Harris v. Food Giant Supermarkets Inc. et al (JOINT ASSIGN)(MAG+)

Filing 41

MEMORANDUM OPINION AND ORDER: Accordingly, it is ORDERED: 1. Plaintiff's objections (Doc. # 30 ) are OVERRULED. 2. Defendant Andy Gunter's objections (Doc. # 31 ; Doc. # 34 ) are OVERRULED.3. The Recommendation (Doc. # 29 ) is ADOPTE D as to the conclusions that Counts I and VI against Defendant Gunter shall be dismissed without prejudice and that Counts II, III, IV, and V against Defendant Gunter should be dismissed with prejudice. 4. The Recommendation is MOOT as to its conclus ions pertaining to claims against former Defendant Food Giant. 5. Defendant Andy Gunters motion to dismiss (Doc. # 16 ) is GRANTED as to Counts II, III, IV, and V of the Second Amended Complaint, and those counts are DISMISSED with prejudices as to Defendant Gunter. 6. Defendant Andy Gunter's motion to dismiss (Doc. # 16 ) is DENIED as to Counts I and VI of the Second Amended Complaint, and those counts are dismissed without prejudice as to Defendant Gunter. 7. This case is REFERRED back to the Magistrate Judge for a ruling on Plaintiff's motion to amend and for further proceedings on Plaintiff's 1983 and state-law malicious prosecution claim against Defendant Gunter. Signed by Chief Judge William Keith Watkins on 3/21/2018. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOHNNIE WILL HARRIS, JR.,
Plaintiff,
v.
ANDY GUNTER,
Defendants.

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MEMORANDUM OPINION AND ORDER
On November 29, 2017, the Magistrate Judge filed a Recommendation (Doc.
# 29) as to Defendant Food Giant Supermarkets, Inc.’s Renewed Partial Motion to
Dismiss (Doc. # 11)1 and Defendant Andy Gunter’s Motion to Dismiss (Doc. # 16).
On December 13, 2017, Plaintiff Johnnie Will Harris, Jr. filed objections (Doc. #
30) to the Recommendation. Defendant Gunter responded and also objected to the
dismissal of Counts I and VI without prejudice and with leave to amend.2 (Doc. #
34.) Also on December 13, 2017, Defendant Gunter filed objections (Doc. # 31) to
the Recommendation. Upon an independent and de novo review of those portions

1

On February 5, 2018, pursuant to the stipulation of dismissal filed by Plaintiff and
Defendant Food Giant, the court denied Food Giant’s motion to dismiss (Doc. # 11) as moot.
(Doc. # 37.) Pursuant to the stipulation, Plaintiff dismissed all claims against Food Giant with
prejudice and, consequently, the court need not address the Recommendation as it pertains to
claims against Food Giant.
2

Although objections raised in Gunter’s response brief are untimely, they will be
considered.

of the Recommendation to which objection is made, see 28 U.S.C. § 636(b), the
Recommendation is due to be adopted as to Defendant Gunter. The stipulated
dismissal of Plaintiff’s claims against Food Giant moots the remainder of the
Recommendation.
I.

FACTS3

Plaintiff alleges that, in December 2014, someone cashed a forged check in
Plaintiff’s name at Food Giant’s Elba, Alabama store. (Doc. # 3 at ¶¶ 3, 10.) Food
Giant had video surveillance footage of the incident and took fingerprints of the
person who cashed the check. (Doc. # 3 at ¶¶ 7, 10.) The surveillance video and
fingerprints conclusively proved that Plaintiff was not the person who committed
the forgery. (Doc. # 3 at ¶¶ 7, 10.) Nevertheless, on October 27, 2015, Plaintiff was
arrested for the forgery pursuant to a warrant that was based on a complaint by
Defendant Gunter, an Elba, Alabama police officer. (Doc. # 3 at ¶¶ 1-2.) The grand
jury of Coffee County issued a “no bill” in the case against Plaintiff. (Doc. # 3 at ¶
13.)
Plaintiff alleges that, at the time Defendant Gunter swore out the complaint,
one or more of the following was true: (1) Defendant Gunter knew that Plaintiff was

3

“In deciding a Rule 12(b)(6) motion to dismiss, the court must accept all factual
allegations in a complaint as true and take them in the light most favorable to [the] plaintiff.”
Dusek v. JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016). However, “[l]egal
conclusions without adequate factual support are entitled to no assumption of truth.” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011).
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not the person who cashed the forged check; (2) Defendant Gunter should have
known that Plaintiff was not the person who cashed the forged check; (3) Defendant
Gunter had the video and/or fingerprint evidence in his possession and therefore
knowingly charged the wrong person; and/or (4) Defendant Food Giant concealed
or refused to provide Defendant Gunter with the surveillance footage and/or
fingerprint evidence and maliciously sought to prosecute Gunter in an effort to
collect from him on the bad check. (Doc. # 3 at ¶¶ 5, 7-13.)
Plaintiff further alleges that Defendant Food Giant “identified [Plaintiff] as
the person cashing the check, notwithstanding the video evidence showing the
person was not [Plaintiff].” (Doc. # 3 at ¶ 24.)
II.
A.

DISCUSSION

Plaintiff’s Objections to Dismissal of Claims against Defendant Food
Giant
Plaintiff objected to the Recommendation that claims against Defendant Food

Giant be dismissed. However, on February 2, 2018, Plaintiff’s claims against
Defendant Food Giant were dismissed by joint stipulation. (Doc. # 36; Doc. # 37.)
Therefore, the grounds set forth in the Recommendation for dismissal of those
claims are now moot.

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B.

Objections Pertaining to Count I of the Second Amended Complaint
Against Defendant Gunter
In Count I, Plaintiff asserts a claim pursuant to 42 U.S.C. § 1983 against

Defendant Gunter for malicious prosecution on grounds that Defendant Gunter had
Plaintiff arrested without probable cause. Gunter moved for dismissal of Count I.
After holding a hearing, the Magistrate Judge entered his Recommendation that
Count I of the Amended Complaint be dismissed without prejudice as to Defendant
Gunter to allow Plaintiff amend his complaint to more clearly state factual
allegations alleging the absence of probable cause. See Grider v. City of Auburn,
Ala., 618 F.3d 1240, 1256-57 (11th Cir. 2010) (holding that, “to establish a § 1983
malicious prosecution claim” arising out of an arrest pursuant to a warrant in
Alabama, “the plaintiff must prove,” among other things, that he was arrested
without probable cause).
Plaintiff objects to the Recommendation that Count I be dismissed without
prejudice and with an opportunity to amend.

He contends that his pleading

sufficiently alleges that Defendant Gunter possessed the video surveillance footage
and fingerprint evidence, but that Defendant Gunter nevertheless arrested Plaintiff
knowing that probable cause was lacking. Count I does include an allegation that,
“[b]y his actions, [Defendant] Gunter had [P]laintiff arrested knowing [Plaintiff] was

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not the person who cashed the check.”4 (Doc. # 3 ¶ 29.) Taken in the light most
favorable to Plaintiff (as is required when considering a motion to dismiss, see Dusek
v. JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016)), the factual
allegations of the complaint are minimally sufficient to support a reasonable
inference that, based on surveillance footage and fingerprint data in his possession,
Defendant Gunter knew that someone other than Plaintiff cashed the forged check
but still swore out the complaint against Plaintiff.
Defendant Gunter objects to the Recommendation that dismissal be without
prejudice because he contends that the allegations of the complaint are sufficient to
establish that he had arguable probable cause to arrest Plaintiff and, therefore, is
entitled to qualified immunity on Count I. See Grider, 618 F.3d at 1257 (holding
that, “[t]o receive qualified immunity, an officer need not have actual probable
cause, but only ‘arguable’ probable cause,” which “exists where reasonable officers
in the same circumstances and possessing the same knowledge as the Defendants

4

Due in part to the express allegation in Count I that Defendant Gunter had Plaintiff
arrested when he knew that Plaintiff was not the person who cashed the forged check, the court
disagrees with the Magistrate Judge’s conclusion that “[a] review of the Second Amended
Complaint . . . reveals that Plaintiff does not allege [Defendant] Gunter’s lack of probable cause
in Count [I].” (Doc. # 29 at 8.) If the factual allegation that Defendant Gunter knew Plaintiff did
not cash the forged check is true, then Defendant Gunter did not have probable cause. Myers v.
Bowman, 713 F.3d 1319, 1326 (11th Cir. 2013) (holding that probable cause exists “when the facts
and circumstances within the officer’s knowledge, of which [the officer] 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” (citations and
internal quotation marks omitted)).

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could have believed that probable cause existed to arrest Plaintiff” (citations and
internal quotation marks omitted)). Seizing on the fact that an officer is generally
allowed to rely on a victim’s complaint to establish probable cause, Myers v.
Bowman, 713 F.3d 1319, 1326 (11th Cir. 2013), Defendant Gunter emphasizes that
the complaint contains an alleges Food Giant “identified [Plaintiff] as the person
cashing the check, notwithstanding the video evidence showing the person was not
[Plaintiff].” (Doc. # 3 at ¶ 24.)
The problem with Defendant Gunter’s argument is that it requires the court to
view the alleged facts in the light least favorable to Plaintiff, which is not appropriate
at the motion-to-dismiss stage. Dusek, 832 F.3d at 1246. Even if Food Giant
“identified [P]laintiff” as the culprit to Defendant Gunter,5 that allegation must be
viewed in the context of the Second Amended Complaint, which presents several
alternative and mutually exclusive factual allegations and theories of liability. As
one theory of liability, Plaintiff alleges a set of facts suggesting that, in a malicious
effort to recoup the funds from the forged check, Defendant Food Giant concealed
the truth from Defendant Gunter and deliberately accused Plaintiff knowing he was
innocent. A number of factual allegations in the Second Amended Complaint align
with that theory, such as the allegation that Defendant Food Giant withheld the

5

The Second Amended Complaint does not state to whom Defendant Food Giant identified
Plaintiff as the culprit.
6

surveillance footage and fingerprints from Defendant Gunter and that Defendant
Food Giant identified Plaintiff as the culprit. Under that theory, Defendant Gunter
would have simply been the unwitting pawn of Defendant Food Giant, and he may
have reasonably relied on Food Giant’s false accusations as probable cause.
However, Plaintiff also alternatively alleges that Defendant Food Giant gave
Defendant Gunter the surveillance footage and fingerprint evidence and that
Defendant Gunter knew Plaintiff was not the culprit. Notably, specifically within
Count I, Plaintiff expressly alleged that, “[b]y his actions, [Defendant] Gunter had
[P]laintiff arrested knowing [Plaintiff] was not the person who cashed the check.”
(Doc. # 3 ¶ 29.) Taken in the light most favorable to Plaintiff, those allegations are
minimally sufficient to support a reasonable inference that Defendant Gunter did not
have arguable probable cause to make the arrest and is not entitled to qualified
immunity on Count I at this stage of the proceedings.
Defendant Gunter also argues that the Magistrate Judge “correctly determined
that [Defendant] Gunter is entitled to qualified immunity because the complaint does
not plausibly demonstrate that [Defendant] Gunter harbored malice toward
Plaintiff.” (Doc. # 33 at 11.) On this point, Defendant Gunter’s argument fails for
two reasons. First, Defendant Gunter does not indicate why the lack of an allegation
of actual malice would entitle him to qualified immunity on Count I, particularly
where, as here, the factual allegations sufficiently state that Defendant Gunter knew
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he lacked probable cause to make the arrest.

Second, Defendant Gunter

misunderstands the Recommendation. The Magistrate Judge found that Plaintiff
failed to allege that Defendant Gunter acted with malice, which, as an element of the
Alabama tort of malicious prosecution, is necessary to establish a § 1983 claim of
malicious prosecution in Alabama. (Doc. # 29 at 8.) The court disagrees with the
Magistrate Judge’s finding in this regard. Legal malice, as is required to satisfy the
elements of a claim for malicious prosecution under Alabama law, “can be inferred
from the lack of probable cause.” Ex parte Tuscaloosa Cty., 796 So. 2d 1100, 1107
(Ala. 2000). Because Plaintiff did allege minimally sufficient facts to establish a
lack of probable cause, he also alleged minimally sufficient facts to satisfy the legal
malice element of the malicious prosecution claim.
Despite the fact that Plaintiff’s allegations are minimally sufficient to state a
§ 1983 claim for malicious prosecution and to overcome Defendant Gunter’s
qualified immunity defense at the motion-to-dismiss stage, the court agrees with the
Magistrate Judge as to the propriety of dismissal without prejudice to file an
amended complaint. Food Giant has been dismissed from the case pursuant to a
stipulation of dismissal. Plaintiff’s allegations against Defendant Food Giant are
likely to confuse the issues and obscure the nature of the remaining claims against
Defendant Gunter. Further, all parties would benefit from the more detailed factual
allegations Plaintiff offered at the hearing as to why Defendant Gunter knew Plaintiff
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was innocent and how the surveillance video negates probable cause. Moreover,
requiring an amended complaint will not prejudice Plaintiff because, since filing his
objections, he also has filed a motion for leave to amend. (Doc. # 38.) Therefore,
Plaintiff’s objection to dismissing Count I without prejudice as to Defendant Gunter
will be overruled.
C.

Objections Pertaining to Count VI of the Amended Complaint Against
Defendant Gunter
In Count VI, Plaintiff asserts a state-law claim against Defendant Gunter for

malicious prosecution on grounds that Defendant Gunter had Plaintiff arrested
without probable cause. The Magistrate Judge recommended that Count VI of the
Second Amended Complaint be dismissed without prejudice as to Defendant Gunter
to allow Plaintiff to file an amended complaint that more clearly alleges malice and
lack of probable cause.
Plaintiff objects to dismissal of Count VI on the same grounds as he objects
to dismissal of Count I. However, Plaintiff is not opposed to filing an amended
complaint restating Count VI with more specificity. Because Plaintiff will be
allowed an opportunity to amend, Plaintiff’s objection to dismissal of Count VI as
to Defendant Gunter will be overruled.
Defendant Gunter argues, however, that Count VI should be dismissed with
prejudice because Count VI (1) fails to allege facts sufficient to establish probable
cause and (2) fails to allege actual malice, as is necessary to overcome Defendant
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Gunter’s prima facie showing that he is entitled to state-agent immunity on Count
VI. (Doc. # 33 at 17-18.)
As more fully explained in Section II.B., the Second Amended Complaint
does include factual allegations that, viewed in the light most favorable to Plaintiff,
are sufficient support a theory that Defendant Gunter (1) did not have actual or
arguable probable cause to arrest Plaintiff and (2) acted with legal malice. These
allegations satisfy the requisite element of a claim of malicious prosecution under
Alabama law.
As Defendant Gunter argues,6 “malice in law, or legal malice,” while a
necessary element of a malicious prosecution claim under Alabama law, “is not
sufficient to defeat a state agent’s defense of discretionary-function immunity.” Ex
parte Tuscaloosa Cty., 796 So. 2d 1100, 1107 (Ala. 2000). Under Alabama law, to
overcome a defendant’s prima facie showing7 of the applicability of discretionary

6

Defendant Gunter does not cite legal authority to support his assertion that Plaintiff’s
complaint must contain factual allegations of actual malice that are not necessary to support any
element of Plaintiff’s state-law malicious prosecution claim, but, instead, would serve to rebut
Defendant Gunter’s affirmative state-law qualified immunity defense.
7

The court notes the burden-shifting nature of state agent and discretionary function
immunity under Alabama law. First, the defendant must demonstrate that the plaintiff’s claims
arise from the defendant’s exercise of a function that would entitle him to immunity, i.e., that he
was acting as a state agent “‘exercising judgment in the enforcement of the criminal laws of the
state,’” or was engaged in a discretionary function in the capacity of a peace officer. Ex parte
Harris, 216 So. 3d 1201, 1209 (Ala. 2016) (quoting Hollis v. City of Brighton, 950 So. 2d 300,
309 (Ala. 2006)). Although there are other ways to demonstrate that a police officer is engaged in
a discretionary function, in cases of false arrest, false imprisonment, and malicious prosecution,
the officer may do so by showing that he had “arguable probable cause” to make an arrest. Borders
v. City of Huntsville, 875 So. 2d 1168, 1180 (Ala. 2003). Once the defendant shows that he was
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function or state-agent immunity, a plaintiff must show malicious, bad faith, or
willful conduct. Id. A plaintiff may satisfy this burden by showing malice in fact,
or actual malice, i.e., by demonstrating that the defendant’s conduct was “‘so
egregious as to amount to willful or malicious conduct engaged in in bad faith,’”
such as by showing that the defendant bore “‘personal ill will against the [plaintiff]
and that he maliciously or in bad faith arrested him solely for purposes of
harassment.’” Id. (quoting Couch v. City of Sheffield, 708 So. 2d 144, 153–54 (Ala.
1998), abrogated on other grounds by Ex parte Cranman, 792 So. 2d 392 (Ala.
2000)).
Plaintiff alleges facts from which it reasonably can be inferred that Defendant
Gunter swore out the complaint knowing that Plaintiff was innocent. Plaintiff
alleges that “the purpose of the charges by [Defendant Gunter and Food Giant] was
to illegally and improperly collect money from [Plaintiff].” (Doc. # 3 at ¶ 15.)
Viewed in the light most favorable to Plaintiff, these allegations are sufficient to
support a reasonable inference that Defendant Gunter had Plaintiff arrested willfully,
in bad faith, and for the purpose of harassment. Therefore, at this stage of the

engaged in a function that would entitle him to immunity, the burden shifts to the plaintiff to
demonstrate that a recognized exception to state-agent immunity applies—for example, that the
Defendant acted willfully, fraudulently, in bad faith, beyond his authority, or under a mistaken
impression of the law. Harris, 216 So. 3d at 1209.
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proceedings, Count VI is not due to be dismissed on the basis of Defendant Gunter’s
state law immunity defense.
D.

Defendant Gunter’s Objection
Opportunity to Amend

to

Providing

Plaintiff

Another

Defendant Gunter objects to the Magistrate Judge’s Recommendation that
dismissal of Counts I and VI be without prejudice and that Plaintiff be permitted an
additional opportunity to amend. Defendant Gunter argues that dismissal should be
with prejudice because Plaintiff has already had multiple opportunities to amend.
(Doc. # 31.)
As explained in Section II.B.-C., the court disagrees with the Magistrate
Judge’s conclusion that Counts I and VI in the Second Amended Complaint are
insufficient to state a claim. Instead, the court finds that Plaintiff’s complaint, while
not a model pleading, is minimally sufficient to survive the motion to dismiss as to
those two counts. Therefore, dismissal with prejudice is not appropriate, and
dismissal without prejudice will not prejudice Defendant Gunter. Rather, providing
Plaintiff an opportunity to amend will streamline the case by removing potentially
confusing allegations against dismissed Defendant Food Giant, providing a more
informative statement of Plaintiff’s remaining claims, and eliminating superfluous
causes of action.8 See Maynard v. Bd. of Regents of Div. of Universities of Fla. Dep’t

8

In adopting the Magistrate Judge’s Recommendation, the court agrees with the
Magistrate Judge’s decision to provide Plaintiff an opportunity to file a motion for leave to amend.
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of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1287 (11th Cir. 2003) (noting that
“[l]eave to amend shall be freely given when justice so requires” (citations and
internal quotation marks omitted)).
E.

Remaining Counts Against Defendant Gunter
Plaintiff did not object to the dismissal of Counts II, III, IV, and V9 against

Defendant Gunter.

Upon an independent review of the record and upon

consideration of the Recommendation, the court concludes that those counts are due
to be dismissed with prejudice as to Defendant Gunter.
III.

CONCLUSION

Accordingly, it is ORDERED:
1.

Plaintiff’s objections (Doc. # 30) are OVERRULED.

2.

Defendant Andy Gunter’s objections (Doc. # 31; Doc. # 34) are

OVERRULED.
3.

The Recommendation (Doc. # 29) is ADOPTED as to the conclusions

that Counts I and VI against Defendant Gunter shall be dismissed without prejudice
and that Counts II, III, IV, and V against Defendant Gunter should be dismissed with
prejudice.

The court expresses no opinion as to the merits of Plaintiff’s pending motion to amend or as to
whether Plaintiff has demonstrated that his proposed amendment should be allowed. (Doc. # 38.)
9

The remaining counts of the Second Amended Complaint (Counts VII and VIII) were
asserted solely against former Defendant Food Giant and not against Defendant Gunter.
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4.

The Recommendation is MOOT as to its conclusions pertaining to

claims against former Defendant Food Giant.
5.

Defendant Andy Gunter’s motion to dismiss (Doc. # 16) is GRANTED

as to Counts II, III, IV, and V of the Second Amended Complaint, and those counts
are DISMISSED with prejudices as to Defendant Gunter.
6.

Defendant Andy Gunter’s motion to dismiss (Doc. # 16) is DENIED as

to Counts I and VI of the Second Amended Complaint, and those counts are
dismissed without prejudice as to Defendant Gunter.
7.

This case is REFERRED back to the Magistrate Judge for a ruling on

Plaintiff’s motion to amend and for further proceedings on Plaintiff’s § 1983 and
state-law malicious prosecution claim against Defendant Gunter.
DONE this 21st day of March, 2018.

/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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