Cornelius et al v. The City of Andalusia et al
MEMORANDUM OPINION AND ORDER that: (1) Officer Kipp's 71 Motion for Summary Judgment is GRANTED as to the 1983 conspiracy claim in Count One against Officer Kipp (Second Am.Compl.). The motion otherwise is DENIED as moot. (2) Willis' [79 ] Motion for Summary Judgment is GRANTED as to the 1983 conspiracy claim in Count One against Willis (Second Am. Compl.). The motion otherwise is DENIED as moot. (3) The remaining claims, which are brought under state law, are DISMISSED pursuant to 28 U.S.C. 1367(c)(3). An appropriate judgment will be entered. Signed by Honorable William Keith Watkins on 2/26/2009. (dmn)
IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION R A N D Y CORNELIUS, et al., P l a i n t if f s , v. C IT Y OF ANDALUSIA, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) )
C A S E NO. 2:06-CV-312-WKW [WO]
M E M O R A N D U M OPINION AND ORDER B e f o re the court are two motions for summary judgment, one filed by Defendant Keith K ip p ("Officer Kipp") (Doc. # 71), and the other by Defendant Andy Willis ("Willis") (Docs. # 79). Each motion is accompanied by a brief. (Docs. # 72 & 80.) Plaintiff Randy Cornelius (" C o rn e liu s " ) filed a response to Officer Kipp's motion. (Doc. # 82.) The motions are thus rip e for resolution. Based upon careful consideration of the arguments of counsel, the re le v a n t law, and the record as a whole, the motions for summary judgment are due to be g r a n te d . I . JURISDICTION AND VENUE S ubject matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331, 1343(a)(4), and 1 3 6 7 (a ). The parties do not contest personal jurisdiction or venue, and there are allegations s u f f ic ie n t to support both.
I I . FACTUAL AND PROCEDURAL BACKGROUND A. F a c tu a l Background C o rn e liu s is suing Willis, a private citizen, and Officer Kipp, a game warden,1 for in c id e n ts that occurred the night of November 13, 2004, when the police and Officer Kipp s to p p e d Cornelius on his way back into town after a day of hunting. 2 Cornelius was bow h u n tin g on property he leased outside the City of Andalusia, Alabama.3 With him was Casey J o h n s to n ("Johnston"), the son of a longtime customer of Cornelius's barber shop. Cornelius a n d Johnston were hunting separately that day. When it was almost dark, Cornelius turned o f f a public road and onto a road that ran along a sewer-line on the leased property, picked J o h n s to n up, and drove back out toward the public road.4 O n their way back out, Cornelius and Johnston confronted a pick-up truck positioned n e a r the intersection of the sewer-line right-of-way and the public road. Willis was driving
Officer Kipp is an officer with the Alabama Department of Conservation.
A few prefactory notes on citations: (1) specific record citations are provided for disputed facts or if needed for clarity; (2) the facts are viewed in the light most favorable to the nonmovant, Cornelius (see Standard of Review infra); and (3) the complaint has gone through several iterations (see Docs. # 1, 16, 58), but it is the Second Amended Complaint (Doc. # 58) that governs. Cornelius technically did not have a lease with the property owner. Cornelius had an arrangement with the lessee whereby Cornelius paid him a fee. (Cornelius Dep. 32-33, Oct. 9, 2008 (Mot. Summ. J. Br. Kipp Ex. 1).) For the sake of convenience, the arrangement is referred to as Cornelius's leasing the property.
The exact time of night when they drove back out is unclear and in dispute.
th e truck.5 In his deposition, Cornelius testified that the truck was blocking the right-of-way. (C o rn e liu s Dep. 18-19, Oct. 9, 2008 (Mot. Summ. J. Br. Kipp Ex. 1).) In his words, I went to pick [Johnston] up, come back out to the road, and there was a car that had me blocked in where I couldn't get out. .... It was a truck, I believe. And it was had the driveway blocked. I ro lle d my window down and said, Hey, man what are you doing? H e said, what you doing? I said I'm hunting; why? He didn't say nothing. I sit there a little while, a n d he didn't never move or anything. So I just pulled down in the ditch and aro u n d him. And I got out of the I stopped the car, and I got out of the car. I was going to walk back there and ask him what was going on, and he just b a c k ed further down the road. (C o rn e liu s Dep. 18, 19-20.) Cornelius then returned to his car and headed back to town. O n c e inside the city limits, the police and Officer Kipp pulled Cornelius over. How h e was pulled over is unclear. During his deposition, Cornelius at first testified that he could n o t remember if the police stopped him by pulling in front or in back of his car. (Cornelius D e p . 96.) After reading an affidavit attached to his notice of claim and executed on D e c em b e r 13, 2004, however, Cornelius recalled that when he was driving back into town, th e police cars were blocking the road and facing him. (Cornelius Dep. 113-16.) Cornelius c la im s that after stopping his car, the police ran up to his car window, pointed a gun at him, to ld him to get out of the car and to put his hands above his head.6 (Cornelius Dep. 22.) He a sk e d one officer, who was holding the gun and pointing it to his head, to remove the gun
Willis testified that two other people were in the truck with him. (Willis Dep. 38, Oct. 9, 2008 (Mot. Summ. J. Br. Willis Ex. 4).) Cornelius did not know Willis at the time.
He remembers two officers pointing a gun at him, one for a long time. (Cornelius Dep. 100.)
f ro m his face. (Cornelius Dep. 22-23.) Cornelius testified that the officer was shaking his g u n .7 (Cornelius Dep. 22-23.) Cornelius testified that the officers also asked Johnston to get o u t of the car (Cornelius Dep. 24), though Johnston claims he was never ordered out of the c a r (Johnston Aff. ¶ 11 (Resp. Ex. 4)). According to Cornelius's version of events, Officer K ip p then asked Cornelius to step to the back of the car (Cornelius Dep. 25), laid him over th e trunk, put his hands behind him, and handcuffed them (Cornelius Dep. 119). After C o rn e liu s asked why he was being arrested, Officer Kipp told him that he was not being a rre ste d but being detained for poaching. (Cornelius Dep. 25-26.) Cornelius then asked how o n e could poach on his own land, and told Officer Kipp about his lease to hunt there. (C o rn e liu s Dep. 26.) Officer Kipp made a phone call, and found out that the land was leased t o Cornelius. (Cornelius Dep. 27.) He unclasped Cornelius's handcuffs, apologized to C o rn e liu s , and allowed him to leave the scene of the stop. (Cornelius Dep. 29.) Thusly, the e n c o u n te r ended. At some point during the detention, the police officers or Officer Kipp searched the c a r even though Cornelius told them he and Johnston had no guns.8 (Cornelius Dep. 29.) C o r n e liu s stated that the search involved opening doors and looking in the car with f la sh lig h ts , but that the officers did not get into the car or look under the seats, open the glove
Once Cornelius was in handcuffs, the police stopped pointing guns at him. (Cornelius Dep.
39.) Cornelius gave conflicting answers as to whether the officers asked for consent to search. (See Cornelius Dep. 120.)
c o m p a r tm e n t, or open the trunk. (Cornelius Dep. 30-31.) Cornelius testified that the d eten tio n lasted fifteen to twenty minutes, though "[m]aybe longer[,] . . . like two hours[,]" b u t that he "didn't know how long it was to be honest." (Cornelius Dep. 28.) 9 T h e stop and detention were initiated by a series of phone calls Willis made to Officer K ip p that evening. Officer Kipp and Willis are, in Officer Kipp's words, "good friends." (K ip p Dep. 72, Oct. 9, 2008 (Mot. Summ. J. Br. Kipp Ex. 2).) They have hunted together in the past, but Officer Kipp testified that he and Willis did not hunt together in the 2004 h u n tin g season on the property near Cornelius's leased land. (Kipp Dep. 16.) On November 13, 2004, Willis was hunting on property across the road from the s e w e r-lin e right-of-way. When he finished hunting and was driving away, he noticed a car t u r n i n g left onto the sewer-line road.1 0 (Willis Dep. 25, Oct. 9, 2008 (Mot. Summ. J. Br. W illis Ex. 4).) The car he observed drove around a curve and out of sight. (Willis Dep. 28.) W illis then called Officer Kipp and told him that a suspicious car had turned onto the righto f -w a y.1 1 (Willis Dep. 28, 42.) Willis testified that he was suspicious because it was a car h e did not recognize, turning onto a private right-of-way, the land's lessor had told Willis e a rlie r that year that no one was supposed to be on the land, and Willis had observed other
Johnston's affidavit corroborates Cornelius's testimony. Willis claims that it was after dark when he saw the car turning left. (Willis Dep. 25.)
Officer Kipp was out of uniform at home when Willis called. Officer Kipp dressed in his uniform, and asked for assistance from the police when he started driving to the location. (Kipp Dep. 26.)
ille g a l activities, such as dumping, in that area before and had reported them. (Willis Dep. 3 2 - 3 4 .) Willis remained on the main road near the intersection and the right-of-way. When th e car came back around the curve, Willis testified that he noticed a light shining out of the p a ss e n g e r side window.1 2 (Willis Dep. 35-36.) He confronted Cornelius. Willis testified th a t his truck, though near the right-of-way, was not "obstructing [Cornelius's] exit" and that C o rne liu s "pulled right beside [him]" in his car so that the driver's side doors of both cars w e re side by side. (Willis Dep. 37.) They had their conversation,1 3 Cornelius drove off, and W illis followed him. (Willis Dep. 40-41.) Willis drove in the same direction behind C o rn e liu s (Willis Dep. 40) and called Officer Kipp again, giving him a description of the car (in c lu d in g the shining light), the direction in which it was traveling, and the encounter b e tw e e n Willis and Cornelius. (Willis Dep. 54, 57.) Officer Kipp testified that he took W illis 's statement to be "trustworthy." (Kipp Dep. 72.) In Willis's version, about three q u a rte rs of a mile later, where the dirt road turns to pavement, Cornelius stopped his car and sta rte d walking toward Willis's truck. (Willis Dep. 41.) Willis testified that he drove his tru c k in reverse to avoid confronting Cornelius, who returned to his car and continued to d riv e. (Willis Dep. 41.)
In his deposition, Cornelius said he did not remember whether Johnston was shining a flashlight. (Cornelius Dep. 81-82.) There was a flashlight in a pack in his car (Cornelius Dep. 128), and Officer Kipp testified that when asked by Cornelius during the detention, Johnston stated that he had shone a flashlight out of the car window (Kipp Dep. 61).
The different versions of this conversation are materially consistent.
O f f ic e r Kipp and the police officers then stopped Cornelius. Officer Kipp's version o f the stop differs from Cornelius's. Officer Kipp testified that the police officers
a p p ro a c h e d from the rear of Cornelius's vehicle and activated their lights. (Kipp Dep. 31.) In a statement he earlier wrote out about the incident and read at the deposition, Officer Kipp s ta te d that he pulled in front of Cornelius's car, which was traveling at a "very slow speed," a n d activated his lights as well. (Kipp. Dep. 59.) Willis confirmed that he observed a police c a r turn around to drive behind Cornelius and turn on its lights, and Officer Kipp's truck pull in front of Cornelius's car "kind of simultaneously." (Willis Dep. 41-42.) Officer Kipp acknowledges that during the stop, he pointed his gun at Cornelius in the " re a d y" position (Kipp Dep. 36),1 4 but claims that his weapon was not drawn until after C o rn e liu s was stopped (Kipp Dep. 59-60).1 5 Officer Kipp observed that Cornelius "appeared to be fumbling with something below [Officer Kipp's] line of sight," and based upon that, a n d his experience, Officer Kipp suspected Cornelius of having a weapon. (Kipp Dep. 59.) O f f i c e r Kipp then exited his vehicle and ordered Cornelius to put his hands where Officer K ip p could see them. (Kipp Dep. 59.) Officer Kipp claims that Cornelius's hands were not o n the steering wheel. (Kipp Dep. 41.) Cornelius "continued to fumble and started to
Cornelius testified that Officer Kipp was not the one who pointed the gun at him. (Cornelius Dep. 100.) Officer Kipp's exposure to liability, however, is heightened if he was the one who pointed the gun at Cornelius (or if he ordered another officer to point the gun), so for the purpose of viewing the facts in the light most favorable to Cornelius, it will be assumed that he was one of the officers pointing a gun. Many of the following facts come from the statement Officer Kipp executed earlier and read at his deposition.
q u ic k ly exit the vehicle," so Officer Kipp drew his weapon, as did another officer (Kipp D e p . 60.) After more orders to put his hands up, Cornelius finally complied. (Kipp Dep. 60.) J o h n s to n claims, however, that Cornelius had his hands "up or on the steering wheel" the en tire time while they were stopped. (Johnston Aff. ¶ 10.) According to Officer Kipp, another officer then handcuffed Cornelius and did a brief p a t-d o w n for officer safety. (Kipp Dep. 60.) In response to Officer Kipp's questioning, C o rn e liu s stated that he had permission to hunt on the property. (Kipp Dep. 60.) Officer K ip p observed through the vehicle window a flashlight in the front compartment and a set o f archery equipment in the back compartment. (Kipp Dep. 61.) He testified that a more d e ta ile d search was not performed because he saw no evidence of illegal night hunting. (K ip p Dep. 61.) When Cornelius asked whether he was being arrested, Officer Kipp testified th a t he answered in the negative and that Cornelius was only being detained to investigate h u n tin g violations. (Kipp Dep. 61.) After contacting the lessee's son-in-law, who confirmed th a t Cornelius had a right to hunt on the property, Officer Kipp released Cornelius. (Kipp D e p . 61-62.) In Officer Kipp's estimation, the detention lasted ten minutes. (Kipp Dep. 61.) B. P r o c e d u r a l Background C o rn e liu s and other plaintiffs later dismissed from this case (Doc. # 32) filed suit on A p ril 6, 2006. (Doc. # 1.) 1 6 Cornelius filed a Second Amended Complaint on January 9, 2 0 0 8 . (Doc. # 58.) The Second Amended Complaint alleges: (1) a 42 U.S.C. § 1983 claim
This case has a long procedural history, the details of which are not important for this opinion.
o f conspiracy to violate rights secured by the Fourth Amendment against Officer Kipp and W illis ;1 7 (2) a claim for a violation of Fourth Amendment rights against Officer Kipp; (3) n e g lig e n c e against Defendant City of Andalusia, Alabama (the "City") ; (4) willfulness a g a i n s t Willis and Officer Kipp; (5) wantonness against Willis; and (6) wantonness against O f f ic e r Kipp. (Second Am. Compl.) The claims against the City were later dismissed (Doc. # 64), as was the substantive Fourth Amendment claim against Officer Kipp (Second Op. ( D o c . # 65)). Officer Kipp filed a motion for summary judgment on the remaining claims, b u t Willis did not, and Cornelius filed no response. Willis and Cornelius were then directed b y court order to file all evidence with respect to Cornelius's federal claim against Willis for a sua sponte summary judgment ruling on that claim. (Doc. # 74.) Willis complied, and also
Count One is interpreted to allege only conspiracy, and not an underlying Fourth Amendment violation as well. Count One discusses the conspiracy in detail, recognizes that Willis is a private citizen and thus cannot act under color of law (except, as the complaint implies, by conspiracy with a state actor), and does not identify an underlying Fourth Amendment violation directly. In Count Two, Cornelius alleges an underlying Fourth Amendment violation against Officer Kipp. (See Second Am. Compl. ¶¶ 21-29.) Officer Kipp and Willis read Count One to cover only conspiracy as well. (See Mot. Summ. J. Br. Kipp 3; Mot. Summ. J. Br. Willis 4-6.) In Count One, Cornelius also separately alleges a Fourteenth Amendment violation but does not elaborate upon how his Fourteenth Amendment rights were otherwise violated, aside from labeling the violation as one of "due process." (Second Am. Compl. ¶ 25.) The Fourth Amendment is incorporated into the Due Process Clause of the Fourteenth Amendment and thus, is enforceable against the states, Mapp v. Ohio, 367 U.S. 643, 655 (1961), so that could be the reason for the reference to the Fourteenth Amendment, even though it is listed as a separate violation in a separate paragraph. There is no foundation in the allegations or evidence, however, for an independent Fourteenth Amendment violation. As the Eleventh Circuit stated in Hadley v. Guiterrez, 526 F.3d 1324 (11th Cir. 2008), "[i]t is not [the court's] job to divine a constitutional violation to support [a defendant's] conspiracy claim [under § 1983]." Id. at 1332 (11th Cir. 2008). The Hadley court noted that the plaintiff "wholly failed" to establish a constitutional basis for the conspiracy claim, that the plaintiff's complaint provided no explanation of which rights under the Fourteenth Amendment were protected, and that his brief cited no conspiracy cases. Id. at 1332-33. This case is similar to Hadley in this regard Cornelius alleged no specific Fourteenth Amendment rights aside from "due process," cited no conspiracy case in his response, and otherwise did not provide support for his Fourteenth Amendment violation as a basis for the conspiracy claim or as a substantive claim.
f iled a motion for summary judgment with a supporting brief. Cornelius filed a response to O f f ic e r Kipp's motion, but not Willis's. The evidence Willis and Cornelius filed will be c o n s id e r e d for purposes of all the summary judgment motions.18 I I I . STANDARD OF REVIEW S u m m a ry judgment should be granted only "if the pleadings, the discovery and d is c lo s u re materials on file, and any affidavits show that there is no genuine issue as to any m a te ria l fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 5 6 (c ). Under Rule 56, the moving party "always bears the initial responsibility of informing th e district court of the basis for its motion." Celotex Corp. v. Catrett, 477 U.S. 317, 323 ( 1 9 8 6 ). The movant can meet this burden by presenting evidence showing there is no g e n u in e issue of material fact, or by showing that the non-moving party has failed to present e v id e n c e in support of some element of its case on which it bears the ultimate burden of p ro o f . Id. at 322-24. "[T]he court must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Haves v. City of Miami, 52 F.3d 918, 9 2 1 (11th Cir. 1995). Once the moving party has met its burden, "an opposing party may not rely merely on a lle g a tio n s or denials in its own pleading; rather, its response must by affidavits or as o th e r w i s e provided in this rule set out specific facts showing a genuine issue for trial."
In other words, Cornelius's response to the sua sponte summary judgment order, even though late, will qualify as a response to both motions for summary judgment. Furthermore, all of the evidence will be considered, and not just the evidence referenced in the motions and briefs, because the evidence was ordered as part of a sua sponte summary judgment order.
R u le 56(e)(2). To avoid summary judgment, the non-moving party "must do more than s im p ly show that there is some metaphysical doubt as to the material facts." Matsushita Elec. In d u s . Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A genuine factual dispute exists if "a reasonable jury could return a verdict for the non-moving party." Damon v. Fleming S u p e rm a r k e ts of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999) (internal quotation marks an d citation omitted). I V . DISCUSSION A. L e g a l Standard for Cornelius's Federal Claim T o prove a § 1983 conspiracy, "`a plaintiff must show an underlying actual denial of [ h is ] constitutional rights.'" Hadley v. Guiterrez, 526 F.3d 1324, 1332 (11th Cir. 2008) (q u o tin g GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1370 (11th Cir. 1998)); a c c o r d Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir. 1990). Additionally, a plaintiff m u s t show that the defendants "reached an understanding to deny the plaintiff's rights." H a d le y , 526 F.3d at 1332 (citing Bendiburg, 909 F.2d at 468). Private parties can be liable f o r § 1983 violations if there is an "understanding" or "willful participation" between the p r iv a t e and state defendants.19 Bendiburg, 909 F.2d at 469.
There are three distinct tests for determining whether the state action required for a § 1983 action exists: "(1) the public function test; (2) the state compulsion test; and (3) the nexus/joint action test." Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1277 (11th Cir. 2003). The joint action test applies in this case. "Nothing more than an `understanding' and `willful participation' between private and state defendants is necessary to show the kind of joint action that will subject private parties to § 1983 liability." Bendiburg, 909 F.3d at 469.
T h e conspiracy claim alleges a conspiracy to violate the Fourth Amendment. C o rn e liu s alleges that Officer Kipp and Willis conspired to violate his Fourth Amendment rig h ts in order to "`run off' hunters in the area that [Cornelius] was hunting so as to preserve th e wildlife [upon] the property that Willis and [Officer] Kipp hunt game on a regular b a sis ."2 0 (Second Am. Compl. ¶ 23.) Cornelius accuses Officer Kipp of "point[ing] a deadly w e a p o n at [Cornelius], plac[ing] handcuffs on the person of [Cornelius], arrest[ing] and d e ta in [ in g ] [him] in an insulting manner without cause or justification," all to further Officer K ip p ' s interest in protecting game on the land. (Second Am. Compl. ¶ 24.) Cornelius also a c c u s e s Defendants of using "deadly force" during the arrest.2 1 (Second Am. Compl. ¶ 23.)2 2 "`Under the Fourth Amendment, an individual has a right to be free from `u n re a so n a b le searches and seizures'. . . .'" Case v. Eslinger, F.3d , 2009 WL 196842,
a t *5 (11th Cir. 2009) (quoting Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1137 (11th Cir. 2 0 0 7 )). A traffic stop is a constitutional seizure 2 3 under the Fourth Amendment if it is
Cornelius is suing Officer Kipp in both his official and individual capacities. (See Second Am. Compl. ¶¶ 21-25; Second Op. 3.) Damages suits under § 1983 against state officers in their official capacities, however, are barred. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); see, e.g., Simmons v. Conger, 86 F.3d 1080, 1085 (11th Cir. 1996). In his first amended compliant, Cornelius described the use of "deadly force" when he alleged a substantive Fourteenth Amendment violation (Doc. # 16), but in the Second Amended Complaint, he alleges the use of "deadly force" when describing the Fourth Amendment conspiracy violation (Second Am. Compl. ¶ 23). Officer Kipp raised the qualified immunity defense in his answer to the amended complaint (Doc. # 66, at 3), but did not address it at summary judgment. Therefore, qualified immunity will not be addressed for purposes of resolving Officer Kipp's summary judgment motion. "[S]topping an automobile and detaining its occupants constitute a `seizure' within the meaning of the [Fourth and Fourteenth Amendments]." Delaware v. Prouse, 440 U.S. 648, 653 (1979);
23 22 21
" ju s tif ie d by reasonable suspicion in accordance with Terry [v. Ohio, 392 U.S. 1 (1968)]." U n ited States v. Harris, 526 F.3d 1334, 1337 (11th Cir.) (per curiam), cert. denied, 129 S. C t. 569 (2008).2 4 Terry allows a "brief investigatory stop" of an individual if it is justified b y a "`reasonable, articulable suspicion based on objective facts that' an individual is e n g a g e d in criminal activity." 2 5 Harris, 526 F.3d at 1337 (citing Terry, 392 U.S. 1, and q u o tin g United States v. Powell, 222 F.3d 913, 917 (11th Cir. 2000)). According to this lo g ic, law enforcement officers may also conduct a stop of a moving car "based on a re a so n a b le suspicion that its occupants are violating the law." United States v. DiazL iz a r a z a , 981 F.2d 1216, 1221 (11th Cir. 1993). It is not necessary, however, that the officer involved in the stop "`actually and s u b je c tiv e ly had the pertinent reasonable suspicion.'" Harris, 526 F.3d at 1338 (quoting U n ite d States v. Nunez, 455 F.3d 1223, 1226 (11th Cir. 2006) (per curiam)). The standard is whether "`given the circumstances, reasonable suspicion objectively existed to justify [the in v e stig a to ry stop].'" Id. (emphasis added) (alteration in original) (quoting Nunez, 455 F.3d
see also Arizona v. Johnson, 129 S. Ct. 781, 784 (2009) ("For the duration of a traffic stop . . . a police officer effectively seizes `everyone in the vehicle,' the driver and all passengers." (quoting Brendlin v. California, 551 U.S. 249, 255 (2007))). Also, a roadblock crossing both lanes of traffic that stops a driver is a "seizure" within the Fourth Amendment. Brower v. County of Inyo, 489 U.S. 593, 598-99 (1989). The traffic stop also would be justified if there was probable cause that a traffic violation had occurred. Harris, 526 F.3d at 1337. Reasonable suspicion "`is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence.'" United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir.) (quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)), cert. denied, 128 S. Ct. 438 (2007).
a t 1226). In determining whether the requisite suspicion existed to justify the stop, courts " v ie w the totality of the circumstances in the light of the officers' special training and e x p e rie n c e." United States v. Smith, 201 F.3d 1317, 1323 (11th Cir. 2000). The reasonableness of an investigative stop depends not only on whether the action w a s justified, but also on "`whether it was reasonably related in scope to the circumstances w h ic h justified the interference in the first place.'" United States v. Street, 472 F.3d 1298, 1 3 0 6 (11th Cir. 2006) (quoting Terry, 392 U.S. at 19-20). In other words, the stop must be b o th justified by a reasonable suspicion as laid out in Terry and carried out in a reasonable m a n n e r. E.g., Tennessee v. Garner, 471 U.S. 1, 8 (1985) ("[I]t is plain that reasonableness d e p e n d s on not only when a seizure is made, but also how it is carried out."). A claim of excessive or deadly force used during a seizure is analyzed under an "`o b jectiv e reasonableness'" standard. Scott v. Harris, 550 U.S. 372, 381 (2007). "The F o u rth Amendment provides the right to be free from excessive force in the course of an in v e stig a to ry stop." Sharp v. Fisher, 532 F.3d 1180, 1183 (11th Cir. 2008) (per curiam). " `[ T ] h e right to make an . . . investigatory stop,'" however, "`necessarily carries with it the rig h t to use some degree of physical coercion or threat thereof to effect it,'" as long as the f o rc e is "`reasonably proportionate to the need for that force.'" Galvez v. Bruce, 552 F.3d 1 2 3 8 , 1242-43 (11th Cir. 2008) (quoting Lee v. Farraro, 284 F.3d 1188, 1197, 1198 (11th C ir. 2002)). An "unreasonable quantum of force" is one that is a "non-de minimis force u n re a s o n a b ly disproportionate to the need . . . in effecting an otherwise lawful [stop]."
B a s h ir v. Rockdale County, Ga., 445 F.3d 1323, 1332 (11th Cir. 2006) (first alteration a d d e d ). Whether the use of force was reasonable "`must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'" Crenshaw v . Lister, F.3d , 2009 WL 279812, at *6 (11th Cir. 2009) (per curiam) (quoting Graham
v . Connor, 490 U.S. 386, 396 (1989)). The analysis "requires careful attention to the facts a n d circumstances of each particular case." Id. (quoting Graham, 490 U.S. at 396). P o lic e action that exceeds the scope of an investigatory stop and becomes a full-blown a rre s t is unconstitutional if there is no probable cause to suspect criminal activity at the time o f the transition. Beck v. Ohio, 379 U.S. 98 (1964) ("Whether [an] arrest was constitutionally v a l id depends in turn upon whether, at the moment the arrest was made, the officers had p ro b a b le cause to make it . . . ."); see Street, 472 F.3d at 1304-07 (providing an example of th e different levels of justification needed for a Terry stop and one for probable cause). The E le v e n th Circuit has identified four factors that contribute to whether an investigative stop h a s become a full-blown arrest2 6 : "(1) the law enforcement purpose served by the detention; (2 ) the diligence with which the officers pursued the investigation; (3) the scope and in tru s iv e n e ss of the investigation; and (4) the duration of the detention." Id. at 1306 (quoting U n ite d States v. Hardy, 855 F.2d 753, 759 (11th Cir. 1988)). Determining whether and when a stop became an arrest requires balancing those factors, with a "focus on `whether the police d ilig e n tly pursued a means of investigation likely to confirm or dispel their suspicions
These factors are nonexclusive. Street, 472 F.3d at 1306.
q u ic k ly, during which time it was necessary to detain the [suspect].'" Id. (quoting United S ta tes v. Acosta, 363 F.3d 1141, 1147 (11th Cir. 2004)). The test is not one of "`rigid time limitations'" or "`bright line rules,'" but of " `c o m m o n sense and ordinary human experience.'" Hardy, 855 F.2d at 759 (quoting United S ta te s v. Sharpe, 470 U.S. 675, 685 (1985)). In Diaz-Lizaraza, the Eleventh Circuit noted th a t an investigatory stop does not become an arrest "merely because the agents drew their g u n s and patted [the suspect] down after he exited his [vehicle] and made a move toward his h ip ." 981 F.2d at 1221. If the nature of the suspected activity justifies concern for violence, d ra w in g weapons is a "reasonable way for the agents to protect themselves from a possible c o n c ea le d weapon." Id. (noting that drug dealing is "known to be extremely violent"); see a lso United States v. Hastamorir, 881 F.2d 1551, 1554, 1557 (11th Cir. 1989) (finding no v io la tio n when officers pointed guns at and handcuffed defendants suspected for drug d e a lin g and within feet of the officers because officers held a reasonable belief that suspects p rese n ted a potential threat to their safety); United States v. Roper, 702 F.2d 984, 988 (11th C ir. 1983) (holding that an officer did not act unreasonably during an investigative stop when h e drew his gun as he was alone approaching a vehicle with two adult males inside, one of w h o m was possibly a federal fugitive). Also, "neither handcuffing nor other restraints will a u to m a tica lly convert a Terry stop into a de facto arrest requiring probable cause." United S ta te s v. Kapperman, 764 F.2d 786, 791 n.4 (11th Cir. 1985); see also Hastamorir, 881 F.2d a t 1554, 1557 (described supra). See also Acosta, 363 F.3d at 1147 ("[A]n investigatory stop
d o e s not necessarily ripen into an arrest because an officer draws his weapon, handcuffs a s u s p e c t, orders a suspect to lie face down to the ground, or secures a suspect in the back of a patrol car." (citations omitted)). B. T h e Alleged Conspiracy to Violate the Fourth Amendment V ie w in g the facts in the light most favorable to Cornelius, there was no conspiracy b e tw e e n Officer Kipp and Willis to violate Cornelius's Fourth Amendment rights. Putting a sid e the question of whether Cornelius has presented sufficient evidence that there was an u n d e rs ta n d in g between Defendants to violate his rights, there was no underlying c o n stitu tio n a l violation. Willis was a friend of Officer Kipp's and had reported other types o f suspicious activity in the area on previous occasions. He called with information about p o te n tia lly criminal activity that he was in the process of observing. See United States v. P e tty , 601 F.2d 883, 888 (5th Cir. 1979) (crediting the phone call from an officer's friend w h o had provided aid on prior occasions as part of evidence that justified a reasonable s u s p ic io n ).2 7 Willis provided Officer Kipp not only with markers to identify the suspect but a ls o predictive information about the suspect's motions that Cornelius was driving from th e place where the criminal activity occurred. Plus, Willis was predicting the presence of a n d the movement of a car on a road that is not a bustling thoroughfare or a major artery, but is only dirt at the point where the hunting property was located. (Cornelius Dep. 93-94.) A d d itio n a lly, the car was traveling on the road before the full deer hunting season had
See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former Fifth Circuit issued prior to October 1, 1981).
s ta rte d .2 8 See Petty, 601 F.2d at 889-89 (finding that the presence of a passenger car, albeit a t odd hours in the day, traveling when it was not hunting season, on a road which has little u s e except during hunting season, and was rugged terrain, in an area where families along th e road know each other, and that had no signs indicating the road leads to other highways, w a s "inherently more suspicious" than cars on highways). The fact that Officer Kipp knew Willis personally and that Officer Kipp provided v e rif ia b le and verified information speaks to the ultimate question of whether the tip was re liab le. A tip from a known person, if that source is credible, is more reliable than a tip f ro m an anonymous caller. Officer Kipp testified that he took Willis's statements to be tru s tw o rth y, and Cornelius has provided no evidence that Willis was not a reliable source of in f o rm a tio n for Officer Kipp.2 9 Additionally, the predictive information Willis provided was v e rif ia b le and verified.3 0
Cornelius stated that it was bow hunting season, but not yet hunting season for guns. (Cornelius Dep. 79-80.) Willis testified that it was prior to hunting season, but on that weekend, it was permissible to take a child hunting with firearms. (Willis Dep. 21-22.) Willis had taken his son hunting that day. (Willis Dep. 21-22.) There is no evidence that Willis was not reliable. There is no evidence that he falsely reported crimes in the past, that he had an unreliable reputation in the community, or that he was not in a position to make the personal observations he was reporting. Plus, the only evidence that his motives were suspect is his making the calls to Officer Kipp. Cornelius alleges that Officer Kipp and Willis conspired to violate his rights for their personal benefit. Though this allegation goes to not only whether an agreement existed but also Officer Kipp's motive for the stop, if Officer Kipp's stop was constitutional from an objective point of view, it was constitutional whether or not Officer Kipp and Willis actualy conspired to stop Cornelius for their personal benefit. "The requisite reliability of a tip sufficient to support suspicion . . . has to be satisfied in one of two ways. Either the tip must come from a `known informant whose reputation can be assessed and who can be held responsible if [his] allegations turn out to be fabricated[,]' [o]r the content of the tip must include accurate predictive information which is verified by the subsequent observations of the detaining officer." Lindsey, 482 F.3d at 1285 (emphasis in original) (citations omitted) (quoting Florida v. J.L.,
B e c au s e Willis's information was reliable, it justified a reasonable suspicion of illegal n ig h t hunting or poaching. Willis told Officer Kipp that he noticed an unfamiliar car on the h u n tin g property, with a light shining out of the car, and that the driver said he had been h u n t in g . Even Cornelius acknowledges that when he picked up Johnston, it was "real close to dark," dark enough for his headlights to be turned on. (Cornelius Dep. 81.) Thus, at the tim e Officer Kipp stopped Cornelius, Officer Kipp had information that: an unfamiliar car d riv in g on a road back into town had driven onto private hunting property, and had exited a g a in when it was dark enough for headlights, with a flashlight shining from the car window. F u r th e rm o re , Officer Kipp testified that the area was known for "drinking and driving, illegal d ru g use, drive-through, weapons being discharged on a public road, [and] litter being d u m p e d ." (Kipp Dep. 37-38.) Stopping Cornelius based on an inchoate suspicion of co m m ittin g crimes generally would not be sufficient to justify the stop, but the area's n e g a tiv e reputation affects how a reasonable officer would interpret the other information.
529 U.S. 266, 270, 271 (2000)) (discussing, however, the reliability of a tip that a crime is about to be committed). "[R]equiring either that the informant be known and reliable from past dealings, or that the tipster, if anonymous, provide predictive future behavior, guards against the unwitting misuse of the police power." Id. at 1296. A known informant is a person whose tip is reliable because of the informant's "past delivery of accurate information," id. at 1295; known informants can be held accountable for providing misleading information, id. at 1296. Though Willis is a variation of a known informant as defined by these terms, he does not fit perfectly under either standard for a known informant or for an unknown informant providing verified predictive information but stands somewhere between the two. The fact that Willis provided information that the suspect may have been committing a crime and predicted his movements, which were then verified by the police, however, contributes to the reliability of his comments. See Lindsey, 483 F.3d at 1297 (describing J.L., 529 U.S. at 270-72). Given that Willis has provided some predictive information and that Officer Kipp knew him personally, Willis's tip is reliable.
T h u s, the information Willis provided is enough, under an objective standard, for a rea so n ab le, articulable suspicion that someone was illegally night hunting or poaching. If a n unfamiliar car enters and exits private hunting property in the evening hours, out of full h u n tin g season, and there is a flashlight shining out of the car window, that justifies an o b je c tiv e ly reasonable suspicion that someone is on that property to hunt deer at night, which is illegal regardless of whether the hunter has a right to be on the land. The information also justifies an objectively reasonable suspicion of poaching. Whether those suspicions were O f f ic e r Kipp's actual suspicions is an irrelevant inquiry. T h e manner in which Cornelius was stopped was also reasonable. Cornelius claims th a t he was stopped by a roadblock. Cornelius did not try to avoid the roadblock. The ro a d b lo c k was neither sudden nor concealed. The roadblock was not designed to cause a car f le e in g the police to stop. Cf. Beshers v. Harrison, 495 F.3d 1260, 1269 (11th Cir. 2007) (d e sc rib in g as deadly force a roadblock set up by the police who placed a police vehicle right in the truck's path as the suspect was fleeing, causing it to swerve, and noting that it was the p o lice car's maneuver and defendant's being forced to brake and swerve that constituted " d e a d ly force"). The roadblock was nevertheless a seizure. In Brower v. County of Inyo, 489 U.S. 593 (1 9 8 9 ), the Supreme Court refused to distinguish for purposes of determining a "seizure" b etw ee n a "roadblock that is designed to give the oncoming driver the option of a voluntary s to p (e.g., one at the end of a long straightaway), and a roadblock that is designed precisely
t o produce a collision (e.g., one located just around a bend)." Id. at 598. The Court was c a re f u l to point out, however, that its finding "[was] not to say that the precise character of th e roadblock is irrelevant to further issues in the case," namely whether the seizure was u n re a s o n a b le . Id. at 599. The Court noted that in the case before it, the unreasonableness o f the seizure hinged upon the roadblock's setup, which was "in such manner as to be likely to kill [the suspect]." Id. The Court specifically stated that "headlights were used to blind th e oncoming driver." Id. The roadblock involved an eighteen-wheel tractor-trailer in both la n e s of a two-lane highway in the suspect's path and was "effectively concealed" behind a c u rv e and unilluminated, and there was a police car with its headlights on to blind the suspect o n his approach. Id. at 594. The Court differentiated this roadblock from a scenario where a driver had the opportunity to voluntarily stop at a roadblock, but negligently or intentionally d ro v e into it, in which case, the Court noted, the police would not be liable for any ensuing d e a th . Id. at 599. The roadblock in Brower was markedly different and more dangerous than the one a lleg e d here. There is no indication that the roadblock Cornelius faced was after a bend in th e road, or that the law enforcement officers used any means to cause Cornelius to crash. S e e Seekamp v. Michaud, 109 F.3d 802, 807 (1st Cir. 1997) (similarly distinguishing in its re a so n a b le n e ss analysis a roadblock from that in Brower). Cornelius testified that the police c a rs were facing him with their blue lights flashing and headlights on when he came upon
th e roadblock. (Cornelius Dep. 115-16.) Thus, even though the seizure commenced at the ro a d b lo c k , it is no less justified, and was not unreasonable in its execution. The physical coercion used during the stop was also objectively reasonable. Officer K ipp testified that he observed Cornelius fumbling with something out of Officer Kipp's s ig h t line. This observation and Cornelius's quick exit made Officer Kipp suspicious, based u p o n his training and experience, that Cornelius had a weapon. Johnston claims that C o rne liu s had his hands "up" or on the steering wheel the entire time, but Johnston's af fid av it says nothing about whether his hands were up. Officer Kipp did not recall either p a rty putting his hands up (Kipp Dep. 46) and testified that he yelled "get your hands up" as a n order directed at the vehicle (Kipp Dep. 45-46). Thus, even if the facts are viewed in the lig h t most favorable to Cornelius, they do not contradict Officer Kipp's testimony that the c a r 's occupants were not complying with orders.31 A ss u m in g , however, that Cornelius's hands were visible and he was complying with o rd e rs , if Cornelius began a quick exit of the vehicle, that would have justified drawing the w e a p o n , given the nature of the suspected activity. Even if, however, Cornelius's exiting the c a r had nothing to do with pointing the weapons, 3 2 whichever officer had the gun pointed in C o rn e liu s 's direction did not unreasonably draw the weapon. The nature of the crimes that
Incidentally, law enforcement officers "may as a matter of course order a driver of a lawfully stopped car to exit his vehicle." Maryland v. Wilson, 519 U.S. 408, 410 (1997) (citing Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam)). Cornelius claims that a gun was pointed at the car window, which must have been before or as he exited the car.
C o rn e l iu s was suspected of committing, that it was nighttime, that the stop was in a rural lo c a t io n , and that there were two male suspects in the car all justify drawing weapons. In d e e d , even if Cornelius did nothing additionally to raise Officer Kipp's suspicions, the fact th a t night hunting and poaching involve weapons and that a suspicion of either offense was re a so n a b ly justified, the drawing of weapons did not transform the stop into an arrest, e s p e c ia lly given the time of day and the fact there were two male suspects in the car. Nor does handcuffing change the analysis. Officers are permitted to take protective m e a s u r e s for their safety. Handcuffing does not transform an investigatory stop into an arrest if the handcuffing was reasonable under the circumstances. Again, illegal night hunting and p o a c h in g are crimes that involve weapons. Cornelius was within reach of the car and it was u n c le a r whether he had a weapon. Officer Kipp could have patted down Cornelius instead, b u t considering that another passenger was present, Cornelius's proximity to the car, the n a tu re of the crimes suspected, the fact that it was nighttime, and the pace at which the s itu a t io n unfolded, it was not unreasonable for Officer Kipp to briefly detain Cornelius, e sp e c i ally considering that he assured Cornelius that he was only being detained, not a r r e s t e d .3 3 A ls o , the force Officer Kipp used to handcuff Cornelius laying him over the trunk a n d leaving him there for what Cornelius said was "long enough" but not "very long" ( C o r n e liu s Dep. 120) was de minimis and not excessive. In Durruthy v. Pastor, 351 F.3d
For the same reason, handcuffing Cornelius was not excessive force as there was the requisite justification for the force.
1 0 8 0 (11th Cir. 2003), the Eleventh Circuit held that the officer's forcing the defendant to th e ground and placing him in handcuffs was de minimis force, even assuming it was u n n e c e s s a ry. Id. at 1094. The court also found that the physical restraint and handcuffing w e re lawful. Id. In another case, the Eleventh Circuit held that handcuffing a suspect too tig h tly and too long was de minimis force. Vinyard v. Wilson, 311 F.3d 1340, 1348 n.13 (1 1 th Cir. 2002) (interpreting Gold v. City of Miami, 121 F.3d 1442, 1446 (11th Cir. 1997) (p e r curiam), which is less clear, however, about whether that holding satisfies the c o n stitu tio n a l violation or "clearly established" prong of qualified immunity). "`[T]he a p p lic a tio n of de minimis force, without more, will not support a claim for excessive force i n violation of the Fourth Amendment.'" Durruthy, 351 F.3d at 1094 (quoting Nolin v. Isb e ll, 207 F.3d 1253, 1257 (11th Cir. 2000)). In short, in light of the following authorities, l e a n in g Cornelius over the trunk and handcuffing him for a short time was not excessive f o rc e . T h e focus for determining whether an investigative stop became an arrest is "`whether th e police diligently pursued a means of investigation likely to confirm or dispel their s u s p ic io n s quickly, during which time it was necessary to detain the defendant.'" Street, 472 F .3 d at 1306 (quoting Acosta, 363 F.3d at 1147). The purpose of the detention, as discussed, w a s valid. Officer Kipp diligently pursued that purpose by immediately pulling aside the
s u s p e c t, checking the car for evidence of illegal night hunting, 3 4 and following up on C o rn e liu s 's protestations that he had a right to hunt on the land.35 A f te r detaining Cornelius, some of the officers performed a search that, based upon the details of Cornelius's observations, focused only on finding weapons for hunting. In M ic h ig a n v. Long, 463 U.S. 1032 (1986), the Court articulated the scope that a search during a Terry stop can reach: O u r past cases indicate then that protection of police and others can justify p ro te c tiv e searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially h a z ard o u s , and that danger may arise from the possible presence of weapons in the area surrounding a suspect. These principles compel our conclusion that th e search of the passenger compartment of an automobile, limited to those a re a s in which a weapon may be placed or hidden, is permissible if the police o f f ice r possesses a reasonable belief based on "specific and articulable facts w h ich , taken together with the rational inferences from those facts, reasonably w a rra n t" the officers in believing that the suspect is dangerous and the suspect m a y gain immediate control of weapons. "[T]he issue is whether a reasonably p r u d e n t man in the circumstances would be warranted in the belief that his
Cornelius has not alleged sufficient evidence to move forward at summary judgment that the stop was immeasurably extended, or generally too long. His off-hand comment that the stop may have been two hours is not credible when considered in the context of the rest of his testimony, immediately proceeding, that the stop lasted fifteen to twenty minutes. He also followed the comment that the stop lasted two hours by noting he was not honestly sure how long the stop lasted. Even if the stop was justified for suspicion of illegal night hunting only, that Officer Kipp discussed information relevant to poaching with Cornelius does not change the legality of the stop. Police questioning during a detention on matters separate from the basis of the detention does not constitute a "seizure" and cannot be the basis for a Fourth Amendment violation, so long as that questioning does not "measurably extend the stop's duration." Arizona, 129 S. Ct. at 788 (citing Muehler v. Mena, 544 U.S. 93, 100-01 (2005)) (noting also that "[n]othing occurred . . . that would have conveyed to [the suspect] that, prior to the frisk, the traffic stop [which was the basis for detention in that case] had ended or that he was otherwise free `to depart without police permission,'" id. (quoting Brendlin, 551 U.S. at 257)).
s a f ety or that of others was in danger." If a suspect is "dangerous," he is no le ss dangerous simply because he is not arrested. Id . at 1049-1050 (citations and footnote omitted); accord Riley v. City of Montgomery, Ala., 1 0 4 F.3d 1247, 1250-51 (11th Cir. 1997) ("A warrantless weapons search of a suspect and h is car, pursuant to a limited detention, does not violate the Fourth Amendment if the police h av e reasonable articulable suspicion to justify such a limited detention. . . . [T]he police are e n title d to search the passenger compartment of the detainee's vehicle for weapons."). The s e a rc h did not exceed the scope required to assuage that danger. Cornelius noted that the p o lice did not search the trunk or glove compartment and did not rummage through the car.3 6 T h e s e facts signal that the search was done, at least in part, for protective purposes. T h e re f o re , the scope was appropriately limited.37 B e c au s e Officer Kipp's investigatory stop of Cornelius was justified, did not tra n sf o rm into a full-blown seizure, and was reasonably carried out, without using excessive
It is not even clear that Officer Kipp was part of or directed the search.
Cornelius is not clear on whether the search occurred before or after he was allegedly handcuffed. However, even though Cornelius's and Johnston's accounts differ on whether Johnston was ordered out of the car, neither claims that Johnston was handcuffed. Thus, one suspect was still free. When a suspect is detained, the police may search the areas of the car where the suspect has immediate control if the suspect poses a danger, e.g., upon reentering the vehicle. Long, 463 U.S. at 1050. In Long, the area was rural, the stop was at night, and the police had seen a long knife in the car. Id. Though the suspect in Long had appeared intoxicated, he was not suspected, as Cornelius and Johnston were, of crimes involving weapons. See id. Also, for searches incident to arrest, which though more expansive, are limited to, like the search discussed in Michigan for Terry stops, the "immediate" grasp area of the suspect, those searches may be upheld, under certain circumstances, even when the suspects are handcuffed. United States v. Bennett, F.3d , 2009 WL 130181, at *3-4 (11th Cir. 2009). Though handcuffing may make it difficult to reach a weapon, it does not make it impossible. Id. at *4. The same logic applies here, where "[a] suspect has a leg up on agents . . . because he knows where hidden weapons can be found, and that advantage could aid even a restrained person in reaching a weapon before agents can react." Id.
f o rc e , and because the search was also justified and appropriately limited, summary judgment is due to be granted on the federal claim against Officer Kipp and Willis. C. S u p p le m e n ta l State-Law Claims A district court may decline to exercise supplemental jurisdiction over state-law c la im s if it has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). For that reason, the state-law claims are due to be dismissed. V . CONCLUSION A c c o rd in g ly, it is ORDERED that: (1 ) O f f ice r Kipp's motion for summary judgment (Doc. # 71) is GRANTED as to
th e § 1983 conspiracy claim in Count One against Officer Kipp (Second Am. Compl.). The m o tio n otherwise is DENIED as moot. (2) W illis ' s motion for summary judgment (Doc. # 79) is GRANTED as to the
§ 1983 conspiracy claim in Count One against Willis (Second Am. Compl.). The motion o th e rw ise is DENIED as moot. (3 ) T h e remaining claims, which are brought under state law, are DISMISSED
p u rs u a n t to 28 U.S.C. § 1367(c)(3). An appropriate judgment will be entered. DONE this 26th day of February, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE
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