Childress v. Walker et al
MEMORANDUM OPINION AND ORDER as follows: (1) Defendants' Motion for Summary Judgment 15 is DENIED with respect to Childress's individual capacity claims asserted against Walker and Chavez in Counts I, II, III, and V of the Complaint; (2) Defendants' Motion for Summary Judgment 15 is GRANTED with respect to Childress's individual capacity claims asserted against Walker and Chavez in Count IV of the Complaint; (3) Defendants' Motion for Summary Judgment 15 is G RANTED with respect to Childress's individual capacity claims asserted against Murphy in Counts IV, V, VI, and VII of the Complaint; (4) Defendants' Motion for Summary Judgment 15 is GRANTED with respect to Childress's civil conspir acy claim asserted against all Defendants in Count VIII of the Complaint; (5) Defendants' Motion for Summary Judgment 15 is GRANTED with respect to all claims asserted against Walker, Chavez, and/or Murphy in their official capacities. Signed by Honorable Judge Mark E. Fuller on 4/30/2013. (Attachments: # 1 Civil Appeals Checklist)(jg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
L.P. WALKER, et al.,
CASE NO. 2:12-cv-0117-MEF
(WO – Publish)
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Motion for Summary Judgment (Doc. #15) filed
by Defendants L.P. Walker (“Walker”), O.V. Chavez1 (“Chavez”), and Kevin Murphy
(“Murphy”) (collectively, “Defendants”) on January 28, 2013. The Court has reviewed the
submissions of the parties and finds that, for the reasons set forth below, the Defendants’
motion is due to be GRANTED IN PART and DENIED IN PART.
I. JURISDICTION AND VENUE
This Court has subject matter jurisdiction over the claims in this action under 28
U.S.C. §§ 1331 and 1343. The parties do not contest personal jurisdiction or venue, and the
Court finds adequate allegations in support of both.
II. STANDARD OF REVIEW
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file,
Chavez was incorrectly named as “L.V.” Chavez in the Complaint.
together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that 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, and
identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrates the
absence of a genuine issue of material fact.” Id. at 323. The movant can meet this burden
by presenting evidence showing there is no dispute of material fact, or by showing the nonmoving party has failed to present evidence in support of some element of its case on which
it bears the ultimate burden of proof. Id. at 322–23.
Once the moving part has met its burden, the non-moving party must “go beyond the
pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and
admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’”
Id. at 324. To avoid summary judgment, the non-moving party “must do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the other hand, a district court
ruling on a motion for summary judgment must believe the evidence of the non-movant and
must draw all justifiable inferences from the evidence in the non-moving party’s favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). After the non-moving party has
responded to the motion for summary judgment, the district court must grant summary
judgment if there is no genuine dispute of material fact and the moving party is entitled to
a judgment as a matter of law. See Fed. R. Civ. P. 56(c).
III. PROCEDURAL HISTORY
On January 11, 2012, Plaintiff Olaf Childress (“Childress”) filed suit in the Circuit
Court of Montgomery County, Alabama against Walker, Chavez, Murphy, and the City of
Montgomery Police Department.2 On February 7, 2012, this action was timely removed to
this Court by Walker, Chavez, and Murphy, who invoked this Court’s subject matter
jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. On March 2, 2012, the Court dismissed
the City of Montgomery Police Department from this action for lack of subject matter
jurisdiction, as police departments are not considered legal entities subject to suit under §
1983. (Order, Doc. #9.)
All of Childress’s claims against Walker, Chavez, and Murphy, the three remaining
defendants, are brought pursuant to 42 U.S.C. §§ 1983 and 1985 for damages for alleged
violations of his constitutional rights. Specifically, the Complaint asserts the following
claims: (1) deprivation of Childress’s First Amendment rights in violation of 42 U.S.C. §
1983 (Count I); (2) deprivation of Childress’s Fourth Amendment rights through false
imprisonment in violation of 42 U.S.C. § 1983 (Count II); (3) deprivation of Childress’s
Fourth Amendment rights through unlawful arrest in violation of 42 U.S.C. § 1983 (Count
III); (4) intentional infliction of emotional distress in violation of 42 U.S.C. § 1983 (Count
Although the Complaint also names certain fictitious parties as defendants, the Court will
disregard this, as there is no fictitious party pleading in federal court. See Richardson v. Johnson,
598 F.3d 734, 738 (11th Cir. 2010) (“As a general matter, fictitious-party pleading is not permitted
in federal court.”); see also Fed. R. Civ. P. 81(c)(1) (“These rules apply to a civil action after it is
removed from a state court.”).
IV); (5) deprivation of Childress’s Fourth and Fourteenth Amendment rights through abuse
of authority in violation of 42 U.S.C. § 1983 (Count V)3; (6) deprivation of Childress’s Fifth
and Fourteenth Amendment rights through Murphy’s failure to instruct, supervise, and
control Walker and Chavez and to otherwise prevent their unlawful actions in violation of
42 U.S.C. § 1983 (Count VI); (7) deprivation of Childress’s constitutional rights, including
those under the Fourth and Fourteenth Amendments, through Murphy’s failure to train
Walker and Chavez in violation of 42 U.S.C. § 1983 (Count VII); and (8) civil conspiracy
to deprive Childress of his First Amendment rights in violation of 42 U.S.C. § 1985 (Count
VIII). Based on these claims, Childress seeks compensatory and punitive damages, plus
attorneys’ fees and costs.
Unfortunately, due to the overly vague and generalized style in which Childress’s
claims are pled, the Court has no clear picture as to which claims Childress is asserting
against which defendant, and whether those claims are being asserted against a particular
defendant in their individual capacity, their official capacity, or both. Childress generally
alleges that his claims against Walker, Chavez, and Murphy are brought against them in their
“official and individual capacities,” (Doc. #1-1, ¶¶ 2, 3 & 5), and Childress incorporates
those allegations into each count of his Complaint. (Doc. #1-1.) However, the only count
that specifically mentions “official capacity” is Childress’s outrage claim. (Doc. #1-1, ¶ 45)
Childress’s § 1983 “abuse of process” claim is essentially a duplication of his § 1983
unlawful arrest and false imprisonment claims, as they are based on the same set of facts and are
rooted in essentially the same purported violations of Childress’s Fourth Amendment rights. Thus,
the Court will collectively analyze Counts II, III, and V of Childress’s Complaint as claims for
violations of Childress’s Fourth Amendment rights under § 1983.
(“Defendants, individually and collectively, in their official capacities . . . inflicted emotional
distress on Plaintiff[.]”). Childress’s seven remaining claims make no distinction as to
whether they are official or individual capacity claims. (Doc. #1-1.) Thus, out of fairness
and an abundance of caution, the Court will construe all of Childress’s claims as being
individual and official capacity claims.
The Complaint also makes repeated allegations against “Defendants” without
providing further clarification as to exactly who Childress means. (Doc. #1-1.) This lazy
pleading makes it markedly more difficult for the Court to discern the intended extent of
Childress’s claims. As such, after reviewing the Complaint, the Court has concluded that it
will construe Childress’s claims as follows: Counts I, II, and III are against Walker and
Chavez; Counts IV,4 V, and VIII are against Walker, Chavez, and Murphy; and Counts VI
and VII5 are against Murphy.
Although Count IV references a “Defendant McCall,” such a defendant is not named in
the Complaint and, therefore, will not be considered as a party to this lawsuit. (Doc. #1-1, ¶ 51.)
Count VII of Childress’s Complaint is a prime example of the confusion created by vague
and generalized pleading. Count VII asserts a claim for violation of Childress’s Fourth and
Fourteenth Amendment rights through a failure to train and supervise police officers under § 1983.
This claim is asserted against “all Defendants.” (Doc. #1-1, ¶¶ 64, 65, 66 & 68.) However, it is
axiomatic that Walker and Chavez cannot be held liable for failing to train and supervise themselves.
Thus, the Court must construe Count VII of Childress’s Complaint as being asserted solely against
Murphy in his individual and official capacities.
The Court has carefully considered the submissions of the parties in support of and
in opposition to the motion. The submissions of the parties, viewed in the light most
favorable to Childress, the non-moving party, establish the following material facts:
In January 2011, the Sons of Confederate Veterans (“SCV”) applied to the City of
Montgomery, Alabama for a public assembly permit. The purpose of the permit was “to
commemorate and reenact the 50th anniversary of the swearing in of Jefferson Davis as
President of the Confederate States of America.” (Doc. #15-1.) The date requested for the
assembly was February 19, 2011. The permit application stated that patrons would begin
assembling for the parade at 10:00 a.m. near the fountain at One Court Square and Dexter
Avenue. The parade would then proceed up Dexter Avenue to Bainbridge Street and would
stop at the steps of the Capitol where a rally would be held. The permit stated that the event
would last from noon until 2:00 p.m., with approximately 1,000 people participating. SCV
paid the City of Montgomery a $100 permit fee, and the permit request was approved by
Murphy on February 4, 2011. There is no evidence in the record that the permit was for the
exclusive use of the permitted area.
During the relevant time period, Walker was employed as a lieutenant with the City
of Montgomery Police Department (“MPD”) in the traffic division. Walker has been a
lieutenant with MPD since 1999 and has been with the department for a total of 29 years.
Walker has had significant training with MPD and has worked numerous events similar to
the SCV assembly. Chavez was employed as a sergeant with MPD in the traffic division and
was the department’s permit supervisor. Chavez has supervised permits for MPD for
approximately 10 years and was the permit supervisor for the SCV event.
On February 19, 2011, the day of the SCV event, Walker and Chavez were assigned
to work off-duty at the event to provide traffic control and safety. MPD bike officers were
also present as part of their regular patrols, in addition to members of MPD SWAT unit.
Additional police presence was needed to control any possible violence that might arise at
the event. As permit supervisor, Chavez had reviewed the SCV permit before the event
began, but Walker had not; he simply relied on Chavez’s instructions. Walker and Chavez
erected barricades to designate the area where the SCV members were to assemble before
the parade started. Walker and Chavez erected these barricades on Montgomery Street,
Commerce Street, and Dexter Avenue, including parts of the public sidewalk, to form a
“controlled” area around One Court Square for the assembly. These barricades were also
erected to prohibit vehicular traffic on those streets. Neither officer disputes that the SCV
assembly was a public event and that the general public could enter the barricaded area.
There was no fee charged to attend the event.
Although Childress is not a member of the SCV, he was invited6 to attend the event
on February 19, 2011, where he was handing out copies of a newspaper he produces, The
First Freedom, “to the people that wanted – that held their hands out and asked for a copy.”7
Childress does not specify who invited him to the SCV event, but his deposition testimony
implies that several members of the SCV invited him via email.
While Childress is not a member of the SCV, he testified that his newspaper “[a]bsolutely
supports the SCV in every way possible that we can think of.” (Doc. #15-4.)
Childress testified that he was handing out his newspapers on the public sidewalk by One
Court Square and Montgomery Street, which was within the barricaded assembly area,
approximately a half hour before the parade began. However, according to Childress, the
barricaded areas were not clearly marked, and many individuals, including individuals not
affiliated with the SCV, were moving in and out of the barricaded areas.
One of the SCV event organizers, Thomas Strain (“Mr. Strain”), complained to
Chavez that Childress was disrupting the assembly and that his newspaper was offending
some of the attendees. Indeed, Walker testified that he saw “people take [Childress’s
newspaper], look at it. A couple of them threw it down. One tossed it in a garbage can.”
(Doc. #15-2.) Mr. Strain requested that Chavez ask Childress to leave the barricaded area
so that the SCV could have a peaceable assembly without a disturbance. As a result, at
approximately 10:30 a.m., before the SCV parade began, Chavez and Walker approached
Childress while he was passing out his newspapers on the public sidewalk by One Court
Square, within the barricaded assembly area. Chavez told Childress that some of the SCV
people said he was causing a disturbance and requested that he stop passing out his
newspapers and move from the barricaded area. Childress responded that he had a right to
pass out his newspapers and offered to continue passing them out on the public sidewalk next
to, but outside of, the barricaded area.8 Childress claims that Chavez told him that he could
In other words, Childress claims that, when Chavez approached him, he offered to stop
passing out his newspapers in the barricaded area where the SCV members were assembling for the
parade and to continue passing them out on the public sidewalk right next to, but outside of, the
barricaded area. However, there is no indication in the record that Childress was giving his
newspapers to anyone other than individuals who asked or gestured for a copy.
not pass out his newspapers there either and that Childress needed to move 15 to 20 feet
down Montgomery Street or he would be arrested. At that same time, a couple walked by
Childress, Chavez, and Walker, and Childress handed them a newspaper, despite Chavez’s
previous order for him to stop and move from the area or be arrested. Consequently, Chavez
and Walker placed Childress under arrest for disorderly conduct. Both Walker and Chavez
testified that Childress resisted their attempts to arrest him and tried to pull away from them;
however, Childress denies this allegation, claiming that he was not pulling away from the
officers, but even if he were, it was only so that he could hand his remaining newspapers to
some of his subscribers who were sitting on a nearby bench. Childress was taken to the city
jail and “roughed up for the rest of the day.”9 (Doc. #15-3.)
Neither Walker nor Chavez personally witnessed Childress doing anything they
believed disturbed the SCV assembly. Chavez testified that while he did not personally
believe Childress was creating a disturbance, the SCV did and that is why he ordered
Childress to move from the assembly area. Although Walker testified that he believed
Childress’s intent was to create a disturbance or inflammatory situation by passing out his
newspapers at the SCV event, both officers testified that, at the time of his arrest, Childress
was not using any foul language, was not berating or threatening anyone, was not making any
unreasonable or loud noises, was not making any obscene gestures, and was not obstructing
any vehicles or pedestrians. Walker testified that Childress’s presence alone and his
Despite this allegation, Childress’s Complaint does not contain an excessive force claim.
distribution of The First Freedom was what they considered a disturbance to the SCV
assembly. Although Mr. Strain had skimmed The First Freedom and considered it “antisemitic” and offensive, neither Walker nor Chavez read Childress’s newspaper before they
arrested him; instead, they relied solely on Mr. Strain’s complaint that Childress was
disturbing the SCV assembly. Walker testified that the content of Childress’s newspaper
“was irrelevant” to them. However, Childress claims that other non-SCV members were
allowed to pass out newspapers at the assembly in the same area as he was without any
disturbance from MPD.
On May 19, 2011, Childress was tried and convicted in Montgomery municipal court
for disorderly conduct. This lawsuit followed.
Claims Pursuant to 42 U.S.C. § 1983
All but one of Childress’s claims in this action are brought pursuant to 42 U.S.C. §
1983. Section 1983 provides a remedy when a person acting under color of state law
deprives a plaintiff of a right, privilege, or immunity secured by the Constitution, laws, or
treaties of the United States. 42 U.S.C. § 1983; see, e.g., Graham v. Connor, 490 U.S. 386,
393–94 (1989) (explaining that “§ 1983 is not itself a source of substantive rights, but merely
provides a method for vindicating federal rights elsewhere conferred”) (internal quotations
omitted)); Cummings v. DeKalb County, 24 F.3d 1349, 1355 (11th Cir. 1994). Section 1983
provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
42 U.S.C. § 1983. In this case, Childress alleges that the Defendants, through several acts
performed under color of law, deprived him of various rights conferred through the United
States Constitution. As a result, for each of Childress’s claims rooted in § 1983, he must
prove that (1) Defendants acted “under color” of law as defined by § 1983 and cases
interpreting that language, and (2) Defendants’ actions deprived him of a specific
constitutional right. There is no dispute that Defendants were acting under color of law in
connection with Childress’s arrest. Thus, the issue before the Court is whether, through
Defendants’ conduct, Childress suffered a deprivation of some constitutional right.
Childress has also asserted § 1983 claims against Walker, Chavez, and Murphy in
their official capacities. Because an official capacity suit is considered a suit against the
entity itself, this means that Childress has effectively asserted claims against the City of
Montgomery as well as the individual officer defendants. See Monell v. Dep’t of Soc. Servs.
of City of New York, 436 U.S. 658 (1978) (holding that local governments are “persons” that
can be sued under § 1983). This places an additional burden on Childress to establish a
“direct causal link between a municipal policy or custom” and his alleged constitutional
deprivations, as a municipality cannot be liable under § 1983 for the acts of its employees
under a theory of respondeat superior. See Bd. of County Comm’rs v. Brown, 520 U.S. 397,
403 (1997); City of Canton v. Harris, 489 U.S. 378, 385 (1989) (explaining that a
municipality is liable under § 1983 only if it is found to have itself caused the violation of
federal law or deprivation of federally created rights). Applying this legal framework, the
Court will now address the merits of Childress’s § 1983 claims.
Individual Capacity Claims Against Walker and Chavez
Childress claims that Walker and Chavez violated his First, Fourth, and Fourteenth
Amendment rights by unlawfully arresting him without probable cause and by falsely
imprisoning him, thus curtailing his ability to speak freely and distribute his newspapers.
Walker and Chavez argue that they are entitled to summary judgment on these claims
because of qualified immunity.
Overview of Qualified Immunity
“Qualified immunity offers complete protection for government officials sued in their
individual capacities if their conduct ‘does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Stovall v. Allums,
No. 1:04-cv-659-F, 2005 WL 2002069, at *4 (M.D. Ala. Aug. 16, 2005) (quoting Vinyard
v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)). “The purpose of this immunity is to allow
government officials to carry out their discretionary duties without fear of personal liability
or harassing litigation, protecting from suit all but the plainly incompetent or one who is
knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)
(internal quotations and citations omitted). “Entitlement to immunity is the rule, rather than
the exception.” Samarco v. Neumann, 44 F. Supp. 2d 1276, 1291 (S.D. Fla. 1999) (citing
Lassiter v. Ala. A&M Univ., 28 F.3d 1146 (11th Cir. 1994)).
To benefit from the protection of qualified immunity, the “public official must first
prove that he was acting within the scope of his discretionary authority when the allegedly
wrongful actions occurred.” Id. (internal quotations omitted). In this case, there is no dispute
that Walker and Chavez were acting within their discretionary authority when they arrested
Childress.10 See Naccarato v. Oliver, 882 F. Supp. 297, 304 (E.D.N.Y. 1995) (applying
defense of qualified immunity to off-duty officer who engaged in a fight while working as
bouncer); Lee, 284 F.3d at 1194 (holding that there was “no doubt” an officer who pulled
over a suspect for a traffic offense and arrested her was acting within the scope of his
discretionary authority); Vinyard, 311 F.3d at 1346–47 (holding that an officer was acting
within the scope of his discretionary authority when he arrested a subject and transported him
to jail). “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.” Id.
Qualified immunity is not appropriate if the plaintiff can show that the defendant, while
acting within his discretionary authority, “violated clearly established statutory or
constitutional law.” Wood v. Kesler, 323 F.3d 872, 877–78 (11th Cir. 2003).
For many years, it was at this point that courts would follow the Saucier test to
Moreover, the undisputed evidence in this case establishes that the officers, although
working off-duty, arrived at the event on MPD motorcycles and worked with other on-duty MPD
officers and the SWAT unit. Childress further admits that Chavez and Walker were MPD officers
at the time of the events giving rise to this lawsuit.
complete its qualified immunity analysis. See Saucier v. Katz, 533 U.S. 194, 201 (2001),
overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009). Saucier mandated a twostep sequence for resolving qualified immunity claims by government officials. Id. First,
courts would ask, “[t]aken in the light most favorable to the party asserting the injury, do the
facts alleged show the officer’s conduct violated a constitutional right?” Id. “If no
constitutional right would have been violated were the allegations established, there is no
necessity for further inquiries concerning qualified immunity.” Id. However, “[i]f a
constitutional right would have been violated under the plaintiff’s version of the facts, the
next, sequential step is to ask whether the right was clearly established.” Id. The standard
for deciding if an officer’s conduct violated clearly established law is purely objective; an
officer’s subject intent or beliefs are irrelevant. See Von Stein v. Brescher, 904 F.2d 572, 579
(11th Cir. 1990). If the plaintiff cannot prove that the officer’s conduct violated a clearly
established constitutional right, then qualified immunity applies.
However, a unanimous Supreme Court effected a paradigm shift in the law of
qualified immunity in 2009 when it decided Pearson v. Callahan, which held that the Saucier
procedure was no longer mandatory. 555 U.S. at 236 (“On reconsidering the procedure
required in Saucier, we conclude that, while the sequence set forth there is often appropriate,
it should no longer be regarded as mandatory.”). This decision now permits district courts
“to exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the particular
case at hand.” Id. As a result, there is no longer a requirement that district courts expend
time and resources first resolving a difficult constitutional question in cases where it is
obvious that a constitutional right was not “clearly established,” but it is “far from obvious
whether in fact there is such a right.” Id. at 237.
While the Court recognizes that dispensing with the Saucier procedure is beneficial
in many instances, this is not always the case. Indeed, this case does not implicate one of
many reasons the Pearson Court gave for opting out of the Saucier procedure, including the
presence of uncertain questions of state law that may affect the resolution of constitutional
issues, an insufficiently developed factual record at the motion to dismiss stage, when
qualified immunity is often raised, and the risk of bad decision-making in lower courts where
constitutional questions are often not well-briefed. Id. Because the Court sees no reason to
opt-out of the Saucier procedure in this case, it will follow this procedure, first determining
whether a constitutional violation could have occurred under Childress’s versions of the
facts. If such a violation could have occurred, only then will the Court consider whether the
constitutional right was clearly established. If the answer to either of these questions is “no”,
then the officers will be entitled to qualified immunity on Childress’s constitutional claims
against them in their individual capacity.
First and Fourth Amendment Claims
Counts I, II, III, and V of Childress’s Complaint allege that Walker and Chavez
violated his First, Fourth, and Fourteenth11 Amendment rights by unlawfully arresting and
Because Childress’s claims against Walker and Chavez are based on wrongful arrest,
detention, and violation of his free speech rights, they are properly addressed under the First and
detaining him while he was exercising his right to speak freely and to distribute his
newspaper. (Doc. #1-1, Counts I, II, III & V.) However, when a police officer has probable
cause to believe that a person is committing a particular public offense, an officer may
lawfully arrest him, even though the offender is engaged in protected First Amendment
activity at the time of the arrest. See Willis v. Siegleman, 307 F. Supp. 2d 1236, 1241 (M.D.
Ala. 2004) (citing Redd v. City of Enterprise, 140 F.3d 1378, 1383 (11th Cir. 1998)). As
such, while Childress’s efforts in this case are substantially focused on establishing a
violation of his First Amendment rights, the viability of his First Amendment claim hinges
on the legality of his arrest under the Fourth Amendment. Stated differently, if the officers
had probable cause to arrest Childress for disorderly conduct on February 19, 2011, then his
First Amendment claim fails as a matter of law. Therefore, the Court will initially address
whether Walker and Chavez are entitled to qualified immunity for their arrest and subsequent
detention of Childress. In so doing, the Court keeps in mind “the fact that we generally
accord official conduct a presumption of legitimacy.” Epps v. Watson, 492 F.3d 1240, 1243
(11th Cir. 2007) (internal quotations and citations omitted). Nonetheless, because this is
Defendants’ motion for summary judgment, the Court must view all the evidence and draw
Fourth Amendments, and not the Fourteenth. Indeed, “[w]here a particular Amendment provides
an explicit textual source of constitutional protection against a particular sort of government
behavior, that Amendment, not the more generalized notion of substantive due process, must be the
guide for analyzing these claims.” Battiste v. Lamberti, 571 F. Supp. 2d 1286, 1314 n.2 (S.D. Fla.
2008); see also Albright v. Oliver, 510 U.S. 266, 274 (1994); Hamm v. Powell, 893 F.3d 293, 294
(11th Cir. 1990) (recognizing that false arrest claims under § 1983 are analyzed solely as
unreasonable seizure claims under the Fourth Amendment and not as claims for deprivation of due
process under the Fourth Amendment).
all factual inferences therefrom in the light most favorable to Childress, as the non-movant,
and determine whether that evidence could reasonably sustain a jury verdict in his favor.
“A warrantless arrest without probable cause violates the Fourth Amendment and
forms a basis for a section 1983 claim.” Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir.
1996) (citing Marx v. Gumbinner, 905 F.2d 1503, 1505 (11th Cir. 1990)). “An arrest made
with probable cause, however, constitutes an absolute bar to a section 1983 action for false
Probable cause exists where the facts and circumstances within the officers’
knowledge and of which they had reasonably trustworthy information are
sufficient in themselves to warrant a man of reasonable caution in the belief
that an offense has been or is being committed. Probable cause does not
require overwhelmingly convincing evidence, but only reasonably trustworthy
information, and probable cause must be judged not with clinical detachment
but with a common sense view to the realities of normal life.
Marx v. Gumbinner, 905 F.2d 1503, 1505 (11th Cir. 1990).
However, to receive the protection of qualified immunity, an officer needs only
arguable, rather than actual, probable cause. Jones v. Cannon, 174 F.3d 1271, 1283 n.3
(11th Cir. 1999) (“Arguable probable cause, not the higher standard of actual probable cause,
governs the qualified immunity inquiry.”). Thus, “[i]n the context of a wrongful arrest claim,
an officer will be protected by qualified immunity if he had arguable probable cause to
effectuate the arrest.” Brown v. Head, 228 F. Supp. 2d 1324, 1328 (M.D. Ala. 2002)
(internal quotations omitted). Arguable probable cause exists if, under the facts and
circumstances, a reasonable officer could — not necessarily would — have believed that
probable cause was present for an arrest. See Durruthy v. Pastor, 351 F.3d 1080, 1089 (11th
Cir. 2003). This inquiry is objective, and the Court must ask whether the officer’s actions
were objectively reasonable regardless of the officer’s underlying motivation or intent.
Under Childress’s version of the facts, the Court is of the opinion that Walker and
Chavez did not have arguable probable cause to arrest Childress for disorderly conduct as
that crime is defined under Alabama law.12 To arrest an individual for a misdemeanor like
disorderly conduct without a warrant, the offense much be committed in the officer’s
presence. Dupree v. City of Phenix City, Ala., No. 3:10-cv-970-WKW, 2012 WL 4378585,
at *6 (M.D. Ala. July 2, 2012); Ala. Code § 15-10-3(a)(1) (prohibiting misdemeanor arrest
when offense not committed in officer’s presence). Both Walker and Chavez testified that
they did not personally witness Childress causing a disturbance at the SCV event; instead,
they relied solely on Mr. Strain’s complaint. Indeed, the evidence shows that Mr. Strain’s
complaint was the only evidence that Walker and Chavez had at the time of Childress’s arrest
Section 13A-11-7 of the Ala. Code defines disorderly conduct as follows:
(a) A person commits the crime of disorderly conduct if, with intent to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(1) Engages in fighting or in violent tumultuous or threatening behavior; or
(2) Makes unreasonable noise; or
(3) In a public place uses abusive or obscene language or makes an obscene gesture;
(4) Without lawful authority, disturbs any lawful assembly or meeting of persons; or
(5) Obstructs vehicular or pedestrian traffic, or a transportation facility; or
(6) Congregates with other person in a public place and refuses to comply with a
lawful order of the police to disperse.
Ala. Code § 13A-11-7. Although never clearly stated, it appears from Defendants’ arguments that
Childress was charged with violating subsection (4) of this statute. (Doc. #16.) Disorderly conduct
is a Class C misdemeanor.
to indicate that he had violated, was violating, or was about to violate the disorderly conduct
statute so as to justify his arrest, evidence which Childress disputes.
While Walker did testify that he witnessed some individuals take Childress’s
newspaper and throw it down or place it in the garbage, there is no indication in the record
that Childress was forcing anyone to take his newspapers. There is also no evidence that, at
the time of Childress’s arrest, he was using loud, abusive, or profane language, was making
threats or obscene gestures, was blocking pedestrian or vehicular traffic, or was making
unreasonable noise. Compare Lewis v. Blue, 774 F. Supp. 2d 1164, 1181 (M.D. Ala. 2011)
(“Plaintiff’s loud and profane language provided arguable cause for a disorderly conduct
arrest” under Ala. Code § 13A-11-7), and Redd v. City of Enterprise, 140 F.3d 1378,
1382–83 (11th Cir. 1998) (finding that officers had probable cause to arrest individual for
disorderly conduct when he was speaking so loudly that he could be heard over traffic and
passers-by complained of his loudness), and Gold v. City of Miami, 121 F.3d 1442, 1446
(11th Cir. 1997) (finding that probable cause existed for disorderly conduct arrest when the
plaintiff twice used profanities in a loud voice, in a public place, in the presence of others),
with Walker v. Briley, 140 F. Supp. 2d 1249, 1258 (N.D. Ala. 2001) (finding no arguable
probable cause for a disorderly conduct arrest where the plaintiff’s evidence showed that the
plaintiff had not been loud, used profanity, or used a belligerent tone in voicing his
displeasure to two police officers who had pulled him over); Willis v. Siegleman, 307 F.
Supp. 2d 1236, 1242 (M.D. Ala. 2004) (finding that officer had no probable cause to arrest
an individual for disorderly conduct absent evidence that the plaintiff had behaved violently,
made unreasonable noise, used obscene language, or disturbed a lawful assembly).
While Walker and Chavez argue that Childress refused an order to move just a few
feet down the road, it does not appear that Childress’s arrest was based on his refusal of a
dispersal order. In any event, Childress claims that he offered to move just outside of the
barricaded area so that he could continue handing out his newspapers, but the officers
insisted that he move further down Montgomery Street. Walker and Chavez also argue that
Childress resisted their attempts to arrest him, but Childress’s evidence, which the Court
must credit at this stage of the proceedings, claims the opposite.
The fact that the SCV event was a permitted event does not affect the Court’s probable
cause analysis. The SCV event was conducted on public streets and was free and open to the
general public. While the SCV did obtain a permit for the event, it was not an exclusive
permit that would give them a right to the exclusive use of the streets and areas designated
for use in the permit. While Walker and Chavez rely on Hurly v. Irish-American Gay,
Lesbian and Bisexual Group of Boston for the proposition that the SCV could not be
compelled to include Childress and his message in their event, this case does not create
probable cause where none otherwise exists. 515 U.S. 557 (1995). In any event, Childress
was not attempting to participate in the SCV event itself as a vendor or marcher or some
other component of the group; he instead was acting alone and distributing newspapers to
attendees of the event. As the Third Circuit recognized in Startzell v. City of Philadelphia,
533 F.3d 183, 194 (7th Cir. 2008), Hurley does not authorize a private entity to exclude a
group or individual from attending a private-sponsored event in a public forum that is free
and open to the general public, even if the event was permitted. “There is no basis to read
Hurley as circumscribing the long line of authority upholding free access by the general
public to street festivals and other events held in traditional public fora.” Id. at 195.
“[N]either the grant of a permit nor anything in Hurley alters that still viable principle.” Id.
While the Court does recognize that Hurley and Startzell involved different claims than
presented here (i.e., challenges to the application of a state law or municipal ordinance, rather
than qualified immunity),13 they are instructive to the limited extent they recognize a permit
does not give its holder the unfettered ability to exclude those who are engaged in protected
speech at a public event that is being held in a public forum, and does not give a police
officer probable cause to arrest those individuals when none otherwise exists.
In sum, viewing the facts in a light most favorable to Childress, Walker and Chavez
did not have probable cause to arrest or detain Childress for disorderly conduct without a
warrant on February 19, 2011. Because Childress has established a violation of his Fourth
Amendment rights, based on his version of the facts, the Court will now move to the second
step of the qualified immunity analysis: whether the right to be free from a warrantless arrest
and detention without probable cause is “clearly established.” The Court holds that it is.
Indeed, it is clearly established that seizing and detaining an individual without reasonable
suspicion or probable cause violates the Fourth Amendment. See Dupree v. City of Phenix
City, Ala., No. 3:10-cv-970-WKW, 2012 WL 4378585, at *7 (M.D. Ala. July 2, 2012); see
The Court also recognizes that the constitutionality of the City of Montgomery’s permit
procedures or the disorderly conduct statute have not been challenged here.
also Von Stein v. Brescher, 904 F.2d 572, 579 (11th Cir. 1990). Given this clarity in the law
and “the firmly entrenched nature of the right” to be free from a warrantless arrest and
detention absent probable cause, the Court finds that, under Childress’s version of the facts,
it would be clear to a reasonable officer that Walker and Chavez’s arrest of Childress was
unlawful. Therefore, Walker and Chavez are not entitled to qualified immunity.
In light of this conclusion, as well as the numerous factual disputes in this case,
Defendants’ motion for summary judgment on Childress’s Fourth Amendment claims is
DENIED. Having made this determination, Walker and Chavez are likewise not entitled to
summary judgment on Childress’s First Amendment claim. See Willis, 307 F. Supp. 2d at
1243. The Court finds that issues of fact exist as to Childress’s allegation of a violation of
his First Amendment rights, and Walker and Chavez have failed to produce evidence that
Childress’s First Amendment rights were not violated.14 Accordingly, Defendants’ motion
for summary judgment on Childress’s First Amendment claim is DENIED.
The crux of Walker and Chavez’s argument on summary judgment as to Childress’s First
Amendment claim is that because Walker and Chavez had probable cause to arrest Childress, his
First Amendment claim must fail as a matter of law. This argument is unavailing because the Court
has found that Walker and Chavez did not have probable cause to arrest Childress for disorderly
conduct. Moreover, at the time of his arrest, Childress was engaged in protected speech in a
traditional public forum (i.e., the public streets of Montgomery during a non-exclusive permitted
event that was free and open to the general public), see Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 45 (1983) (holding that traditional public fora include public streets), and the
only basis given for his arrest was that his distributing The First Freedom was causing a disturbance
and offending some of the SCV event attendees. While Walker testified that the content of
Childress’s newspaper was “irrelevant” to them in making the arrest, the evidence, which also
includes testimony by Childress that other individuals were allowed to distribute newspapers that
day in the same area as he was without disturbance by MPD, could lead a reasonable factfinder to
conclude that Childress’s arrest was based upon his distribution of his newspaper and was a
violation of his First Amendment rights.
Claim for Intentional Infliction of Emotional Distress
Finally, Count IV of Childress’s Complaint asserts a claim against Walker and Chavez
in their individual capacities15 for intentional infliction of emotional distress under § 1983.
(Doc. #1-1, Count IV.) Specifically, Childress alleges that Walker and Chavez inflicted
emotional distress on him “by maliciously prosecuting [him], or by abusing the lawful
process by unlawful purpose, or by violating [his] constitutional rights, or by falsely arresting
and imprisoning [him], by conspiring against [him], or by interfering with [his] civil rights
by threats, coercion, or intimidation, or knew or should have known that emotional distress
was the likely result of their conduct.” (Doc. #1-1.)
Unlike Childress’s First and Fourth Amendment claims, his individual capacity
intentional infliction of emotional distress claim against Walker and Chavez under § 1983
fails as a matter of law. First, Childress conceded this claim when he failed to meaningfully
address it in response to Defendants’ summary judgment motion. See Glass v. Lahood, 786
F. Supp. 2d 189, 210 (D.D.C. 2011) (“[I]t is well understood . . . that when a plaintiff files
an opposition to a dispositive motion and addresses only certain arguments raised by the
defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”
(internal quotations omitted)). Second, Childress has not demonstrated or even alleged the
denial of a specific federal constitutional right or privilege to form the predicate for a § 1983
intentional infliction of emotional distress claim. While there is no doubt that Walker and
Childress also asserts this claim against Walker and Chavez in their official capacities.
Chavez’s actions likely upset Childress, this alone does not violate his constitutional rights.
See Martin v. LaBelle, 7 Fed. App’x 492, 495 (6th Cir. 2001).
Moreover, even though Childress’s intentional infliction of emotional distress claim
was brought solely under § 1983, this claim would still fail even if it had been brought under
Alabama law. The tort of outrage (also known as intentional infliction of emotional distress)
is an extremely limited cause of action, and is generally recognized in Alabama in three
limited circumstances: (1) wrongful conduct in the family-burial context; (2) barbaric
methods employed to coerce an insurance settlement; and (3) egregious sexual harassment.
E.g., Potts v. Hayes, 771 So. 2d 462, 465 (Ala. 2000). A defendant’s conduct must also be
“extreme and outrageous” to the point that it caused emotional distress “so severe that no
reasonable person could be expected to endure it.” Id. In this case, Walker and Chavez’s
actions, even when viewed in the light most favorable to Childress, were not so extreme and
outrageous as to give rise to an intentional infliction of emotional distress claim. As such,
Defendants’ motion for summary judgment on Childress’s § 1983 intentional infliction of
emotional distress claim against Walker and Chavez in their individual capacities is
Individual Capacity Claims Against Murphy
Childress’s Complaint also asserts constitutional claims against Murphy in his
individual capacity. As with Walker and Chavez, Childress asserts a § 1983 intentional
infliction of emotional distress claim against Murphy. (Doc. #1-1, Count IV.) However,
because the Complaint is unclear, the Court is also construing Childress’s Complaint as
asserting claims against Murphy, as Walker and Chavez’s supervisor, for abusing his
authority, for refusing or neglecting to prevent Walker and Chavez’s alleged unlawful
conduct, and for failing to properly and adequately train and supervise Walker and Chavez.
(Doc. #1-1, Counts V, VI & VII.) Childress asserts these claims against Murphy pursuant
to § 1983, claiming that Murphy’s actions violated his Fifth, Fourth, and Fourteenth16
“It is well established in this Circuit that supervisory officials are not liable under §
1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior
or vicarious liability.” Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). “A
supervisor may only be subject to ‘direct liability’ for his own actions or, under limited
circumstances, supervisory liability for the actions of his subordinates.” Battiste, 571 F.
Supp. 2d at 1300. A supervisor is “liable for the actions of his subordinates either when the
supervisor personally participates in the alleged constitutional violation or when there is a
causal connection between actions of the supervising official and the alleged constitutional
violation.” Id. (internal quotations omitted). “One of the ways to establish such a ‘causal
connection’ is by offering facts supporting ‘an inference that the supervisor directed the
subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed
to stop them.’” Id. (quoting Cottone, 326 F.3d at 1360). “‘The standard by which a
Again, because Childress’s Complaint provides an explicit textual source of constitutional
protection against a particular sort of government behavior (i.e., the Fourth and Fifth Amendments),
these will prove the guide for analyzing his individual claims against Murphy, rather than the
Fourteenth Amendment. See Battiste, 571 F. Supp. 2d at 1314 n.2.
supervisor is held liable in [his] individual capacity for the actions of a subordinate is
extremely rigorous.’” Id. (emphasis added).
Murphy argues that Childress has failed to set forth facts or evidence sufficient to
sustain any claim against him in his individual capacity. The Court agrees. Childress has
neither alleged nor pointed to any evidence tending to show that Murphy was personally
involved with Childress’s arrest and detention, or that there was any connection, much less
a causal connection, between any of Murphy’s actions and the alleged constitutional
violations perpetrated on Childress by his subordinates, Walker and Chavez. Absent any
such evidence, no reasonable juror could impose liability on Murphy in his individual
capacity in this case. Therefore, to the extent Childress’s Complaint asserts any § 1983
claims against Murphy in his individual capacity, Defendants’ motion for summary judgment
is GRANTED as to those claims.
Official Capacity Claims
As explained above, a § 1983 claim filed against government officers in their official
capacities is, in essence, a claim against the governmental entity of which the officer is an
agent. See, e.g., Monell, 436 U.S. at 690. In this case, Childress has sued Walker, Chavez,
and Murphy in both their individual and official capacities. Therefore, even though
Childress did not name the City of Montgomery as a defendant in this lawsuit, it is clear that
the City of Montgomery is the target of his official capacity claims, and therefore, the Court
will treat these claims17 as claims against the City of Montgomery, rather than the individual
Because Childress is seeking to recover from the City of Montgomery by suing
Walker, Chavez, and Murphy in their official capacities, he must overcome the “strict
limitations on municipal liability” that the Supreme Court has put in place. Gold v. City of
Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). A municipality is liable under § 1983 only if
it is found to have caused the violation of federal law or deprivation of federally created
rights itself; a municipality cannot be held vicariously responsible under a theory of
respondeat superior. Skop v. City of Atlanta, 485 F.3d 1130, 1145 (11th Cir. 2007).
“Instead, a municipality may be held liable for the actions of a police officer only when
municipal ‘official policy’ causes a constitutional violation.” Gold, 151 F.3d at 1350; Monell,
436 U.S. at 690. Thus, in the instant case, Childress “must show either that the alleged
violation in question was ‘caused by an existing unconstitutional municipal policy, which
policy can be attributed to a municipal policy maker or that the alleged violation is
attributable to ‘inadequate police training.’” Hamilton v. City of Jackson, 508 F. Supp. 2d
1045, 1056 (S.D. Ala. 2007) (quoting Schmek v. Monroe Cty., 954 F.2d 1540, 1544 (11th
As previously noted, Childress’s overly generalized Complaint makes it quite difficult,
if not impossible, for the Court to discern with any degree of certainty which claims are being
asserted against which defendant, and whether those claims are being asserted against a particular
defendant in his individual or official capacity, or both. Therefore, out of fairness and an abundance
of caution, the Court will presume that Childress intended to assert all of his claims against
defendants in their official capacity as well as their individual capacity.
Childress contends that his arrest, detention, and resulting curtailment of his free
speech rights were the result of an official custom or policy of the City of Montgomery.
Specifically, Childress argues that, with knowledge that its policies and practices were
depriving people of their free speech rights, the City of Montgomery and Murphy ratified
Walker and Chavez’s actions and were deliberately indifferent to these constitutional
deprivations and others that may be “occurring on a regular and continuing basis.” (Doc.
#19.) Childress, however, has failed to identify or provide any evidence of an actual “policy
or custom” of the City of Montgomery that could form the predicate for his § 1983 official
capacity claims.18 He has pointed to no written custom or policy of MPD, such as a training
In his Complaint, Childress alleges that the “policies, practices and customs as applied
to Defendants” include, in pertinent part:
Defendants, through the highest ranking available supervisory personnel, or
designees, approved of, acquiesced to and/or condoned the violations in
general, thereby ratifying and approving the wrongful acts of their agents and
employees in their respective governmental agencies. Specifically, decisionmakers should not have allowed its agents and employees to seek and obtain
Plaintiff’s arrest and subject Plaintiff to an unlawful arrest and false
imprisonment in the course thereof. The Defendants, respectively, ratified
the conduct of its subordinates and those actions therefore became policy.
Defendants named in the preceding paragraphs of this claim for relief failed,
through knowing and/or reckless and/or deliberate and/or conscious
indifference, to instruct, supervise, control and discipline, on a continuing
basis, the duties of the personnel and officials to refrain from unlawful
actions leading to the arrest, intimidation and detention applied against
Plaintiff. Specifically, Defendants did not train and/or instruct and/or control
its officers properly because its officers would not otherwise seek and obtain
Plaintiffs [sic] arrest and detention, to intimidate and to subject Plaintiff to
the false imprisonment under the facts of this case. These deficiencies were
the moving force behind Plaintiff’s claim.
(Doc. #1-1, ¶ 68.) However, simply calling something a “policy, practice, or custom” does not make
or personnel policy, or an unwritten practice “that is so widespread and ‘so permanent and
well settled as to constitute a custom or use with the force of law’” to support this municipal
claim. Flowers v. Patrick, 869 F. Supp. 2d 1331, 1335 (M.D. Ala. 2012) (quoting City of St.
Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). Absent such evidence, Childress cannot
prove that a “policy or custom” of the City of Montgomery was the “moving force” behind
any purported constitutional violations he suffered or the “impetus behind any alleged
unconstitutional actions of the individual officers.” See Hamilton, 508 F. Supp. 2d at 1056;
Monell, 436 U.S. at 691. Finally, while Childress alleges that Murphy is a final policymaker
for the City of Montgomery, he has made no showing whatsoever that the alleged
constitutional deprivations he suffered can be tied to any policy attributable to Murphy.
Still, even in the absence of a policy or custom, inadequate police training or
supervision can establish § 1983 municipal liability. Although the Complaint in the case
leaves unclear the full scope of Childress’s official capacity claims, it appears from his
opposition to Defendants’ motion for summary judgment that inadequate police training and
supervision form the crux of his official capacity claims.
There are only limited
circumstances in which an allegation of failure to train or supervise can be the basis for
municipal liability under § 1983, namely, “where the municipality inadequately trains or
supervises its employees, this failure to train or supervise is a city policy, and that city policy
it so, particularly in the absence of any supporting evidence. Indeed, the submissions of the parties
have made it clear to the Court that Childress has failed to identify any specific “policy or custom”
of the City of Montgomery that caused his alleged constitutional deprivations.
results in the employees violating a citizen’s constitutional rights.” Hamilton, 508 F. Supp.
2d at 1056. “It is only when the failure to train amounts to ‘deliberate indifference’ that it
can properly be characterized as a ‘policy’ or ‘custom’ necessary for Section 1983 liability
to attach.” Id. (quoting Canton, 489 U.S. at 389).
“To establish a ‘deliberate or conscious choice’ or such ‘deliberate indifference, a
plaintiff must present some evidence that the municipality knew of a need to train and/or
supervise in a particular area and the municipality made a deliberate choice not to take
action.” Id. (quoting Bd. of Cnty. Comm’rs of Bryan, Oklahoma v. Brown, 520 U.S. 397,
407–09 (1997)). A plaintiff cannot rely on the actions of police officers during a single
incident of alleged unconstitutional conduct to establish “deliberate indifference.” Griffin
v. City of Clanton, Ala., 932 F. Supp. 1359, 1371 (M.D. Ala. 1996). Instead, a plaintiff must
establish a municipality’s knowledge of a need for training or supervision in a particular area
through showing knowledge or awareness of a history of widespread prior abuse or a prior
incident where constitutional rights were similarly violated. Gold, 151 F.3d at 1351. Absent
evidence of prior incidents or abuse, a municipality cannot have been deliberately indifferent
to the need to train or supervise in a particular area unless the need was obvious and the
likelihood of a constitutional violation was highly predictable.
Rather than pointing to some defect in the written policies or procedures of the City
of Montgomery with respect to training or supervision of officers, or offering evidence of
prior abuse or prior incidents of similar constitutional violations as those allegedly suffered
by Childress, Childress attempts to establish a basis for municipal liability by arguing that
the City of Montgomery’s Police Chief and arguably its final policymaker, Murphy, ratified
and enforced “policies of the defendants by arresting those persons lawfully assembled in a
public place who exercises [sic] their right to freedom of speech. With knowledge that the
policies and practices of the defendants had and are depriving people of freedom of speech,
including Plaintiff, with an unlawful arrest, the City of Montgomery and Murphy ratified
those acts.” (Doc. #19.)
However, Childress has presented no evidence to support a claim that the City of
Montgomery was deliberately indifferent to the need to train or supervise its officers in
arresting persons who are exercising their right to free speech at another group’s permitted
assembly. Childress has presented no evidence of prior abuse or prior incidents of
constitutional violations committed by officers that are similar to those that he allegedly
suffered. Childress has also pointed to no evidence indicating that the City of Montgomery
was on notice of a need to train or supervise its officers in a particular area, namely, arresting
individuals who are exercising their right to freedom of speech at another group’s permitted
assembly, and that the City of Montgomery made a deliberate choice not to take any action.
Summarily stating that Murphy and, consequently, the City of Montgomery was negligent
in its training and supervision of Walker and Chavez without providing any supporting
evidence does not make it so and certainly does not meet Childress’s onerous burden to
establish municipality liability under § 1983. Indeed, at the end of the day, Childress’s
arguments are premised on a theory of respondeat superior, which is not an appropriate basis
for municipal liability under § 1983. Thus, Defendants’ motion for summary judgment is
GRANTED as to all of Childress’s § 1983 official capacity claims against Walker, Chavez,
Claims Pursuant to 42 U.S.C. § 1985
In addition to his § 1983 claims, Childress asserts a claim against “Defendants” for
civil conspiracy to deprive him of his First Amendment rights in violation of 42 U.S.C. §
1985. (Doc. #1-1, Count VIII.) Again, it is unclear from the face of the Complaint which
“Defendants” Childress is asserting this claim against: Walker, Chavez, and Murphy, or
another combination of two. It is also unclear from the Complaint whether Childress is
asserting this claim against these Defendants in their individual capacities, their official
capacities, or both. Clarification of these issues, however, is unneeded, as Childress has
conceded his civil conspiracy claim by failing to address it in response to Defendants’
summary judgment motion. See Glass, 786 F. Supp. 2d at 210.
Even if Childress had responded in some meaningful way to Defendants’ summary
judgment arguments on his civil conspiracy claim, this claim would still fail as a matter of
law. Section 1985 precludes two or more persons from conspiring to interfere with civil
rights. Because Childress did not specify in his Complaint which subsection of § 1985 he
is proceeding under, the Court can only presume from the allegations of the Complaint that
he intended to assert a claim against Defendants under § 1985(3),19 which applies to civil
The other two subsections of § 1985 are inapplicable to this case. Subsection (1) applies
to civil conspiracies to prevent officers from performing certain duties and provides:
If two or more persons in any State or Territory conspire to prevent, by force,
intimidation, or threat, any person from accepting or holding any office, trust, or
conspiracies to deprive a person of “rights or privileges.” 42 U.S.C. § 1985(3). This
subsection, however, is rooted in the concept of equal protection, which would require
Childress to “show a racial or otherwise class-based discriminatory animus.” Woodard v.
Town of Oakman, 885 F. Supp. 2d 1216, 1236 (N.D. Ala. 2012). Childress has not and
cannot make such a showing here. Therefore, Defendants’ motion for summary judgment
on Childress’s civil conspiracy claim is GRANTED.
Municipal Liability Claim Pursuant to Ala. Code § 11-47-190
In opposition to Defendants’ motion for summary judgment, Childress attempts to
place of confidence under the United States, or from discharging any duties thereof;
or to induce by like means any officer of the United States to leave any State, district,
or place, where his duties as an officer are required to be performed, or to injure him
in his person or property on account of his lawful discharge of the duties of his
office, or while engaged in the lawful discharge thereof, or to injure his property so
as to molest, interrupt, hinder, or impede him in the discharge of his official duties[.]
42 U.S.C. § 1985(1). Subsection (2), on the other hand, applies to civil conspiracies to obstruct
justice or intimidate parties, witnesses, or jurors and provides:
If two or more persons in any State or Territory conspire to deter, by force,
intimidation, or threat, any party or witness in any court of the United States from
attending such court, or from testifying to any matter pending therein, freely, fully,
and truthfully, or to injure such party or witness in his person or property on account
of his having so attended or testified, or to influence the verdict, presentment, or
indictment of any grand or petit juror in any such court, or to injure such juror in his
person or property on account of any verdict, presentment, or indictment lawfully
assented to by him, or of his being or having been such juror; of if two or more
persons conspire for the purpose of impeding, hindering, obstructing, or defeating,
in any manner, the due course of justice in any State or Territory, with intent to deny
to any citizen the equal protection of the laws, or to injure him or his property for
lawfully enforcing, or attempting to enforce, the right of any person, or class of
persons, to the equal protection of the laws[.]
42 U.S.C. § 1985(2). Neither of these subsections apply to the allegations set forth in Childress’s
allege for the first time a claim against the City of Montgomery under Ala. Code § 11-47190, based on the purported neglectfulness, unskillfulness, and carelessness of its agents,
employees, or officers (i.e., Walker, Chavez, and Murphy). (Doc. #19.) Childress argues
this claim in his opposition brief despite the fact that he never pled such a claim in his
Complaint and has never sought leave to add such a claim through an amendment to his
Complaint. (Doc. #1-1.) Further, even though the City of Montgomery has defended
Childress’s official capacity claims against Walker, Chavez, and Murphy, the City of
Montgomery has never been named as a defendant in this action, and the City of
Montgomery Police Department was dismissed early in this litigation as a legal entity not
subject to suit under § 1983. (Doc. #9.)
Although Defendants failed to address Childress’s § 11-47-190 argument in their
summary judgment reply, it is well-settled that a plaintiff may not amend his complaint
through argument in a brief opposing summary judgment. See, e.g., Gilmour v. Gates,
McDonald and Co., 382 F.3d 1312, 1315 (11th Cir. 2004). As such, the Court will not
entertain Childress’s dilatory attempt to assert a claim against the City of Montgomery under
§ 11-47-190 through arguments in opposition to Defendants’ summary judgment motion.
For the reasons stated above, it is hereby ORDERED as follows:
Defendants’ Motion for Summary Judgment (Doc. #15) is DENIED with
respect to Childress’s individual capacity claims asserted against Walker and Chavez in
Counts I, II, III, and V of the Complaint;
Defendants’ Motion for Summary Judgment (Doc. #15) is GRANTED with
respect to Childress’s individual capacity claims asserted against Walker and Chavez in
Count IV of the Complaint;
Defendants’ Motion for Summary Judgment (Doc. #15) is GRANTED with
respect to Childress’s individual capacity claims asserted against Murphy in Counts IV, V,
VI, and VII of the Complaint;
Defendants’ Motion for Summary Judgment (Doc. #15) is GRANTED with
respect to Childress’s civil conspiracy claim asserted against all Defendants in Count VIII
of the Complaint;
Defendants’ Motion for Summary Judgment (Doc. #15) is GRANTED with
respect to all claims asserted against Walker, Chavez, and/or Murphy in their official
DONE this the 30th day of April, 2013.
/s Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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