Petkovich v. The City of Montgomery, Alabama et al

Filing 36

MEMORANDUM OPINION AND ORDER: ORDERED that the 30 Motion to Dismiss isGRANTED, and all remaining claims against Defendants Jamie Reynolds and Gary Hicks are DISMISSED with prejudice. Signed by Honorable Judge W. Harold Albritton, III on 4/23/2015. (kh, )

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

KARL PETKOVICH,
Plaintiff,
v.

JAMIE REYNOLDS, in his individual
capacity, and GARY HICKS,
in his individual capacity,1
Defendants.

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CIVIL ACTION NO. 2:14-cv-923-WHA
(WO)

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This cause is before the court on the Defendants’ Motion to Dismiss (Doc. # 30) for
failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).2
Also before the court are the Plaintiff’s Response (Doc. # 34) and the Defendants’ Reply thereto
(Doc. # 35). The court previously dismissed all claims against the City of Montgomery on
January 21, 2015 (Doc. # 23). This Motion by the remaining individual Defendants followed on
February 24, 2015. For the reasons to be discussed below, the Defendants’ Motion is due to be
GRANTED.
II. STANDARD OF REVIEW
The court accepts the plaintiff’s factual allegations as true, Hishon v. King & Spalding,
467 U.S. 69, 73 (1984), and construes the complaint in the plaintiff’s favor, Duke v. Cleland, 5

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Counsel for the Defendants has shown Defendants in the style of the Motion to Dismiss simply as “Reynolds and
Hicks.” The court points out to the attorney that this is the proper way to style a pleading in court.
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The Defendants have not specified the subpart of Rule 12(b) upon which they rely. Based on the arguments and
case law contained in the motion, the court construes it as filed pursuant to Rule 12(b)(6), even though it does not
say so.

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F.3d 1399, 1402 (11th Cir. 1993). In analyzing the sufficiency of pleading, the court is guided by
a two-prong approach: one, the court is not bound to accept conclusory statements of the
elements of a cause of action and, two, where there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to entitlement
to relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). “[A] plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a complaint need not
contain “detailed factual allegations,” but instead the complaint must contain “only enough facts
to state a claim to relief that is plausible on its face.” Id. at 570. The factual allegations “must be
enough to raise a right to relief above the speculative level.” Id. at 555.
III. FACTS
The Plaintiff alleges the following facts, as summarized by the court in a previous order:
Until the events underlying this litigation occurred, Plaintiff was employed
as a City of Montgomery police officer. On August 6, 2002, he was asked to
come to the Montgomery Police Department and surrender his badge and weapon.
Plaintiff was interviewed, then transported to his home. His home was searched
pursuant to a search warrant and his personal computer was seized. The
investigatory interview, warrant, and search were based on suspicions that
Plaintiff had “sent and/or received salacious images to and/or from a female under
the age of eighteen years.” (Doc. # 1 at 3 ¶ 10.) Later in the same month,
Defendants Reynolds and Hicks (also police officers) and Lt. John McCall came
to Plaintiff’s home, entered without a warrant, and seized Plaintiff’s and his
wife’s firearms from a locked safe. In September, police department employees
released statements about the allegations to the media despite Plaintiff’s petition
to the District Court to prevent false information from being released. After a
hearing in Montgomery County Circuit Court, Plaintiff was terminated. The
Mayor of Montgomery made statements to the public to the effect that Plaintiff
was terminated because child pornography was found on Plaintiff’s personal
computer.
Plaintiff was indicted on two misdemeanor counts, Contributing to the
Delinquency of a Minor and Distributing Materials Harmful to Minors, on June
12, 2003. The completion of his criminal case, by agreement with the
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Montgomery County District Attorney, was delayed while Plaintiff deployed to
Iraq on active military duty. Plaintiff returned in February 2005, and the
following month the Distributing Materials Harmful to Minors charge was nolle
prossed, on March 23, 2005. Two days later, Plaintiff pled guilty, best interest
plea with no admission of guilt, to the Contributing to the Delinquency of a Minor
Charge. He pled guilty because he was scheduled to relocate for a United States
Army position and could not do so while the case was pending.
The underlying evidence in the criminal prosecution consisted of images
found on Plaintiff’s computer, but a witness for the State “testified that the
metadata contained in the image indicated that the image was created or modified
on August 21, 2002—fifteen days after the disc had been confiscated by the
City.” (Doc. # 1 at 4 ¶ 20.) The City and its agents were aware that evidence had
been fabricated and continued with the prosecution nonetheless.
After the Plaintiff petitioned for post-conviction relief, the trial court
found that Plaintiff had been indicted after the applicable statute of limitations had
run, meaning that the court had no jurisdiction to accept Plaintiff’s plea. After the
State appealed, the Alabama Court of Criminal Appeals affirmed the trial court’s
decision.
(Doc. # 23 at 2–4.)
IV. DISCUSSION
The Plaintiff’s original Complaint contained three Counts. The court allowed the
Plaintiff to file an Amended Complaint in response to a Motion to Dismiss filed by the City. The
Amended Complaint, to which the instant Motion to Dismiss is addressed, deleted a claim for
unreasonable seizure of property which had been included in one of those Counts.
At this stage of the case, two of the Plaintiff’s original three claims remain. The first,
Count I, is styled “Unreasonable Seizure of Plaintiff’s Person in Violation of the Fourth
Amendment to the United States Constitution” and is brought pursuant to 42 U.S.C. § 1983.
(Doc. # 18-1 at 2.) Count II was a claim filed only against the City of Montgomery, and has
been dismissed. The second remaining claim, Count III, is labeled as a state law claim for
malicious prosecution. (Doc. # 18-1 at 4.) The court will discuss each of the two remaining
claims in turn.

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A. Plaintiff’s § 1983 Claim
1. Pleading Standard
Before proceeding to the substantive claims, the court must address the threshold
question of whether there is a heightened pleading standard in § 1983 cases. The Defendants
claim in their Motion to Dismiss that the Eleventh Circuit uses a heightened pleading standard
requiring “a § 1983 plaintiff to allege with some specificity the facts which make out its claim.”
(Doc. # 30 at 2 ¶ 3 (quoting GJR Invs. v. Cnty. of Escambia, 132 F.3d 1359, 1367 (11th Cir.
1998)). However, as recognized by the Plaintiff’s counsel in brief, this heightened pleading
standard no longer exists. Instead, as stated earlier, § 1983 claims are governed by the standards
set forth in Twombly and Iqbal. See Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010)
(“Pleadings for § 1983 cases involving defendants who are able to assert qualified immunity as a
defense shall now be held to comply with the standards described in Iqbal.”). While one panel
decision shortly after Randall did employ the heightened pleading standard, the consensus in the
Eleventh Circuit is that Randall is controlling precedent and motions to dismiss in cases of this
type are to be governed by Twombly and Iqbal. See Washington v. Albright, 814 F. Supp. 2d
1317, 1320–24 (M.D. Ala. 2011) (summarizing the history of the heightened pleading
requirement and concluding that the Randall approach was the law of the circuit); see also Cole
v. City of Tarrant, No. 2:14-CV-1737-VEH, 2014 WL 6453910, at *5 (N.D. Ala. Nov. 17, 2014)
(following Randall in deciding a motion to dismiss in which qualified immunity was raised).
For these reasons, the court will not employ the pleading standard set forth in GJR, as
Defendants’ counsel argues, since that standard is now outdated under more recent case law.
Instead, the court will apply the pleading standard set forth in Twombly and Iqbal, as described
above.

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2. Substance of Claim
In support of their Motion to Dismiss the Plaintiff’s § 1983 claim, the Defendants argue
that they never “initiated a legal proceeding” against the Plaintiff, and that because his
prosecution was initiated through an indictment, the Defendants did not themselves effect any
seizure of the Plaintiff’s person, let alone an unreasonable and unconstitutional seizure. Because
of these facts, the Defendants assert, they are entitled to qualified immunity and the claim should
be dismissed. In response, the Plaintiff argues that the Complaint sufficiently alleges that the
Defendants terminated his employment, seized his personal property, and fabricated
incriminating evidence on his computer; all of which combined constitutes a claim for
unreasonable seizure in violation of the Fourth Amendment. For the reasons to be discussed
below, the court finds that the Plaintiff has not made a legally sufficient claim that the
Defendants effected an unreasonable seizure of his person.
The Eleventh Circuit has recognized malicious prosecution as a Fourth Amendment
violation cognizable as a § 1983 claim. Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003). It
appears that this is the type of claim set forth in the Amended Complaint, as the Plaintiff pleads
that “Defendants initiated a judicial proceeding against the plaintiff without probable cause, and
yet with malice.”3 (Doc. # 18-1 at 2 ¶ 9.) To make out such a claim, the Plaintiff “must prove
two things: (1) the elements of the common law tort of malicious prosecution; and (2) a violation
of his Fourth Amendment right to be free from unreasonable seizures.” Grider v. City of
Auburn, Ala., 618 F.3d 1240, 1256 (11th Cir. 2010). The Eleventh Circuit has set out the

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While the Plaintiff does specifically allege that Defendant Reynolds took weapons from his home without a
warrant during the month following the seizure of his computer, his § 1983 claim is not labeled or pled as a claim
for unreasonable seizure of his personal property or as an unreasonable search. The court infers that this
unreasonable seizure claim, labeled as unreasonable seizure of the person, is intended to be the malicious
prosecution variety of Fourth Amendment claim, as the Plaintiff has not alleged false arrest or excessive force and
relies heavily on the allegation that the Defendants “instituted a judicial proceeding” against him for the purposes of
both his § 1983 claim and his state law claim.

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elements of the first prong of the test, the common law tort of malicious prosecution, as follows:
“(1) a criminal prosecution instituted or continued by the present defendant; (2) with malice and
without probable cause; (3) that terminated in the plaintiff accused’s favor; and (4) caused
damage to the plaintiff accused.” Wood, 323 F.3d at 881–82 (citing Uboh v. Reno, 141 F.3d
1000, 1004 (11th Cir. 1998)). The court notes, as did the panel in Wood, that these are also the
required elements in Alabama for the state law tort of malicious prosecution. Id. at 882 (citing
Delchamps, Inc. v. Bryant, 738 So. 2d 824, 831–32 (Ala. 1999)).
Here, the Plaintiff has sufficiently pled the third and fourth elements listed in Wood. The
Amended Complaint states that the proceeding against him “ended in [his] favor and his
conviction was set aside,” and adds that the prosecution caused damage because his “career in
law enforcement was destroyed, his reputation ruined in his former community and plaintiff was
caused to incur substantial costs in the defense of this charge.” (Doc. # 18-1 at 2 ¶ 9.) The key
deficiency in the Amended Complaint as to this claim is the plausibility of the allegations that
the particular individual Defendants in this case “instituted or continued” a criminal prosecution
of the Plaintiff.
a. None of the facts alleged by the Plaintiff create a plausible inference that either
Defendant instituted or any manner initiated the judicial proceeding against the
Plaintiff.
In Alabama, a criminal prosecution begins in one of three ways: “finding an indictment,
the issuing of a warrant or by binding over the offender.” Ala. Code § 15–3–7. Here, the
Plaintiff’s prosecution began when he was indicted on June 12, 2003. (Doc. # 1 at 3 ¶ 15.)
Although the Plaintiff alleges that “Defendants initiated a judicial proceeding against the plaintiff
without probable cause, and yet with malice” (Doc. # 18-1 at 2 ¶ 9), the Amended Complaint

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does not allege sufficient facts to lead to the plausible inference that these remaining Defendants
themselves in fact “initiated a judicial proceeding.”
The Amended Complaint4 makes no reference to actions by the remaining individual
Defendants that were at all connected to bringing about the indictment of the Plaintiff. Insofar as
the Defendants themselves are concerned, the Complaint alleges specifically that (1) both
Defendants visited the Plaintiff’s home in August 2002 (Doc. # 1 at 3 ¶ 11); and (2) “[w]ithout a
warrant, Reynolds entered into Plaintiff’s house and impounded his guns, including his wife’s
pistol, from the safe in which they were locked” (Id.). The Plaintiff does not allege that either
Defendant was involved in any of the events that occurred on August 6, 2002, when the Plaintiff
was asked to relinquish his badge and weapon and was transported back to his home by
Montgomery police officers, who then seized his personal computer. (Doc. # 1 at 2–3 ¶ 10.)
The Plaintiff further does not allege any facts that connect his indictment to either Defendant.
For these reasons, the Amended Complaint does not sufficiently allege the first element
of the unreasonable seizure claim in this case—that “a criminal prosecution [was] instituted or
continued by the present defendant.” Wood, 323 F.3d at 882. While the Amended Complaint
alleges that a judicial proceeding was instituted against the Plaintiff, it contains no factual
allegations sufficient to create a plausible inference that the named Defendants were involved in
initiating the proceeding, and thus it does not “raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555.

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The Amended Complaint (Doc. # 18-1) makes reference to and incorporates parts of the original Complaint (Doc.
# 1), albeit in violation of M.D. Ala. Local Rule 15.1. Therefore, although the court is determining the legal
sufficiency of the Amended Complaint, some citations will be to the original Complaint.

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b. The claim also independently fails because none of the Plaintiff’s allegations give
rise to a plausible inference of malice on the part of either Defendant.
The second element of the type of unreasonable seizure claim at issue here is that a
judicial proceeding was instituted against the Plaintiff “with malice and without probable cause.”
Even giving the Plaintiff the benefit of assuming there was not probable cause, none of his
factual allegations support the inference that either Defendant acted with malice. The Plaintiff’s
allegations of malice take the form of “labels and conclusions,” id., which the court is not bound
to accept because they amount to conclusory statements made without additional supporting
factual allegations.
Specifically, the Amended Complaint alleges that (1) “Defendants initiated a judicial
proceeding against the plaintiff without probable cause, and yet with malice” (Doc. # 18-1 at 2
¶ 9); and (2) “Defendants acted willfully, maliciously, under a mistaken interpretation of the law
. . . .” (Id. at 3 ¶ 12). These allegations are not sufficient to sustain the claim of malice because
“a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555.
The factual allegations in the Amended Complaint, taken as true, fail to create a plausible
inference that the Plaintiff is entitled to relief against these individual Defendants under the
Fourth Amendment. The Amended Complaint does not allege facts sufficient to satisfy the first
prong of the Eleventh Circuit test for a § 1983 malicious prosecution claim. The Plaintiff’s
§ 1983 claim of unreasonable seizure does not reach the threshold required by the Supreme
Court in Twombly and Iqbal.
c. The Defendants are also entitled to qualified immunity.
Because the Amended Complaint does not make out a legally sufficient Fourth
Amendment claim, it is also appropriate to dismiss the claim on the basis of qualified immunity.
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See, e.g., Epps v. Watson, 492 F.3d 1240, 1243 (11th Cir. 2007) (“Unless the plaintiff’s
allegations state a claim of violation of clearly established law, a defendant pleading qualified
immunity is entitled to dismissal before the commencement of discovery.”) (quoting Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)).
In assessing qualified immunity at the motion-to-dismiss stage, the court must determine,
in whichever order it deems appropriate, “(1) whether the facts alleged make out a violation of a
constitutional right; and (2) whether that right was ‘clearly established’ at the time of the alleged
misconduct.” Bratt v. Genovese, No. 8:13-CV-3210-T-36AEP, 2014 WL 6832644, at *2 (M.D.
Fla. Dec. 3, 2014) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). Here, for the reasons
discussed above, the facts alleged do not make out a violation of a constitutional right by these
Defendants. The court cannot draw any plausible inferences from the facts alleged that the
Defendants unreasonably seized the Plaintiff’s person by instituting a judicial proceeding or in
any other manner. And, even if the Amended Complaint could be read to allege a constitutional
violation, it clearly does not allege violation of a clearly established right. Therefore, the
Defendants are entitled to qualified immunity.
For these reasons, the Motion to Dismiss is due to be GRANTED as to the Plaintiff’s
§ 1983 unreasonable seizure claim.
B. State Law Malicious Prosecution Claim
In alleging a claim for state law malicious prosecution, the Amended Complaint asserts
that the “City and the individual officers instituted a judicial proceeding against the plaintiff,”
and that they “did so without probable cause, and perpetuated the proceeding with evidence
which was fabricated or altered by the City and while in its custody.” (Doc. # 18-1 at 4 ¶¶ 21–
22.) The individual Defendants argue that they are protected against this claim by state-agent

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immunity under Alabama law. This type of immunity is described in depth in Ex parte
Cranman, 792 So. 2d 392 (Ala. 2000), which specifies the situations in which state agents are
immune from tort liability. Id. at 405. In Cranman, the Alabama Supreme Court restated the
rule of state-agent immunity 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 [activities falling within any one of several listed categories].” Id. (emphasis in
original).
Also relevant in this case is peace officer discretionary function immunity, as provided
for in Ala. Code § 6–5–338. The statute states that peace officers, as defined in the statute, “shall
at all times be deemed to be officers of this state, and as such shall have immunity from tort
liability arising out of his or her conduct in performance of any discretionary function within the
line and scope of his or her law enforcement duties.” Ala Code. § 6–5–338(a). The Alabama
Supreme Court has incorporated this statutory immunity into the state-agent immunity doctrine
described in Cranman. In Hollis v. City of Brighton, 950 So. 2d 300 (Ala. 2006), it determined
that the immunity provided to peace officers under § 6–5–338 was broader than the overlapping
fourth category set out in Cranman, and expanded that category accordingly. Id. at 309.
Specifically, the court reasoned that:
Given the divergence between the scope of the immunity granted by § 6–5–
338(a)—“conduct in performance of any discretionary function within the line
and scope of his or her law enforcement duties”—and summarized in category (4)
of the Cranman restatement—“exercising judgment in the enforcement of the
criminal laws of the State ....”—we conclude that immune category 4 of the
Cranman restatement should be expanded to restate the law of immunity in this
area so as to reflect § 6–5–338(a).
Id. After Hollis, the modified Cranman formulation of the fourth category of activities protected
by state-agent immunity included situations where the agent was “(4) exercising judgment in the

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enforcement of the criminal laws of the State, including, but not limited to, law-enforcement
officers’ arresting or attempting to arrest persons, or serving as peace officers under
circumstances entitling such officers to immunity pursuant to § 6–5–338(a), Ala. Code 1975.”
Id. (emphasis of additional language in original).
Because statutory immunity under § 6–5–338 is treated as a subcategory of the broader
doctrine of state-agent immunity, the Alabama Supreme Court continues to apply the exceptions
to state-agent immunity listed in Cranman in cases in which statutory peace officer immunity is
implicated. See, e.g., Ex parte Coleman, 145 So. 3d 751, 757–58 (Ala. 2013); Ex parte City of
Montgomery, 99 So. 3d 282, 293–94 (Ala. 2012). State-agent immunity does not apply:
(1) when the Constitution or laws of the United States, or the Constitution of this
State, or laws, rules, or regulations of this State enacted or promulgated for the
purpose of regulating the activities of a governmental agency require otherwise;
or
(2) when the State agent acts willfully, maliciously, fraudulently, in bad faith,
beyond his or her authority, or under a mistaken interpretation of the law.
Cranman, 792 So. 2d at 405.
State-agent immunity is analyzed using a burden shifting test, as described in Ex parte
Estate of Reynolds, 946 So. 2d 450 (Ala. 2006):
In order to claim State-agent immunity, a State agent bears the burden of
demonstrating that the plaintiff’s claims arise from a function that would entitle
the State agent to immunity. If the State agent makes such a showing, the burden
then shifts to the plaintiff to show that the State agent acted willfully, maliciously,
fraudulently, in bad faith, or beyond his or her authority.
Id. at 452. In this case, the Plaintiff argues that the Defendants acted willfully and maliciously
and does not argue that the Defendants’ activities fell outside “the line and scope of his or her
law enforcement duties.” § 6–5–338(a). The court presumes that the Plaintiff concedes this
point, and further finds that the activities alleged in the Amended Complaint, entering the
Plaintiff’s home while on duty and seizing weapons, do “arise from a function that would entitle
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the State agent to immunity.” Ex parte Estate of Reynolds, 946 So. 2d at 452. The Defendants
have made their showing by arguing that the Plaintiff does not dispute they were employed as
law enforcement officers and that “[t]heir involvement in any investigation or arrest would be in
their capacity as law enforcement officers.” (Doc. # 30 at 6.) Therefore, the burden shifts to the
Plaintiff to show in his Amended Complaint that he can make out a claim that the Defendants
“acted willfully, maliciously, fraudulently, in bad faith, or beyond [their] authority.” Ex parte
Estate of Reynolds, 946 So. 2d at 452.
The Plaintiff does in fact allege that the Defendants acted in this manner. However, for
the same reasons discussed in regards to the federal § 1983 claim above, the Amended
Complaint does not state factual allegations giving rise to a plausible inference that the
Defendants acted with malice. The Plaintiff argues that “[c]osting a man his profession and his
personal freedom by fabricating evidence is the essence of an act ‘committed willfully,
maliciously, and outside the scope of [the Defendants’] authority.’” (Doc. # 34 at 6.) The
problem with this argument is that nothing in the Complaint links these individual Defendants to
the allegedly fabricated evidence. Accepting as true the allegation that someone fabricated
evidence on the Plaintiff’s computer, there are no allegations that connect the fabrication to the
Defendants. As discussed above, the only specific actions by these Defendants listed in the
Amended Complaint are their arrival at the Plaintiff’s home during the month after the Plaintiff’s
computer was seized and the seizure of personal weapons from the home. Ultimately, all
allegations of malice on the part of the Defendants amount to legal conclusions or mere
speculation without additional supporting factual assertions. (See Doc. # 18-1 at 5 ¶¶ 23, 25
(alleging in a conclusory fashion that the Defendants instituted a judicial proceeding without
probable cause and that they acted “willfully and with malice” and that they acted “willfully,

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maliciously, under a mistaken interpretation of the law and/or outside their authority after the
statute of limitations had expired and with evidence they knew to be fabricated”)).
For these reasons, the court finds that the Defendants were acting within the scope of
their discretionary functions as peace officers, and that, taking the factual allegations in the
Amended Complaint as true, none of the allegations give rise to an inference that the Defendants
acted maliciously. Therefore, the Defendants are entitled to state-agent immunity under
Alabama case law and § 6–5–338, and the Motion to Dismiss will be GRANTED as to the
Plaintiff’s state law malicious prosecution claim.
V. CONCLUSION
For the stated reasons, it is hereby ORDERED that the Motion to Dismiss (Doc. # 30) is
GRANTED, and all remaining claims against Defendants Jamie Reynolds and Gary Hicks are
DISMISSED with prejudice.
DONE this 23rd day of April, 2015.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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