Stallworth v. Hurst et al

Filing 40

MEMORANDUM OPINION AND ORDER directing as follows: (1) def Foshee's 28 MOTION TO DISMISS is GRANTED IN PART AND DENIED IN PART; (2) def Hurst's 29 MOTION to Dismiss is GRANTED; (3) defs Harmon & McCartney's Joint 31 MOTION to Dismiss is GRANTED; (4) All claims against Hurst and Foshee in their official capacities are DISMISSED WITHOUT PREJUDICE; (5) all claims against Harmon and McCartney in whatever capacity are DISMISSED WITH PREJUDICE. Signed by Honorable Judge Andrew L. Brasher on 10/8/2019. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ORRILYN MAXWELL
STALLWORTH,
Plaintiff,
v.
RODNEY W. HURST, et al.,
Defendants.

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NO. 2:18-cv-1005-ALB-SRW

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendant Foshee’s Motion to Dismiss
(Doc. 28), Defendant Hurst’s Motion to Dismiss (Doc. 29), and Defendants Harmon
and McCartney’s Joint Motion to Dismiss (Doc. 31). As explained below, the
motions filed by Hurst, Harmon, and McCartney are due to be GRANTED. The
motion filed by Foshee is due to be GRANTED IN PART and DENIED IN PART.
BACKGROUND
At around 10 PM on a December night, Orrilyn Stallworth (“Plaintiff”)
decided to visit a convenience store in Chilton County just off the Verbena exit.
Doc. 27 ¶10. When she drove back onto I-65, a police car began to follow her. Id.
¶12. Although she had violated no rule of the road, Stallworth was ordered to pull
over. Id.

After pulling Stallworth over, Defendant Rodney Hurst (“Hurst”), a Sheriff’s
deputy with the Chilton County Sheriff’s Office, was joined by Defendant Matt
Foshee (“Foshee”), who was a Clanton City police officer, and an unnamed third
party. Id. ¶14. Hurst told Stallworth that he had detected the fetid odors of alcohol
and marijuana emanating from her vehicle.

Id. ¶¶16-17.

After obtaining

Stallworth’s consent, the officers searched her vehicle for both alcohol and
marijuana but were unsuccessful in locating either. Id. ¶¶18-19.
Despite their unsuccessful search, Hurst informed Stallworth that he would
have to arrest her. Id. ¶20. She was arrested for driving under the influence and
taken to Chilton County Jail. Id. Stallworth’s vehicle was towed and impounded,
and she was subjected to a breath-alcohol content analysis test, which revealed no
alcohol in her system, as well as a blood test. Id. ¶¶25-26. These procedures were
put in place and enforced by Defendants Corry McCartney (“McCartney”), a
corporal in the Chilton County Sheriff’s office, and Kenneth Harmon (“Harmon”),
a captain in the same office. Stallworth was then formally charged by Hurst with
driving under the influence and booked into jail. Id. ¶27.
Just before trial, the State’s attorney moved to dismiss the charges with
prejudice and offered no explanation for this decision. Id. ¶31. Stallworth believes
that the State dismissed the charges against her because it knew Hurst had no

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probable cause for her arrest. Id. ¶32. She filed a civil suit against the officials
involved in her arrest and requested damages.
This Court previously granted a motion to dismiss filed by Defendants
McCartney and Harmon. See Doc. 25. Plaintiff chose to file an amended complaint,
(Doc. 27), and this matter comes before the Court on various motions to dismiss
filed by the officers involved.
STANDARD
When considering a motion to dismiss, the court accepts all facts alleged in
the complaint as true and draws all reasonable inferences in the plaintiff’s favor.
Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010). There are two
questions a court must answer before dismissing a complaint. First, the court must
ask whether there are allegations that are no more than conclusions. If there are,
they are discarded. Second, the court must ask whether there are any remaining
factual allegations which, if true, could plausibly give rise to a claim for relief. If
there are none, the complaint will be dismissed. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007).
DISCUSSION
Plaintiff’s amended complaint contains three claims. The first arises from 42
U.S.C. §1983 and alleges that she was detained without probable cause in violation
of her Fourth Amendment rights.

The named Defendants are Hurst, Foshee,
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Harmon, McCartney, and an unknown deputy from Chilton County. The second
claim alleges malicious prosecution in violation of 42 U.S.C. §1983 and it is brought
against all Defendants except Foshee. The third count alleges false arrest under
Alabama state law and is brought only against Foshee. All Section 1983 claims have
been brought against the named individuals in both their individual and official
capacities as employees of local governments or the State of Alabama. Plaintiff
seeks monetary damages and other non-economic damages.
1. Rodney Hurst
Hurst has moved to dismiss only the claims that have been brought against
him in his official capacity, and Plaintiff has conceded those claims. See Doc. 36.
The claims against Hurst in his official capacity will therefore be dismissed. The
claims against Hurst in his personal capacity remain.
2. Matt Foshee
Plaintiff alleges that, in violation of the federal constitution (Count 1) and state
law (Count 3), Foshee actively participated in and passively failed to prevent her
arrest despite knowing that Hurst had no probable cause. See Doc. 27 ¶¶33-38 and
¶¶42-45. Foshee argues that Plaintiff’s allegations are insufficient to state claims
against him and that he is immune from suit.

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An officer can be held liable under both federal and state law for actively
participating in an arrest that he knows is not based on probable cause. To establish
Section 1983 liability for false arrest in the Eleventh Circuit, a plaintiff must allege
an affirmative causal connection between the officer’s acts or omissions and the
alleged violation. Brown v. City of Huntsville, Ala., 608 F.3d 724, 737 (11th Cir.
2010). This can be accomplished by proving that the official was personally
involved in the acts that resulted in the constitutional deprivation. Id. Similarly,
making out a claim under Alabama law for false arrest and imprisonment requires
an allegation that the officer directly caused the plaintiff to be arrested. Ex parte
Harris, 216 So. 3d 1201, 1213 (Ala. 2016).
Plaintiff erroneously argues that the Eleventh Circuit has also recognized a
cause of action under §1983 against law enforcement officials who passively fail to
intervene in an unlawful arrest.1 The Eleventh Circuit first discussed a cause of
action along these lines in Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986). The
ruling in Byrd pertained only to excessive force, but the court wrote that, “if a police
officer, whether supervisory or not, fails or refuses to intervene when a constitutional

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The Southern District of Florida has found a claim of failure to intervene in unlawful arrest to
be cognizable based on cases from the Seventh Circuit, the Second Circuit, and the Southern
District of New York. See Ball v. City of Coral Gables, No. 07-20949-CIV, 2007 WL 9706910,
at *5 (S.D. Fla. Dec. 19, 2007). But this logic does not square with the Eleventh Circuit’s own
cases on the subject, as explained below.
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violation such as an unprovoked beating takes place in his presence, the officer is
directly liable under Section 1983.” Id.
Subsequent Eleventh Circuit decisions have limited the cause of action in
Byrd to excessive force cases. It is one thing to require a police officer to stop his
partner from hitting someone with a baton. It is another to require that every officer
on the street actively inquire as to the constitutional merits and predicate of each
seizure by other officers, and then countermand seizures they believe are
unreasonable. It would effectively conscript every police officer to play the role of
internal affairs as well as peacekeeper.
Instead of establishing a duty to intervene in the context of unlawful arrest,
the Eleventh Circuit has recognized a “negligent involvement in unlawful arrest”
tort that exposes only those to liability who take part in causing unlawful arrests to
occur and possess actual knowledge that there is no constitutional basis for them.
See Brown v. City of Huntsville, Ala., 608 F.3d 724, 736-737 (11th Cir. 2010)
(holding that, for unlawful arrest liability under §1983, a plaintiff must show that the
officer was “personally involved in the acts that resulted in the constitutional
deprivation” such that “merely being present” was not enough); Lepone-Dempsey v.
Carroll Cty. Comm'rs, 159 F. App’x 916, 920 (11th Cir. 2005) (allowing a cause of
action for failure to intervene in unlawful arrest in a situation where excessive force
was used and holding that “our precedent suggests…that the duty to intervene does
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not necessarily extend to every conceivable situation involving a constitutional
violation”); Jones v. Cannon, 174 F.3d 1271, 1286 (11th Cir. 1999) (holding that
“there is no previous decision from the Supreme Court or this Circuit holding that
an officer has a duty to intervene…once [he] knows another officer has fabricated a
confession in a police report for a warrantless arrest”).
Plaintiff cites Wilkerson v. Seymour, 736 F.3d 974, 980 (11th Cir. 2013) in
support of the idea that an officer may be held liable for failing to stop an unlawful
arrest. But, in fact, that case undermines her position. In Wilkerson, the Eleventh
Circuit explained that its case law does “not preclude all failure to intervene claims
against a present, but non-arresting, officer in false arrest cases.” Wilkerson v.
Seymour, 736 F.3d 974, 980 (11th Cir. 2013). Plaintiff cites this statement for the
proposition that her proposed cause of action exists. But what Plaintiff does not cite
is the final sentence of that paragraph, where the court underscores that its precedents
require for liability that an officer know an arrest is unconstitutional and participate
in it. The court explained that “what is made explicit in Jones is that a participant in
an arrest, even if not the arresting officer, may be liable if he knew the arrest lacked
any constitutional basis and yet participated in some way.” Id.
Applying this case law to the facts as alleged in the Amended Complaint, the
Court concludes that Plaintiff’s claims against Foshee cannot be dismissed. Plaintiff

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has sufficiently alleged that Foshee knew there was no constitutional basis for the
arrest and participated in it anyway. See Doc. 27 ¶¶18-20. Plaintiff alleges that
Foshee knew the traffic stop was pretextual and had “determined and implicitly
agreed that plaintiff would be arrested upon some as-yet-unknown criminal charge
whether or not an actual basis or probable cause existed for said criminal charge.”
See Doc. 27 ¶15. Plaintiff also alleges that Hurst announced the ostensible basis for
the allegedly pretextual search in Foshee’s presence—that the car smelled of alcohol
and marijuana2—and that those statements were false. See Doc. 27 ¶¶ 16-17. Foshee
had the opportunity to determine for himself whether those statements were true or
false. Finally, Plaintiff alleges that all three officers on the side of the road proceeded
to “arrest [Plaintiff] for driving under the influence and transport her to the Chilton
County Jail.” See Doc. 27 ¶ 20. Although it may be difficult for Plaintiff to establish
at summary judgment or trial that Foshee was aware that there was no constitutional
basis for the arrest and still participated in it, Plaintiff has pleaded sufficient facts to
survive a motion to dismiss as to Foshee.

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If the smell of marijuana or alcohol was actually emanating from the vehicle, a reasonable
officer could conclude that probable cause existed to arrest the driver. See United States v. Giles,
No. 1:08-CR-0093-CAP-JFK, 2008 WL 11449123, at *6 (N.D. Ga. July 17, 2008) (smell of
marijuana can provide probable cause for arrest); United States v. Reed, No.
118CR00612KOBHNJ, 2019 WL 2710088, at *10 (N.D. Ala. May 3, 2019) (favorably citing the
proposition of Blake v. State, 772 So.2d 1200 (Ala. Crim. App. 2000) that “the odor of burning
marijuana emanating from the defendant’s automobile constituted probable cause to search the
defendant and his passenger and to arrest either for possession of marijuana.”).
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Neither party argues that the state law standards for false arrest and
involvement therewith are different than federal law standards. In light of the failure
of the parties to address this issue, the Court will assume without deciding that the
state law cause of action is the same as the federal law cause of action. Because the
Court has concluded there are sufficient allegations to state a Section 1983 claim
under federal law, Foshee’s motion to dismiss the state law claim is also due to be
denied.
Foshee also moved to dismiss the claims against him based on immunity. As
to the federal claim, Plaintiff agrees that it should be dismissed to the extent it is
brought against Foshee in his official capacity. Accordingly, the federal official
capacity claim is dismissed. The federal claim brought against Foshee in his
personal capacity will survive because federal immunity will be abrogated as the
requirements laid out by Wilkerson have been met.
As to the state-law claims, Plaintiff argues that both the official capacity and
personal capacity claims should remain. Specifically, Plaintiff argues that Foshee is
not immune as to the personal capacity claim and the City of Clanton may be
vicariously liable for Foshee’s actions under state law for the official capacity claim.
Alabama law provides that a municipality may be held liable for the negligence of
its employees but not their intentionally wrongful acts. See Ala. Code § 11-47-190.

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Inversely, Alabama’s Peace Officer Immunity statute provides that officers are not
liable for negligence or carelessness, just their intentional acts. See Ala. Code § 6-5338. Plaintiff has not pleaded any state-law claim based on negligence or
carelessness. If she had, that claim would be barred in its entirety by Peace Officer
Immunity. Instead, Plaintiff has pleaded a state-law intentional tort based on
malicious and intentional conduct.
Where there is an alleged intentional tort, although there can be no municipal
liability under Alabama law, personal liability is not precluded by the Peace Officer
Immunity Statute. See Ex parte City of Gadsden, 718 So.2d 716, 721 (Ala. 1998)
(finding no municipal liability for promissory fraud and that municipalities are
insulated from liability for intentional torts committed by their agents); Hollis v. City
of Brighton, 950 So. 2d 300, 305 (Ala. 2006) (holding that, “Peace-officer immunity,
like State-agent immunity, does not provide immunity from liability for the
commission of an intentional tort, but only for negligence in the exercise of
judgment.”). Accordingly, the state law claim against Foshee in his official capacity
is due to be dismissed, but the state law claim against Foshee in his personal capacity
remains.
3. Kenneth Harmon and Corry McCartney

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The Court dismissed Plaintiff’s initial complaint against Harmon and
McCartney for failure to state a claim and gave Plaintiff an opportunity to replead.
The Court can detect no substantive change between Plaintiff’s allegations against
Harmon and McCartney in her first complaint, which the Court dismissed, and her
amended complaint, which the Court will now dismiss. Plaintiff accuses both
Harmon and McCartney of participation in unlawful seizure (Count 1) and malicious
prosecution (Count 2). Plaintiff attempts to make out the elements for these claims
with conclusory assertions that Harmon and McCartney actively caused Hurst to
violate her rights and passively failed to ameliorate the situation after they both
became aware of it. See Doc. 27 ¶¶30(a)-(e).
In Plaintiff’s first complaint she alleged that her drug and alcohol testing at
the station happened at the “direction or with the consent” of the supervisors, that
the decision to charge her was “ratified, condoned, and approved” by them, and
finally that her incarceration was “continued” in part due to the actions of the
supervisors. See Doc. 1 ¶¶ 23-28. This makes up the active component of Plaintiff’s
allegations against Harmon and McCartney. Plaintiff then goes on to allege that
both men are additionally liable because “they culpably and deliberately failed or
refused to review the evidence concerning the plaintiff’s arrest and detention” and
“culpably failed to supervise the actions of…Hurst.” Id. ¶ 28. This is Plaintiff’s
allegation of passivity.
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The Court’s previous order dealt with these allegations in turn. The Court
explained that there is no vicarious Section 1983 liability for police supervisors
based on the acts of their subordinates. See Doc. 25 at 3 citing Cottone v. Jenne,
326, 326 F.3d 1352, 1360 (11th Cir. 2003). For the active allegations, Plaintiff was
informed that the test for supervisory liability was a causal connection between the
act and the violation based on [1] a history of widespread abuse which puts the
supervisor on notice, [2] a supervisor’s custom or policy that causes the deprivation
of rights, or [3] facts supporting an inference that the supervisor directed the
subordinates to act unlawfully or knew that the subordinates would do so and failed
to stop it. Id. at 3-4 citing Cottone, 326 F.3d at 1360. For the passive allegations,
Plaintiff was informed that, “[t]here is no constitutional requirement for a
supervising officer to complete a full on-scene investigation of the basis for an arrest
for conduct he did not observe.” See Doc. 25 at 4 citing Wilkerson v. Seymour, 736
F.3d 978, 980 (11th Cir. 2013).
In the amended complaint’s recitation of the active allegations, Plaintiff was
once again subjected to alcohol and blood testing at the station but this time
“pursuant to standing or general orders promulgated and enforced” by Harmon and
McCartney. See Doc. 27 ¶25-26. Plaintiff was charged with a crime, but this time
with the “active and personal participation of” Harmon and McCartney. Id. ¶27.
The paragraph relating to incarceration is identical. Id. ¶28. In newly added
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subparagraphs 30(b)-(e), Plaintiff alleges that the two men “actively…participated,
intentionally…to

cause…the

unlawful…arrest,

charging,

detention,

and

imprisonment” of Stallworth and “set in motion a series of acts…that resulted in the
finalization of plaintiff’s arrest” even though they “should have known” it was
“unlawful.”
Plaintiff’s changes do not bring the complaint into compliance with the
requirements set forth in the first dismissal. A “standing order” to test people for
alcohol and drug use when they are arrested for driving under the influence is not a
“custom or policy” that causes constitutional deprivation. Further, while “active and
personal participation” does track the language of the test from the first dismissal,
there are no accompanying factual allegations that show what the officers allegedly
did to constitute such participation, rendering the general accusation conclusory.
Plaintiff also fails to tell the Court how the supervisors “set in motion a series of
acts.” Therefore, the Court finds that Plaintiff’s allegations of active deprivation are
once again insufficient to support claims of either unlawful arrest or malicious
prosecution.
Plaintiff’s improvement on her passive allegations is even less impressive. In
subparagraph 30(a), Plaintiff merely repeats her allegation that Harmon and
McCartney failed to independently ascertain the evidentiary basis for her arrest.

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This time, instead of “culpably and deliberately” failing to “review the evidence,”
they have “culpably intentionally, with gross negligence, recklessness, or deliberate
indifference” failed to review “the quality and sufficiency of the evidentiary
foundation.” Id. ¶30(a). Whether the two men failed to review the evidence because
of simple negligence or intentional malice is immaterial because, as the Court
mentioned in its earlier order to dismiss, they have no duty to do so. Plaintiff then
claims that the supervisors “acquiesced” in or “condoned” her detention, despite
having “actual knowledge” that her rights had been violated and that they had a duty
to withdraw her charges because the evidence known to them “did not establish
probable cause for her arrest.” Id. ¶30(d). Because Plaintiff alleges no facts that
could plausibly support the inference that such knowledge existed, let alone that both
men maliciously took steps to continue her prosecution despite it, the claim fails.
Although no new factual material was included in Plaintiff’s brief, Plaintiff
cites a multitude of federal circuit cases for the proposition that Harmon and
McCartney are liable “(1) for their direct and personal participation in the alleged
unconstitutional actions and (2) their deliberate failure to act that amounts to their
explicit or implicit authorization, approval or acquiescence in the constitutional
deprivation.” See Doc. 37 at 13. However, neither the Court nor Harmon or
McCartney has ever questioned whether law enforcement officials who are complicit
in conspiracies to violate constitutional protections can be held liable for such
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activity. They clearly can. Rather, the issue is that, despite using a number of
suggestive verbs like “condoned” and “acquiesced,” Plaintiff has carefully avoided
alleging even one single fact that might allow the Court to attach an inference to any
of them. Although the standard of pleading is a forgiving one, an assertion like
“deliberate failure to act” is conclusory if the complaint does not include any kind
of alleged fact that would allow an inference to support the assertion. See Burnett v.
Fulton Cty. Bd. of Educ., No. 1:07-CV-0300-JTC-AJB, 2007 WL 9702284, at *8
(N.D. Ga. June 20, 2007) (holding that “[d]espite the liberal pleading standard under
Fed. R. Civ. P. 8, courts have routinely dismissed complaints where a plaintiff makes
only conclusory allegations about a policy or custom.”); Associated Builders, Inc. v.
Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974) (holding that “[c]onclusory
allegations and unwarranted deductions of fact are not admitted as true.”).
In summary, Plaintiff’s well-plead allegations against Harmon and
McCartney are as follows: because Plaintiff was arrested by officers under the
nominal control of Harmon and McCartney, and because her case proceeded to the
state prosecutor without any intervention, they are responsible for both her detention
and prosecution. This is nothing but a claim for vicarious liability, and the law does
not allow such a claim.

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CONCLUSION
For the foregoing reasons, the Court ORDERS as follows:
1. Defendant Foshee’s Motion to Dismiss (Doc. 28) is GRANTED IN
PART AND DENIED IN PART.
2. Defendant Hurst’s Motion to Dismiss (Doc. 29) is GRANTED.
3. Defendants Harmon and McCartney’s Joint Motion to Dismiss (Doc. 31)
is GRANTED.
4. All claims against Hurst and Foshee in their official capacities are
DISMISSED WITHOUT PREJUDICE.
5. All claims against Harmon and McCartney in whatever capacity are
DISMISSED WITH PREJUDICE.

DONE and ORDERED this 8th day of October 2019.

/s/ Andrew L. Brasher
ANDREW L. BRASHER
UNITED STATES DISTRICT JUDGE

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