buy. See Gates, 462 U.S. at 234 (“[E]ven if we entertain some doubt as to an
informant’s motives, his explicit and detailed description of alleged wrongdoing,
along with a statement that the event was observed first-hand, entitles his tip to
greater weight than might otherwise be the case.”); cf. United States v. Reyes, 792
F.2d 536, 539 (5th Cir. 1986) (“[A]n informant’s tip is buttressed by the fact that it
is based on his own personal observation rather than on hearsay.”).
Mr. Williams argues, however, that there are a multitude of shortcomings in
Officer Ingram’s reliance on the informant’s information to establish probable
cause and that these shortcomings create a genuine dispute of material fact for trial.
The alleged shortcomings include the following. Officer Ingram knew that the
informant had “several arrests in the past on drug offenses” and “was in that
business.” (Ingram’s Dep., at 26; Pl.’s Summ. J. Br., at 2.) Officer Ingram knew
that the informant had pending bad check charges at the time of the alleged
robbery. (Pl.’s Dep., at 96.) The search of Mr. Williams’s residence on September
10 did not result in the recovery of any incriminating evidence – not the cell phone,
not the $20 bill, and not any other contraband. (Pl.’s Summ. J. Br., at 3.) The
robbery allegedly occurred in “broad daylight” in a “business district.” (Pl.’s
Summ. J. Br., at 4 (citing Ingram’s Dep., at 79).) And lastly, the informant was not
successful on a prior occasion in purchasing drugs from Mr. Williams in an
attempted controlled buy. (Pl.’s Summ. J. Br., at 4 (citing Ingram’s Dep., at 39).)
Mr. Williams’s arguments have been carefully considered; however, in light
of the evidence, the arguments are insufficient to create a genuine dispute of
material fact on the issue of whether Officer Ingram could rely on the informant as
the basis for probable cause. First, the fact that the informant has a criminal past
does not make him unreliable. A law enforcement agency would be hard pressed
to find an informant who did not have a criminal history. As the Sixth Circuit
aptly has observed,
Considering that it is often people involved in criminal activities
themselves [who] have the most knowledge about other criminal
activities . . . , it is no surprise that most confidential informants are
[or have been] engaged in some sort of criminal activity. It would
unduly hamper law enforcement if information from such persons
were considered to be incredible simply because of their criminal
United States v. Fowler, 535 F.3d 408, 416 (6th Cir. 2008). Second, the search of
Mr. Williams’s home occurred after Officer Ingram had obtained the arrest
warrant, so the failure of the search to reveal any incriminating items was not
known to Officer Ingram at the time he evaluated the informant’s statement about
Third, as to his contention that the robbery occurred in broad
daylight, Mr. Williams does not explain how this fact raises a genuine issue of
material fact. Daylight hours are not immune from crime. Fourth, the record does
not support the argument that Mr. Williams robbed the informant in a “business
district.” Rather, the evidence demonstrates that the informant reported that Mr.
Williams robbed him, after the two had driven around in Mr. Williams’s pick-up
truck and Mr. Williams had parked on the side of a residential street. (Ingram’s
Decl. ¶¶ 10–11; Ingram’s Dep., at 79.) Fifth, the evidence that Mr. Williams cites
about a prior attempted controlled drug buy reveals that Mr. Williams “didn’t show
up” to meet the informant on August 17, 2007 (Ingram’s Dep., at 39), and Mr.
Williams does not demonstrate how this fact creates a genuine issue for trial
whether Mr. Williams robbed the informant the next month, on September 7.
In sum, Mr. Williams has not demonstrated that the totality of the
circumstances raises a genuine dispute of material fact as to Officer Ingram’s
reliance on the informant’s report of the robbery as the basis for probable cause.
“[T]he existence of probable cause defeats a § 1983 malicious prosecution claim.”
Grider, 618 F.3d at 1256. Alternatively, at the very least, the summary judgment
facts demonstrate arguable probable cause sufficient to confer qualified immunity
on Officer Ingram.11 Accordingly, Officer Ingram’s motion for summary judgment
is due to be granted on Mr. Williams’s § 1983 malicious prosecution claim.12
As to the threshold qualified immunity question, there is no dispute that Officer Ingram
was acting within his discretionary capacity when he sought a warrant for Mr. Williams’s arrest
for first-degree robbery. See Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988) (The
State-Law Malicious Prosecution Claim
Under Alabama law, as under § 1983, a plaintiff must show the absence of
probable cause.13 See Wal-Mart Stores, Inc. v. Goodman, 789 So. 2d 166, 174
(Ala. 2000); accord Grider, 618 F.3d at 1256 (observing that the absence of
probable cause is an element of malicious prosecution under § 1983 and Alabama
Mr. Williams’s state-law malicious prosecution claim cannot survive
summary judgment for the same reason that his § 1983 malicious prosecution
claim cannot, namely, because Mr. Williams fails to raise a genuine dispute of
material fact that his arrest lacked probable cause.14
Alternatively, on the summary judgment facts, Officer Ingram is entitled to
state-agent immunity under Alabama law because the evidence establishes that he
was engaged in the performance of a discretionary function during the events in
question and had at least arguable probable cause to apply for the arrest warrant,
government actor is acting within his discretion if “his actions were undertaken pursuant to the
performance of his duties and within the scope of his authority.” (citation and internal quotation
Based upon this finding, it is unnecessary to address Officer Ingram’s additional
arguments for summary judgment, including those that rely on the doctrine of collateral estoppel.
Even though Mr. Williams’s underlying federal-law claim does not survive summary
judgment, the court retains authority to exercise supplemental jurisdiction pursuant to § 1367
over Mr. Williams’s state-law claim that arises from the same facts. See Palmer v. Hosp. Auth.
of Randolph Cnty., 22 F.3d 1559, 1567 (11th Cir. 1994).
This failure of proof also demonstrates the absence of evidence of malice. See Wood,
323 F.3d at 884 (observing that as to the malicious prosecution under Alabama law, “the
existence of probable cause, and in particular the facts showing that probable cause, contradict
any suggestion of malicious intent or bad faith”).
and there is no evidence that Officer Ingram acted in bad faith, maliciously, or
willfully. See generally Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000)
(discussing state-agent immunity); cf. Borders v. City of Huntsville, 875 So. 2d
1168, 1180, 1182 (Ala. 2003) (“Although this Court has not directly addressed the
issue of the relationship between probable cause and discretionary-function
immunity, we agree that the standard of ‘arguable probable cause’ should govern
further proceedings in this case.”). Accordingly, Officer Ingram’s motion for
summary judgment is due to be granted on the state-law malicious prosecution
Based upon the foregoing, it is ORDERED that Officer Ingram’s motion for
summary judgment (Doc. # 23) is GRANTED.
A final judgment will be entered separately.
DONE this 2nd day of May, 2014.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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