Lovejoy v. Elmore County et al
MEMORANDUM OPINION AND ORDER that Defendants' 15 Motion to Dismiss is GRANTED as to Defendant Elmore County and Defendant Deputy Brouillard in his official capacity, and DENIED as to Defendant Deputy Brouillard in his individualcapacity. Signed by Chief Judge William Keith Watkins on 11/1/2012. (Attachments: # 1 Civil Appeals Checklist)(dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EDWARD W. LOVEJOY,
ELMORE COUNTY, et al.,
CASE NO. 2:12-CV-91-WKW [WO]
MEMORANDUM OPINION AND ORDER
This 42 U.S.C. § 1983 action involves Fourth Amendment claims for the
allegedly unlawful seizure, false imprisonment, and malicious prosecution of Plaintiff
Edward W. Lovejoy. The matter comes before the court on the Motion to Dismiss or,
in the Alternative, Motion for Summary Judgment filed by Defendants Elmore County
and Elmore County Deputy Sheriff Richard T. Brouillard. (Doc. # 15.) Mr. Lovejoy
responded (Doc. # 18), and Defendants replied (Doc. # 21). For the reasons discussed
below, the motion to dismiss is due to be granted in part and denied in part.
I. JURISDICTION AND VENUE
Subject matter jurisdiction over this action is exercised pursuant to 28 U.S.C.
§ 1331. The parties do not contest personal jurisdiction or venue, and there are
allegations sufficient to support both.
II. FACTUAL BACKGROUND
In January 2011, the Elmore Community Hospital reported the sad fact that the
urine sample of an eight-year-old girl, “DB,” tested positive for the sexually
transmitted disease (STD) Trichomoniasis.1 The Elmore County Sheriff’s Office was
contacted, and Deputy Brouillard began a criminal investigation.
Plaintiff Edward W. Lovejoy, DB’s stepfather, tested positive for
Trichomoniasis on February 16, 2011. The facts surrounding this positive test result
form the basis for Mr. Lovejoy’s complaint: He alleges Deputy Brouillard remained
in the bathroom with the urine sample for several minutes and compromised it so that
Mr. Lovejoy would test positive for the disease. (Compl. ¶ 4 (Doc. # 1).)
The next day Deputy Brouillard detained Mr. Lovejoy at the Elmore County
Sheriff’s office. Mr. Lovejoy claims Deputy Brouillard failed to read him his Miranda
rights, and chose to arrest him for “anything he could think to charge him with.”
(Compl. ¶ 6.) Deputy Brouillard did not test any of the other several men with whom
DB interacted (Compl. ¶ 10), nor did Deputy Brouillard speak with DB’s mother
(Compl. ¶ 9).2
“Trichomoniasis is the most common curable STD known at this time.” (Compl. ¶ 10.)
Defendants provide contradictory supplemental evidence in the forms of an affidavit,
the lab results from other men who were tested, and the written statement given by DB’s mother.
As discussed below, the court declines to construe Defendants’ motion as a motion for summary
judgment. Therefore, this evidence is not considered.
Mr. Lovejoy spent twenty-seven days in the Elmore County Jail after he was
charged with sexual abuse of a child less than twelve years old, a violation of Ala.
Code § 13A-6-69.1. The grand jury did not indict him because DB did not admit Mr.
Lovejoy sexually abused her.
III. STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against
the legal standard set forth in Rule 8: “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2). When
evaluating a motion to dismiss pursuant to Rule 12(b)(6), the court must take “the
factual allegations in the complaint as true and construe them in the light most
favorable to the plaintiff.” Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.
2008). However, “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556
U.S. 662, 663 (2009).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal,
556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Determining whether a complaint states a plausible claim for relief [is]
. . . a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 663 (alteration in original) (citation omitted).
“[F]acial plausibility” exists “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). The standard also “calls for enough
fact to raise a reasonable expectation that discovery will reveal evidence” of the claim.
Twombly, 550 U.S. at 556. While the complaint need not set out “detailed factual
allegations,” it must provide sufficient factual amplification “to raise a right to relief
above the speculative level.” Id. at 555; see also James River Ins. Co. v. Ground
Down Eng’g, Inc., 540 F.3d 1270, 1274 (11th Cir. 2008) (Twombly formally retired
“the often-criticized ‘no set of facts’ language previously used to describe the motion
to dismiss standard.”) (citation omitted)).
“It was once said that the moral test of government is how that government
treats those who are in the dawn of life, the children; those who are in the twilight of
life, the elderly; and those who are in the shadows of life, the sick, the needy and the
handicapped.”3 This case requires an inquiry into Deputy Brouillard’s criminal
Senator Hubert Humphrey, remarks at the dedication of the Hubert H. Humphrey
Building, November 1, 1977, Congressional Record, November 4, 1977, vol 123, p. 37287.
investigation of the sexual abuse of an eight-year-old girl.
Mr. Lovejoy argues that he is the victim of a Fourth Amendment unlawful
seizure, false imprisonment, and malicious prosecution because Deputy Brouillard
allegedly tampered with evidence and lacked probable cause to detain and arrest him.
He sues Deputy Brouillard in his official and individual capacities, as well as Elmore
county for monetary damages. Mr. Lovejoy has not opposed Defendants’ contention
that Elmore County, as a matter of law, cannot be held liable for the acts of a deputy
sheriff, nor their assertion that Deputy Brouillard, in his official capacity, enjoys
Eleventh Amendment immunity.
Under the holding of Carr v. City of Florence, 916 F.2d 1521 (11th Cir. 1990),
Mr. Lovejoy’s § 1983 Fourth Amendment claims against Deputy Brouillard in his
official capacity are due to be dismissed because the Eleventh Amendment bars suits
against Alabama deputy sheriffs sued in their official capacities for monetary
damages.4 See id. At 1525–26. Additionally, Mr. Lovejoy’s allegations against
Elmore County are based upon an attempt to hold Elmore County liable for the actions
of Deputy Brouillard under a theory of respondeat superior. Respondeat superior is
not a proper basis for liability under § 1983, see McDowell v. Brown, 392 F.3d 1283,
The dismissal is pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. See
Seaborn v. Fla. Dep’t of Corr., 143 F.3d 1405, 1407 (11th Cir. 1998) (“An assertion of Eleventh
Amendment immunity essentially challenges a court’s subject matter jurisdiction”); (see also
Doc. #5, at 16.)
1289 (11th Cir. 2004), and, in any event, it is well established under Alabama law that
a deputy sheriff is not an employee of the county. See Ex parte Sumter Cnty, 953 So.
2d 1235, 1239 (Ala. 2006).
The sole remaining question is whether Deputy Brouillard is entitled to
qualified immunity on Mr. Lovejoy’s § 1983 claims against him in his individual
capacity. Mr. Lovejoy insists Deputy Brouillard cannot receive qualified immunity
because the warrant lacked “probable cause.” Defendants claim that he is entitled to
qualified immunity because Deputy Brouillard had “arguable probable cause” for the
warrant. Part A will explain why it is not appropriate to convert Defendants’ motion
to dismiss into a motion for summary judgment. Part B will address the issue of
qualified immunity in relation to the sufficiency of the arrest warrant.
Conversion under Rule 12(d) is not appropriate.
“[F]ederal courts have complete discretion to determine whether or not to
accept the submission of any material beyond the pleadings that is offered in
conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion,
or to reject it or simply not consider it.” 5C Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1366 & n.17 (3d ed. 2004) (collecting cases). The
Eleventh Circuit recently stated that “[a] judge need not convert a motion to dismiss
into a motion for summary judgment as long as he or she does not consider matters
outside the pleadings. According to case law, ‘not considering’ such matters is the
functional equivalent of ‘excluding’ them – there is no more formal step required.”
Harper v. Lawrence Cnty., Ala., 592 F.3d 1227, 1232 (11th Cir. 2010).
The evidentiary record appears to be incomplete, lacks full briefing, and
requires clarification, particularly in view of Deputy Brouillard’s alleged tampering
with Mr. Lovejoy’s urine sample. Defendants submitted an affidavit denying that
Deputy Brouillard tampered with evidence. Additionally, Mr. Lovejoy submitted a
negative Trichomoniasis test result. Neither of these can be considered unless the
court construes the 12(b)(6) motion to dismiss as one for summary judgment under
Rule 56. See Fed. R. Civ. P. 12(d). Because discovery has not commenced, the
parties have not had the opportunity to challenge the other’s submissions. The court
declines, therefore, to construe the Rule 12(b)(6) motion as one made pursuant to Rule
56. In its present state, the record lacks the comprehensiveness needed for a
well-reasoned summary judgment decision. Accordingly, the Iqbal/Twombly standard
applies here, and the court must accept as true all well-pleaded factual allegations in
Mr. Lovejoy’s complaint.
Deputy Brouillard is not entitled to qualified immunity if his efforts to obtain
the arrest warrant were based upon perjurious facts.
The defense of qualified immunity involves a two-step inquiry. The first
inquiry is “whether the defendant government official was performing a discretionary
function” when the allegedly wrongful acts occurred. Madiwale v. Savaiko, 117 F.3d
1321, 1324 (11th Cir. 1997). The government actor is acting within his discretion if
“his actions were undertaken pursuant to the performance of his duties and within the
scope of his authority.” Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988) (quoting
Barker v. Norman, 651 F.2d 1107, 1121 (5th Cir. 1981)). Mr. Lovejoy does not
contest that Deputy Brouillard was acting within his discretionary capacity when he
performed the investigation.
“Once the defendant establishes that he was acting within his discretionary
authority, the burden shifts to the plaintiff to show that qualified immunity is not
appropriate.” Lee v. Ferraro, 284 F.3d 1188, 1194. This is the second inquiry and
is itself a two-part test. “[T]he plaintiff must . . . show that: (1) the defendant violated
a constitutional right, and (2) this right was clearly established at the time of the
alleged violation.” Townsend v. Jefferson Cnty, 601 F.3d 1152, 1157 (11th Cir. 2010)
(internal citation omitted). For a right to be clearly established, “[t]he contours of the
right must be sufficiently clear that a reasonable official would understand that what
he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
Mr. Lovejoy’s claims arise from the alleged violation of his Fourth Amendment
right to be free from unlawful seizure, arrest, and detention. The Fourth Amendment
is violated if there are not sufficient facts in an affidavit supporting a warrant to
establish probable cause. Holmes v. Kucynda, 321 F.3d 1069, 1083 (11th Cir. 2003)
(citing Franks v. Delaware, 438 U.S. 154, 164–65 (1978) (“[W]hen the Fourth
Amendment demands a factual showing sufficient to comprise ‘probable cause,’ the
obvious assumption is that there will be a truthful showing.”) (citations omitted)
(emphasis in original)). It is well-settled law that “the Constitution prohibits an
officer from making perjurious or recklessly false statements in support of a warrant.”
Kelly v. Curtis, 21 F.3d 1544 (11th Cir. 1994) (citing Franks, 438 U.S. at 156,
165–71). An officer is not entitled to qualified immunity if the officer knows the
information in the affidavit for the warrant is not truthful. See id. at 1555.
On a motion to dismiss, the factual allegations in the complaint must be
accepted as true. If Deputy Brouillard did in fact tamper with the integrity of Mr.
Lovejoy’s urine sample, then his subsequent efforts to arrest Mr. Lovejoy based upon
this test result would violate the Fourth Amendment. Under that allegation, Deputy
Brouillard would not be entitled to qualified immunity.5
Accordingly, it is ORDERED that Defendants’ motion to dismiss (Doc. # 15)
is GRANTED as to Defendant Elmore County and Defendant Deputy Brouillard in
While Deputy Brouillard is not entitled to qualified immunity on the facts that the court
must accept on a motion to dismiss, that does not foreclose qualified immunity on summary
judgment or at trial.
his official capacity, and DENIED as to Defendant Deputy Brouillard in his individual
DONE this 1st day of November, 2012.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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