Cheatham v. City of Tallassee et al

Filing 58

MEMORANDUM OPINION AND ORDER as follows: 1. Defendant Redd's 49 Motion to Strike is hereby GRANTED in part and DENIED in part as further set out in the opinion and order. 2. Defendant Redd's 37 Motion for Summary Judgment is GRANTED in part and DENIED in part as further set out in the opinion and order. 3. The other Defendants' 31 Motion for Summary Judgment is GRANTED as to all counts, and judgment will be entered in favor of Defendants City of Tallassee, Tallassee Police D epartment, and James Rodgers, Doug Walters, and C. S. Howard in their official and individual capacities as to all counts. 4. This case will proceed on Plaintiff's § 1983 claims against J. L. Redd, in his individualcapacity, based on excess ive force, and Plaintiffs state law claims against J. L. Redd, in his individual capacity based on assault, battery, and outrageous conduct. Signed by Honorable Judge W. Harold Albritton, III on 9/7/2012. (Attachments: # 1 Civil Appeals Checklist)(dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

FERMON STEWART CHEATHAM,

)
)
Plaintiff,
)
)
v.
)
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CITY OF TALLASSEE, and TALLASSEE
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POLICE DEPARTMENT, and
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TALLASSEE CHIEF OF POLICE, JAMES
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RODGERS, in his official and individual
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capacities, OFFICER J.L. REDD, in his official )
and individual capacities, and OFFICER
)
DOUG WALTERS, in his official and
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individual capacities, and OFFICER C. S.
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HOWARD, in his official and individual
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capacities,
)
)
Defendants.
)

CIVIL ACTION NO. 2:11-cv-672-WHA
(WO)

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This case is before the court on two Motions for Summary Judgment and a Motion to
Strike (Doc. # 49). The first summary judgment motion was filed by Defendants City of
Tallassee (“City”), City of Tallassee Police Department, City of Tallassee Chief of Police James
Rodgers (“Rodgers”), Officer Doug Walters (“Walters”), and Officer Chris Howard (“Howard”),
on July 5, 2012 (Doc. # 31). The second summary judgment motion was filed by Defendant J.L.
Redd (“Redd”) on July 5, 2012 (Doc. # 37). The Plaintiff, Fermon Stewart Cheatham
(“Cheatham”), filed a Complaint on August 19, 2011 (Doc. # 1), alleging nine causes of action1:
1

Each count contains prayers for relief asking for judgment against all Defendants
regardless of which defendant’s behavior actually serves as the basis of the particular count. The

Count I – general allegations of civil rights violations brought pursuant to 42 U.S.C. § 1983
against Redd; Count II – an excessive force claim brought pursuant to 42 U.S.C. § 1983 against
Redd; Count III – a departmental liability claim brought pursuant to 42 U.S.C. § 1983 against the
City, Police Department, and Rodgers; Count IV – a state law assault claim brought against the
City, Police Department, Rodgers, and Redd; Count V – a state law battery claim brought against
the City, Police Department, Rodgers, and Redd; Count VI – a state law outrageous conduct
claim brought against the City, Police Department, Rodgers, and Redd; Count V2 – a state law
civil conspiracy claim brought against all Defendants; Count VII – a negligence claim brought
against all Defendants; and Count VIII – a negligent infliction of emotional distress claim
brought against all Defendants. Cheatham filed a Response to the Defendants’ Motions for
Summary Judgment (Doc. # 40)3 on July 25, 2012, which was essentially a reformatted copy of
his Complaint. The Defendants filed Replies to Cheatham’s Response on August 1, 2012 (Doc.
# 47) and on August 2, 2012 (Doc. # 48).
The court has federal question subject matter jurisdiction over the federal claims and
supplemental jurisdiction over Cheatham’s assault, battery, outrage, civil conspiracy, negligence,
and negligent infliction of emotional distress claims. See 28 U.S.C. § 1331; 28 U.S.C. § 1367.

court will assume that each count is brought only against those individuals whose conduct forms
the basis of the count.
2

Cheatham appears to have misnumbered some of the counts from his Complaint. The
court will utilize the same numbering scheme as Cheatham for the sake of consistency and
clarity.
3

Although there were two motions for summary judgment filed by the Defendants in this
case, Cheatham only filed one brief in response. The court will assume that Cheatham intended
for his Response Brief to apply to both pending motions for summary judgment.
2

For the reasons to be discussed, Redd’s Motion for Summary Judgment is due to be
GRANTED in part and DENIED in part, and the Defendants City, Tallassee Police Department,
Rodgers, Walters, and Howard’s Motion for Summary Judgment is due to be GRANTED in full.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper if “there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
The party asking for summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion,” relying on submissions “which it believes
demonstrate the absence of a genuine issue of material fact.” Id. at 323. Once the moving party
has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a
genuine dispute for trial. Id. at 324.
Both the party “asserting that a fact cannot be” and a party asserting that a fact is
genuinely disputed must support their assertions by “citing to particular parts of materials in the
record,” or by “showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1)(A), (B). Acceptable materials under Rule 56(c)(1)(A) include
“depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials.”
To avoid summary judgment, the nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
3

Radio Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the nonmovant must
be believed and all justifiable inferences drawn in its favor. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986).
After the nonmoving party has responded to the motion for summary judgment, the court
shall grant summary judgment “if the movant shows 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).
III. FACTS
The following is an account of the relevant facts with all justifiable inferences drawn in
favor of Cheatham4:
On April 25, 2010, an anonymous informant notified the Tallassee Police Department
that a possibly intoxicated driver was in the downtown Tallassee area operating a Toyota pickup
truck. Redd, a Tallassee Police Department officer, who was accompanied by his civilian
brother-in-law for a ride-along, was on patrol in that area, and shortly after receiving the report
about the potentially intoxicated driver, Redd observed a truck matching the description he had
been given. After following the truck for a short distance, Redd observed the driver of the truck
fail to use his turn signal before making a turn. Redd followed the truck to a nearby residence
located at 201 2nd Street in Tallassee, Alabama. Once there, the driver stopped the truck and got
4

Because Cheatham’s Response Brief largely failed to comply with the court’s
instructions to cite to specific evidence in the record (Doc. # 36), the court draws these
undisputed facts almost exclusively from the Defendants’ briefs in support of the Motions for
Summary Judgment. Cheatham did not remedy this deficiency in his Response to Redd’s Motion
to Strike (Doc. # 51), but the court allowed Cheatham to file a Supplemental Response (Doc. #
53) with specific citations to the record. Thus, the court incorporates the disputed facts from
Cheatham’s Supplemental Response to Redd’s Motion to Strike and from the portions of
Cheatham’s affidavit submitted with his Response Brief that are not due to be stricken, as
explained below.
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out. Redd has testified that he saw Cheatham exit the driver’s side door of the truck; however,
Cheatham has testified that he was in fact not driving due to his intoxicated state. Cheatham’s
girlfriend has confirmed Cheatham’s story by explaining that she was actually driving on April
25, 2010. Two other individuals at the residence, Cheatham’s ex-wife and Cheatham’s son, have
provided contradictory testimony. Cheatham’s son has testified that he saw Cheatham’s
girlfriend in the passenger seat of the truck, and Cheatham’s ex-wife testified that she saw
Cheatham driving when he arrived at her residence located on 201 2nd Street. It is undisputed,
however, that Cheatham pled guilty to driving under the influence related to this event and did
not appeal his conviction.
Cheatham does not dispute that he had consumed a substantial amount of alcohol on
April 25, 2010, and also that he continued consuming alcohol on the drive over to his ex-wife’s
residence. Once at the residence, Cheatham approached his son and spoke to him. Shortly
thereafter, Cheatham walked to the back of the residence to retrieve some fencing wire. It was
not until Cheatham returned from the back of the residence with the wire that he noticed Redd’s
police car parked in the driveway. Redd testified that when he arrived at the residence, he waited
in his patrol car in order to run the truck’s license plate number. After he had run Cheatham’s
license plate, Redd exited his patrol car and watched as Cheatham walked back to his truck.
Redd noticed that Cheatham’s movement was unsteady and that he smelled of alcohol.
Redd approached Cheatham and asked him who was operating the truck, but Cheatham’s
girlfriend exited the truck and told the officer that she had been driving the truck. At this time,

5

Redd called for assistance because of the number of people5 at the scene. After calling for
assistance, he approached Cheatham in order to detain and question him. Redd asked Cheatham
if he was carrying any weapons, and Cheatham answered in the affirmative and handed over a
pistol and a knife without incident. Redd then handcuffed Cheatham and began to lead him back
to the patrol car so that Cheatham would not have to perform the field sobriety test on grass.
Once Redd had taken Cheatham back to his patrol car, he offered to perform a field
sobriety test. Cheatham refused. Redd then put Cheatham under arrest for driving under the
influence of alcohol and possession of a concealed weapon. According to Cheatham, Redd next
pushed him to the ground6 and stood over Cheatham, kicking or striking him in the face, mouth,
and throat. This caused extensive damage to Cheatham’s face, including the loss of some of his
teeth. According to Redd, when they arrived at the patrol car, he began to frisk Cheatham’s
boots. While Redd was occupied, Cheatham pulled a pocket knife from his back pocket and
began to open it. Redd saw this act and began to struggle with Cheatham over the knife. The
two men fell to the concrete. During the fall, Redd was above Cheatham, and he landed on
Cheatham’s face, driving it into the concrete. Cheatham denies pulling a knife while in
handcuffs, and he maintains that Redd attacked him with no provocation.

5

In addition to Cheatham and his girlfriend, members of Cheatham’s family, including
his ex-wife and his son, were also at the residence.
6

During his deposition Cheatham stated that the fall to the ground “happened so fast” that
he “couldn’t even keep up with it.” Cheatham Dep. 114:16–114:17. He testified at separate
intervals that “a huge weight”caused him to fall down, that it was “almost like [Redd] pushed me
down,” and finally that “Redd pushed me down.” Id. at 114:18–114:20; 116:23. However,
Cheatham consistently maintained that once on the ground, Redd kicked or punched him in the
throat.
6

Defendant Walters, another Tallassee Police Department officer, who had arrived on the
scene in response to Redd’s call for assistance, was questioning the other family members at the
scene and did not see the struggle occur. Walters did not become aware that the two men were
struggling until Redd called to him for aid. Moreover, Cheatham has testified that he is not
aware of any wrongful conduct on behalf of Walters.
After Cheatham was subdued, he was placed in the patrol car and was taken to the police
station. He has testified that he initially refused medical treatment from paramedics despite the
extensive damage to his face. However, because of the paramedics’ recommendation, Cheatham
was transported to the hospital for treatment. After Cheatham was released, he was taken back to
the police station. At the station, Cheatham changed into a jail uniform, and Defendant, Officer
Howard, who had been taking a blood sample from Cheatham, found a bag of marijuana in
Cheatham’s boot.
Cheatham was charged with and convicted in municipal court of possession of marijuana,
driving while under the influence of alcohol, failure to use a turn signal, driving with a revoked
driver’s license, and carrying a concealed firearm. Cheatham did not appeal any of the five
convictions.
IV. DISCUSSION
1. Motion to Strike
Defendant Redd filed a Motion to Strike Cheatham’s affidavit (Doc. # 40-1) which was
filed in support of his opposition to the pending Motions for Summary Judgment. Redd raises
multiple arguments in support of his Motion to Strike. Redd argues that Cheatham lacks
personal knowledge of the facts in his affidavit, that the affidavit contains speculation, that the
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affidavit contains inadmissible hearsay, and, most important, that the affidavit directly
contradicts earlier sworn deposition testimony from Cheatham. Where statements in the affidavit
directly contradict Cheatham’s deposition, those statements cannot serve to create a genuine
dispute of material fact. However, where the affidavit is not inherently inconsistent with
Cheatham’s deposition testimony, those statements will be considered on summary judgment.
The Eleventh Circuit has explained that courts “may disregard an affidavit submitted
solely for the purpose of opposing a motion for summary judgment when that affidavit is directly
contradicted by deposition testimony.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234,
1240 n.7 (11th Cir. 2003). Similarly, “[w]hen a party has given clear answers to unambiguous
questions which negate the existence of any genuine issue of material fact [for summary
judgment], that party cannot thereafter create such an issue with an affidavit that merely
contradicts, without explanation, previously given clear testimony.” Van T. Junkins & Assocs.,
Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984). “Such an affidavit would be a
sham.” McCormick, 333 F.3d at 1240 n.7.
However, courts “apply this rule sparingly because of the harsh effect [it] may have on a
party’s case.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir. 1987). To disregard
every variation in a party’s testimony as a sham “would deprive the trier of fact of the traditional
opportunity” to make credibility determinations. Id. Thus, “our cases require the court to find
some inherent inconsistency between an affidavit and a deposition before disregarding the
affidavit.” Id. “If no inherent inconsistency exists, the general rule [allows] an affidavit to create
a genuine issue even if it conflicts with earlier testimony in the party’s deposition.” Id. (internal
citation omitted).
8

Of the facts presented in Cheatham’s affidavit, only two are material to the claims he has
alleged. First, in Cheatham’s deposition he explains that the Tallassee police officers made him
see paramedics because of the injuries he sustained during his fall to the ground. Cheatham Dep.
123:21–124:20. However, in his affidavit, Cheatham testifies that “I told the officers I needed to
go to the emergency room, but they refused to take me at first, but when I would not stop
bleeding they finally agreed to take me to Tallassee Community Hospital.” (Doc. # 40-1 at 2).
This portion of Cheatham’s affidavit testimony is due to be stricken because it directly
contradicts his deposition testimony. Cheatham’s affidavit attempts to create an dispute of fact
about the policies used by Tallassee in dealing with individuals with injuries who are in custody,
but his position is “inherently inconsistent” with his previous deposition testimony. Therefore,
the portions of Cheatham’s affidavit concerning his medical treatment are hereby stricken.
The second instance material to Cheatham’s claims stems from the events surrounding
the struggle between Redd and Cheatham. In his affidavit, Cheatham testifies that there were
multiple officers around him and that one of them threw him to the asphalt, and then he was
either kicked or punched in the throat by one of the officers. Id. Cheatham’s deposition
testimony gives a less definite account: he first testifies that he did not have any independent
recollection of Redd, or anyone else, pushing him to the ground. Cheatham Dep. 110:16–111:6.
Later in his deposition, Cheatham states that “it happened so fast . . . I couldn’t even keep up
with it.” Id. at 114:16–114:17. However, Cheatham next testifies that, although he does not
know whether Officer Redd was kicking or hitting him, he was “doing something” that caused
Cheatham to lose teeth. Id. at 114:23–115:3. Next, Cheatham definitively states that Redd
pushed him to the ground and began punching or kicking him. Id. at 116:23–117:19.
9

Although these accounts vary, the contradictions between Cheatham’s affidavit and his
deposition do not rise to the level of “inherent inconsistency” needed to strike Cheatham’s
affidavit testimony. See Rollins, 833 F.2d at 1530. Cheatham’s answers to deposition questions
about the arrest are not “clear answers to unambiguous questions,” which are required in this
circuit to disregard an affidavit as a sham. See Van T. Junkins & Assocs., Inc., 736 F.2d at 657.
To make such a determination at the summary judgment stage would usurp the role of the trier of
fact to resolve credibility issues. Furthermore, Redd’s other arguments¯that Cheatham lacks
personal knowledge of the facts in his affidavit, that the affidavit contains speculation, and that
the affidavit contains inadmissible hearsay¯do not apply to these statements. Therefore, the
court will consider the portion of Cheatham’s affidavit concerning the events immediately
surrounding his arrest in ruling on the Defendants’ Motions for Summary Judgment.
As to the remainder of Cheatham’s affidavit, any other statements are not material to
Cheatham’s claims. Thus, the motion to strike is due to be denied as moot regarding those
portions.
The court also notes that Cheatham supplied the court with evidentiary submissions, in
addition to his affidavit, when he filed his Response Brief. However, Cheatham failed to
specifically designate any portion of those documents related to any material issues. Therefore,
he has failed to follow the instructions set out in the court’s July 5, 2012 Order (Doc. # 36) and
July 9, 2012 Order (Doc. # 39). The court ordered that “[n]o parts of documents not so
specifically designated will be considered.” (Doc. # 36 at 1); (Doc. # 39 at 1). It is not the court’s
role to go through documents in search for support of a party’s case. Cheatham has been given
multiple opportunities to submit specific evidence upon which he seeks to rely. Therefore, the
10

court will disregard all of the Plaintiff’s evidentiary submissions which fail to adhere to the
court’s orders.
2. Motions for Summary Judgment
In order to create a genuine dispute of material fact, Cheatham must not rely on “mere
conclusions and unsupported factual allegations [as they] are legally insufficient to defeat a
summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citing Bald
Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir.1989)). As explained above,
Cheatham’s Response Brief is simply a reformatted version of his Complaint, devoid of any
citations to the record concerning any material facts. The court ordered Cheatham to supplement
his response to Redd’s Motion to Strike, as his first response similarly did not contain any
citations to the record. After granting in part Redd’s Motion to Strike Cheatham’s affidavit, the
court has considered the small amount of evidence Cheatham successfully cited in opposition to
the Defendants’ Motions for Summary Judgment and Redd’s Motion to Strike. For reasons to be
discussed below, the court concludes that Cheatham has created a genuine dispute of material
fact as to some of his claims against Redd, but not against the other Defendants.
The court will now consider the Defendants’ legal arguments in light of the evidence
properly before the court.

A. All Claims as to Tallassee Police Department
The Defendants contend that in each count of the Complaint, Cheatham seeks damages
from each named defendant. The Defendants argue that the Tallassee Police Department is due
summary judgment in its favor to whatever extent the Complaint seeks damages or redress from
11

it because the Tallassee Police Department is not a proper legal entity capable of being sued. See
Dean v. Barber, 951 F.2d 1210, 1214–15 (11th Cir. 1992) (“Sheriff’s departments and police
departments are not usually considered legal entities subject to suit.”); see also Hawkins v. City
of Greenville, 101 F. Supp. 2d 1356, 1363 (M.D. Ala. 2000). The court agrees, and accordingly,
Tallassee Police Department is due summary judgment in its favor as to all claims brought
against it.

B. Counts I and II – Violation of Constitutional Rights
i. As to Redd
Plaintiff’s Count I alleges a 42 U.S.C. § 1983 claim based on an unreasonable search and
seizure, denial of due process, and excessive force against Redd, and Count II raises a § 1983
excessive force claim against Redd. Redd has asserted qualified immunity as to both claims.
Qualified immunity is a protection designed to allow government officials to avoid the
expense and disruption of trial. Ansley v. Heinrich, 925 F.2d 1339, 1345 (11th Cir. 1991). As a
preliminary matter, the court must determine whether the public official was acting within the
scope of his discretionary authority at the time the allegedly wrongful acts occurred. See Rich v.
Dollar, 841 F.2d 1558, 1563 (11th Cir. 1988). Once it is established that a defendant was acting
within his discretionary authority, the court must determine whether “[t]aken in a light most
favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated
a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). “[I]f a constitutional right
would have been violated under the plaintiff’s version of the facts,” the court must then

12

determine “whether the right was clearly established.” Wood v. Kesler, 323 F.3d 872, 878 (11th
Cir. 2003) (internal citation omitted).
Requiring that a constitutional right be clearly established means that liability only
attaches if “[t]he contours of the right [violated are] sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” United States v. Lanier, 520 U.S.
259, 270 (1997). In other words, a defendant is entitled to “fair warning” that his conduct
deprived his victim of a constitutional right. Hope v. Pelzer, 536 U.S. 730, 741 (2002).
In Vinyard v. Wilson, 311 F.3d 1340, 1350–53 (11th Cir. 2002), the Eleventh Circuit
articulated three ways in which individual state defendants can receive “fair notice” that their
conduct violates clearly established law. First, the words of a federal statute or constitutional
provision may be specific enough “to establish clearly the law applicable to particular conduct
and circumstances and to overcome qualified immunity, even in the total absence of case law.”
Id. at 1350 (emphasis in original). The Eleventh Circuit considers a case in this category an
“obvious clarity case.” Id. at 1350.
Second, if the conduct at issue is not so egregious as to violate the Constitution or a
federal statue on its face, the court must turn its attention to case law that espouses “broad
statements of principle . . . [that] are not tied to particularized facts.” Id. at 1351. In these types
of cases, courts will declare “X Conduct” unconstitutional regardless of the specific factual
situation. Id. “[P]ut differently, the precise facts surrounding ‘X Conduct’ are immaterial to the
violation”; thus, these decisions can “clearly establish law applicable in the future to different
sets of detailed facts.” Id.

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Third, courts must look to cases that tie a particular type of conduct to the specific facts
of the case. Id. With these cases, courts must examine case law stating that “Y Conduct” is
unconstitutional in “Z circumstances.”7 Id. If the circumstances facing the official are
“materially similar” to those of the fact-specific case, this precedent can clearly establish the
applicable law and qualified immunity will not be warranted. Id. at 1352.
In this circuit, the law can be “clearly established” for qualified immunity purposes only
by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or when relevant the
highest court of the state where the case arose. Thomas ex rel. Thomas v. Roberts, 323 F.3d 950,
953 (11th Cir. 2003).
In the present case, it is clear that Redd was acting within his discretionary function in
arresting Cheatham. His actions were “carried out in the performance of his normal job duties”
and were “within the authority delegated to him” as a police officer. Rich v. Dollar, 841 F.2d
1558, 1564 (11th Cir. 1988). Because Redd’s allegedly illegal acts, “if done for a proper
purpose, would be within, or reasonably related to, the outer perimeter of [his] discretionary
duties,” Redd satisfies the preliminary inquiry of the qualified immunity analysis. Harbert Int’l
v. James, 157 F.3d 1271, 1282 (11th Cir. 1998). Thus, the burden shifts to Cheatham to show
that Redd violated a clearly established constitutional right.
It is unclear, based on Cheatham’s Complaint and Response Brief, in what ways Redd
engaged in an illegal search and seizure during the April 25, 2010 arrest, but it is clear that “[t]he
Fourth Amendment’s guarantee against unreasonable searches and seizures encompasses the

7

The Eleventh Circuit noted that most case law will fall into this third category. Vinyard,
311 F.3d at 1351–52.
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right to be free from arrest without probable cause.” Crosby v. Monroe Cnty., 394 F.3d 1328,
1332 (11th Cir. 2004). “Probable cause is defined in terms of facts and circumstances sufficient
to warrant a prudent man in believing that the suspect had committed or was committing an
offense.” Id. (quoting Gerstein v. Pugh, 420 U.S. 103, 111 (1975)) (internal marks and citations
omitted). It is also clear that an officer need only demonstrate that he had arguable probable
cause in order to receive qualified immunity for an alleged unlawful arrest. See Jones v. Cannon,
174 F.3d 1271, 1283 (11th Cir. 1999). “Arguable probable cause exists when ‘an officer
reasonably could have believed that probable cause existed, in light of the information the officer
possessed.’” Durruthy v. Pastor, 351 F.3d 1080, 1089 (11th Cir. 2003) (quoting Montoute v.
Carr, 114 F.3d 181, 184 (11th Cir. 1997)).
In order for Cheatham to defeat Redd’s claim of qualified immunity, he needed to present
evidence that would create a genuine dispute of material fact as to whether Redd had arguable
probable cause to arrest him on April 25, 2010. However, the evidence before the court is that
Redd observed Cheatham’s vehicle perform a traffic infraction, observed Cheatham near the
vehicle while smelling of alcohol, and observed Cheatham’s unsteady walk. All of this evidence
is certainly enough to constitute, at least, arguable probable cause that Cheatham had been
driving under the influence of alcohol. Because Redd had, at least, arguable probable cause to
suspect that Cheatham had been operating his vehicle while under the influence of alcohol,
Cheatham cannot establish that Redd violated his Fourth Amendment right to be free from illegal
searches and seizures by being arrested on April 25, 2010. Therefore, Cheatham has failed to
meet his burden as to Redd’s assertion of qualified immunity as to this aspect, and Redd is due
summary judgment as to Cheatham’s illegal search and seizure claim based on the arrest itself.
15

As to Cheatham’s excessive force claims against Redd, it is clear that “[t]he Fourth
Amendment’s freedom from unreasonable searches and seizures encompasses the plain right to
be free from the use of excessive force in the course of an arrest.” Lee v. Ferraro, 284 F.3d
1188, 1197 (11th Cir. 2002). The main question for the court in determining if Redd’s use of
force was excessive is whether Redd “behaved reasonably in the light of the circumstances
before him.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1244 (11th Cir. 2003). The
Eleventh Circuit has said that “the force used by a police officer in carrying out an arrest must be
reasonably proportionate to the need for that force, which is measured by the severity of the
crime, the danger to the officer, and the risk of flight.” Id. (quoting Lee, 284 F.3d at 1198).
Moreover, “[u]se of force must be judged on a case-by-case basis from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Vinyard v.
Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002) (internal quotations and citations omitted).
Thus, in order for Cheatham to defeat Redd’s qualified immunity defense as to excessive
force, he needed to present evidence that would create a genuine dispute of material fact as to the
reasonableness of Redd’s use of force on April 25, 2010. Cheatham’s material evidence is that
while he was handcuffed, Redd threw him to the asphalt and struck him multiple times on and
around his face, causing severe damage to his mouth.8 Redd claims that Cheatham had pulled a
knife out of his pocket, which led to the struggle that culminated in both of them falling to the
ground, but Cheatham’s testimony contradicts this. See Cheatham Dep. 111:15–112:23. Thus,
8

The court notes that although Cheatham suffered extensive damage to his face, this fact
alone would not turn an otherwise reasonable response on behalf of Redd into excessive force.
See Logan v. Smith, 439 F. App’x 798, 800–01 (11th Cir. 2011) (“the extent of injury is a
relevant factor in determining whether the use of force could plausibly have been thought
necessary under the circumstances . . . [but] it is not solely determinative”).
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there is a genuine dispute of fact as to whether Cheatham pulled a knife on Redd and as to
whether Redd threw Cheatham to the ground or he hit the ground in a struggle. This fact dispute
is material—whether Redd perceived immediate danger from Cheatham retrieving a concealed
weapon goes to whether Redd was entitled to use a higher degree of force in subduing him.
Because Cheatham has failed to demonstrate a genuine dispute of material fact as to the
constitutionality of his arrest on April 25, 2010, the court will grant Redd’s request for qualified
immunity as to Cheatham’s unreasonable search and seizure claim based on the arrest itself.
Because there is a genuine dispute of material fact concerning the events directly after
Cheatham’s arrest, however, the court will deny Redd’s request for qualified immunity as to the
excessive force claims contained in Counts I and II.
Cheatham also alleged in Count I of his Complaint that Redd violated his due process
rights. In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court stated that when an
excessive force claim arises in the context of an arrest, “it is most properly characterized as one
invoking the protections of the Fourth Amendment,” rather than “the more generalized notion of
‘substantive due process.’” Id. at 394–95. Accordingly, Cheatham’s excessive force claim under
the Fourth Amendment subsumes his due process claim.
For the reasons stated above, summary judgment will be entered in favor of Redd on the
unreasonable search and seizure and due process aspects of Count I and denied as to the
excessive force claims in Counts I and II.
ii. As to all other Defendants
The remaining Defendants contend that Counts I and II deal exclusively with Redd’s
conduct and make no reference to the behavior of Walters, Howard, or Rodgers. Moreover, the
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Defendants contend that Counts I and II raise no applicable theory of municipal liability as to the
City as is required by Monell v. Department of Social Services, 436 U.S. 658 (1978) and its
progeny. The Defendants contend that given these absences, Defendants City, Rodgers, Walters,
and Howard are due summary judgment as to these Counts despite the prayer for relief’s call for
damages from “all defendants.” Cheatham has failed to respond to this argument, and, after
considering the Defendants’ argument, the court agrees with the Defendants.
Counts I and II deal exclusively with the conduct of Redd, and raise no theory of liability
which could lead to the recovery of damages from any other Defendant. Therefore, Cheatham
cannot establish Counts I or II against the City, Rodgers, Walters, and Howard as a matter of law.
These Defendants are due summary judgment as to Counts I and II.

C. Count III – Municipal Supervisor Liability
In Count III, Cheatham raises a claim against the City and Rodgers for their failure to
properly train, supervise, hire, and manage the officers of Tallassee’s police force, and claims
that such failures led to the constitutional violations which injured Cheatham.
In order for Cheatham to hold the City or Rodgers, in his official capacity, liable pursuant
to § 1983 for constitutional violations, Cheatham must be able to demonstrate “(1) that his
constitutional rights were violated; (2) that the municipality had a custom or policy that
constituted deliberate indifference to that constitutional right; and (3) that the policy or custom
caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). Because the
evidence in support of the latter two elements is so lacking, the court need not consider whether a
constitutional violation occurred in order to rule as to Count III.
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The Supreme Court has explained that “[i]t is only when the execution of the
government’s policy or custom . . . inflicts the injury that the municipality may be held liable
under § 1983.” City of Canton v. Harris, 489 U.S. 378, 385 (1989) (quoting Springfield v. Kibbe,
480 U.S. 257, 267 (1987) (O’Connor, J., dissenting)). “[T]here are limited circumstances in
which an allegation of a ‘failure to train’ can be the basis for liability under § 1983.” Canton,
489 U.S. at 387; see Doe ex rel. Doe v. City of Demopolis, 461 F. App’x 915, 917 (11th Cir.
2012) (citing Canton and explaining that “[a] city’s failure to train a police officer can be
properly thought of as the city’s policy or custom in ‘limited circumstances.’”)
Thus, in order for Cheatham to prove his case, he must be able to demonstrate, citing
facts from the record, that a municipal policy existed and that it caused the harm that he suffered.
In this case, the only evidence pertaining to the City and Rodgers’ alleged failure to train
Tallassee’s officers are the naked assertions from Cheatham found in his Complaint and echoed
in his Response Brief. The factual record before the court does not demonstrate any policy or
custom which caused Cheatham to suffer any constitutional violations. Because the evidence
before the court does not establish the requisite elements for Monell liability, the Defendants
must prevail on their Motion for Summary Judgment as to Count III.

D. Counts IV, V, and VI – Intentional Torts
i. As to Redd
As to Cheatham’s state law claims of assault, battery, and outrageous conduct against
Redd, Redd asserts state-agent immunity to bar those claims. In Ex parte Cranman, 792 So. 2d

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392 (Ala. 2000), the Alabama Supreme Court restated the rule governing state-agent immunity in
pertinent part as follows:
A State agent shall be immune from civil liability in his or her personal capacity
when the conduct made the basis of the claim against the agent is based upon the
agent’s . . . exercising judgment in the enforcement of the criminal laws of the
State, including, but not limited to, law-enforcement officers’ arresting or
attempting to arrest persons.
Id. at 405.
The Court went on to explain that “a State agent shall not be immune from civil liability
in his or her personal capacity” when state or federal law “require[s] otherwise; or . . . when the
State agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or
under a mistaken interpretation of the law.” Id. Redd has cited Sheth v. Webster, 145 F.3d 1231,
1237 (11th Cir. 1998) for the proposition that state-agent discretionary immunity applies to him
generally as a municipal peace officer. The court agrees with Redd to that extent, but must
consider Redd’s state-agent immunity defense in light of the Cranman exceptions.
When an Alabama court faces a party raising the state-agent immunity defense, it utilizes
a “burden-shifting process.” Ex parte Kennedy, 992 So. 2d 1276, 1282 (Ala. 2008). The first
step is for the party asserting the defense to demonstrate “that the plaintiff’s claims arise from a
function that would entitle the State agent to immunity.” Id. (quoting Ex parte Estate of
Reynolds, 946 So. 2d 450, 452 (Ala. 2006)). The evidence before this court establishes that
Cheatham’s claims stem from Redd’s exercise of judgment as to “the enforcement of the
criminal laws of the State.” Cranman, 792 So. 2d at 405. Therefore, the burden shifts to
Cheatham to raise evidence which would demonstrate that “one of the two categories of

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exceptions to State-agent immunity recognized in Cranman is applicable.” Kennedy, 992 So. 2d
at 1282.
To determine whether Cheatham has carried his burden, the court turns to the evidence
submitted by the parties. The court finds that Cheatham has raised a genuine dispute of material
fact as to whether Redd is entitled to state-agent immunity. Whether Redd’s actions were willful,
malicious, fraudulent, carried out in bad faith, or barred by federal or state law depends on the
circumstances surrounding Cheatham’s arrest on April 25, 2010—circumstances the parties
dispute.
Because Cheatham has raised a genuine dispute of material fact as to whether Redd is
entitled to state-agent immunity on the assault, battery, and outrageous conduct claims, the court
will deny summary judgment as to Redd in his individual capacity on Counts IV, V, and VI.
ii. As to all other Defendants
The remaining Defendants contend that Plaintiff’s assault, battery, and outrageous
conduct claims (Counts IV, V, and VI, respectively) fail against the City and Rodgers. Although
the Complaint is ambiguous as to this fact, it appears clear to the court that Cheatham’s claim
against Rodgers is for his official capacity only.9 “Because suits against a municipal officer sued
in his official capacity and direct suits against municipalities are functionally equivalent, there no
longer exists a need to bring official-capacity actions against local government officials, because
local government units can be sued directly.” Busby v. City of Orlando, 931 F.2d 764, 776 (11th

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However, even if Cheatham was, in fact, alleging a theory of assault, battery, or
outrageous conduct against Rodgers in his individual capacity, it is clear from the dearth of
evidence before the court that Rodgers would be due summary judgment as to such a claim.
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Cir. 1991) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)). Therefore, the claims against
the City and Rodgers shall receive identical treatment.
The Defendants cite Alabama Code § 11-47-190 for the proposition that municipalities
cannot be held liable for the intentional tortious actions of their employees. In other words,
“under § 11-47-190, a city is liable for negligent acts of its employees within the scope of their
employment, but not intentional torts of its employees.” Brown v. City of Huntsville, Ala., 608
F.3d 724, 743 (11th Cir. 2010); see Ex parte City of Gadsden, 718 So. 2d 716, 721 (Ala. 1998)
(explaining that Alabama Code § 11-47-190 “absolves a city from liability for an intentional tort
committed by one of its agents”). The torts of assault, battery, and outrageous conduct are all
intentional torts under Alabama law. See Wright v. Wright, 654 So. 2d 542, 544 (Ala. 1995)
(explaining that an assault is an intentional act and further explaining that a battery is simply a
successful assault); Hardy v. Town of Hayneville, 50 F. Supp. 2d 1176, 1191 (M.D. Ala. 1999)
(“Intentional infliction of emotional distress, as the name indicates, involves intentional conduct,
and thus the city may not be held liable [pursuant to Alabama Code § 11-47-190].”). Therefore,
even if Redd committed the intentional torts as Cheatham alleges, Alabama Code § 11-47-190
immunity bars those claims as a matter of law against the City and Rodgers. Accordingly, the
City and Rodgers are due summary judgment as to Counts IV, V, and VI. The same applies to
Redd in his official capacity.

E. Count V² – Civil Conspiracy
Cheatham’s second Count V raises a claim of civil conspiracy against all Defendants, and
the Defendants contend that the intracorporate conspiracy doctrine bars this claim. “Simply put,
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under the [intracorporate conspiracy] doctrine, a corporation cannot conspire with its employees,
and its employees, when acting in the scope of their employment, cannot conspire among
themselves.” Denney v. City of Albany, 247 F.3d 1172, 1190 (11th Cir. 2001) (quoting
McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000) (en banc)).
Moreover, the Eleventh Circuit has explained that “[t]he doctrine applies to public entities such
as the City and its personnel.” Denney, 247 F.3d at 1190. The record evidence before the court
is that all the individual Defendants in this case are city personnel, and, therefore, the Defendants
cannot have committed civil conspiracy as alleged by Cheatham, as a matter of law.
Accordingly, the court will enter summary judgment in favor of the Defendants as to this count.

F. Count VII – Negligence
i. As to Redd
To the extent that Cheatham’s Count VII alleges a negligence claim against Redd, Redd
cites Ex parte Randall, 971 So. 2d 652, 664 (Ala. 2007) for the proposition that he is immune to
such negligence claims pursuant to his status as a state agent.
As the court has already explained, Redd is immune from suits that stem from his
exercise of judgment in “the enforcement of the criminal laws of the State,” unless Cheatham can
demonstrate that Redd acted “willfully, maliciously, fraudulently, in bad faith, beyond his . . .
authority, or under a mistaken interpretation of the law.” Ex parte Cranman, 792 So. 2d 392,
405 (Ala. 2000). However, Alabama courts have made it clear that a state agent’s immunity may
not be stripped from him or her because of mere negligence. See Randall, 971 So. 2d at 664
(“This Court has previously held that poor judgment or wanton misconduct, an aggravated form
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of negligence, does not rise to the level of willfulness and maliciousness necessary to put the
State agent beyond the immunity recognized in Cranman.”) (citing Giambrone v. Douglas, 874
So. 2d 1046, 1057 (Ala. 2003)). Even if the court assumes that Redd acted negligently,
Cheatham cannot, as a matter of law, utilize a negligence theory to strip Redd of his state-agent
immunity.
Therefore, Redd is due summary judgment in his favor as far as Count VII alleges a
negligence claim against him.
ii. As to all other Defendants
Plaintiff’s Count VII alleges a state law claim against the City and Rodgers as to their
negligent hiring, training, and supervision of Redd. The Defendants contend that “no Alabama
court has expressly recognized a cause of action against a municipality for a supervisor’s
negligent training or supervision of a subordinate.” Borton v. City of Dothan, 734 F. Supp. 2d
1237, 1258 (M.D. Ala. 2010). Another federal court in this state has found that “Alabama law
does not recognize a cause of action against a supervisor or municipality for negligent
supervision/training.” Doe v. City of Demopolis, 799 F. Supp. 2d 1300, 1311 (S.D. Ala. 2011).
Cheatham has failed to provide a reason not to follow the lead of other courts, and the court finds
that Cheatham’s claim as to the negligent hiring, training, and supervision of Redd, Walters, and
Howard against Rodgers and the City fail as a matter of law. In addition, as far as Cheatham
alleges a negligence claim against Walters and Howard, they are shielded by state-agent
immunity, for the same reasons that Redd is immune. Accordingly, summary judgment will be
entered in the Defendants’ favor as to this claim.

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G. Count VIII – Negligent Infliction of Emotional Distress
The Defendants contend that Plaintiff’s Count VIII as to the negligent infliction of
emotional distress fails as a matter of law. The Defendants cite Allen v. Walker, 569 So. 2d 350
(Ala. 1990) for the proposition that “there is no cause of action for the negligent infliction of
emotional distress,” and that the Alabama Supreme Court “has repeatedly stated that only
intentional infliction of severe emotional distress is actionable.” Id. at 352. Cheatham has not
cited any law to the contrary or otherwise distinguished the Allen case, and, therefore, it is clear
that Cheatham’s negligent infliction of emotional distress claim must fail because no such claim
exists under Alabama law. Accordingly, the court will enter summary judgment in favor of all
Defendants as to this claim.

V. CONCLUSION
For the foregoing reasons, it is ordered as follows:
1. Defendant Redd’s Motion to Strike (Doc. # 49) is hereby GRANTED in part and
DENIED in part:
The motion is GRANTED to the extent it seeks to strike the portion of Cheatham’s
affidavit concerning his medical care and treatment after his arrest.
The motion is DENIED to the extent it seeks to strike the portion of Cheatham’s affidavit
concerning the events immediately surrounding his arrest¯in particular, the statements regarding
the amount of force used by Defendant Redd after restraining Cheatham.
To the extent the motion seeks to strike the remainder of the affidavit, the motion is
DENIED as MOOT.
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2. Defendant Redd’s Motion for Summary Judgment (Doc. # 37) is GRANTED in part
and DENIED in part:
The motion is DENIED as to the excessive force claim brought against him in his
individual capacity pursuant to 42 U.S.C. § 1983 from Counts I and II, and as to the assault,
battery, and outrageous conduct claims from Counts IV, V, and VI.
The motion is GRANTED as to the unreasonable search and seizure claim and due
process claim contained in Count I, the civil conspiracy claim from Count V², the negligence
claim from Count VII, and the claim for negligent infliction of emotional distress from Count
VIII, all as against Redd in his individual capacity. Judgment will be entered in favor of
Defendant Redd as to these claims.
The motion is GRANTED as to all claims against Redd in his official capacity.

3. The other Defendants’ Motion for Summary Judgment (Doc. # 31) is GRANTED as to
all counts, and judgment will be entered in favor of Defendants City of Tallassee, Tallassee
Police Department, and James Rodgers, Doug Walters, and C. S. Howard in their official and
individual capacities as to all counts.

4. This case will proceed on Plaintiff’s § 1983 claims against J. L. Redd, in his individual
capacity, based on excessive force, and Plaintiff’s state law claims against J. L. Redd, in his
individual capacity based on assault, battery, and outrageous conduct.

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Done this 7th day of September, 2012.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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