Wilkerson et al v. Hicks et al

Filing 89

OPINION AND ORDER: it is ORDERED that: (1) Defendants Brandon Hicks, Barry Rodgers, Jason Barron, Brandon Kirkland, and Michael Watts's 76 motion to dismiss is granted as to plaintiff Ulysses Wilkerson's 1983 claims for unlawful arrest ; (2) Defendants Hicks, Rodgers, Barron, Kirkland, and Watts's 76 motion to dismiss is denied with respect to plaintiff Wilkerson's 1983 claims for unlawful use of force, plaintiff Wilkerson's claims for assault and battery, and plai ntiff Angela Williams's claims for parent's damages under Alabama Code 6-5-390; (3) Plaintiffs Wilkerson and Williams's 71 & 87 motions for permission to conduct expedited and limited discovery are denied as moot. Signed by Honorable Judge Myron H. Thompson on 8/28/2024. (AM)

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
ULYSSES WILKERSON and
)
ANGELA WILLIAMS, as Mother )
of Ulysses Wilkerson,
)
)
Plaintiff,
)
)
v.
)
)
BRANDON HICKS, in his
)
individual capacity,
)
et al.,
)
)
Defendants.
)

CIVIL ACTION NO.
2:19cv898-MHT
(WO)

OPINION AND ORDER
Plaintiff

Ulysses

arrest.

He and his mother, plaintiff Angela Williams,

involved:

action

against

defendants

other

the

Brandon

injuries

cuts,

broken

this

and

sustained

bruises,

bring

bones,

Wilkerson

during

an

five

police

officers

Hicks,

Barry

Rodgers,

Jason Barron, Brandon Kirkland, and Michael Watts.
The complaint, as amended, consists of three counts
asserted
Williams.

by

Wilkerson
Each

of

the

and
four

one

count

counts

asserted

names

all

by
five

officers as defendants in their individual capacities.
Wilkerson contends that the officers subjected him to
wrongful arrest and excessive force in violation of the
Fourth and Fourteenth Amendments, as enforced through
42 U.S.C. § 1983.

He also brings claims for assault

and battery under Alabama law.

Because Wilkerson was a

minor at the time of the arrest, Williams separately
seeks

‘parent’s

Alabama

Code

damages’

from

§ 6-5-390.

the

officers

Jurisdiction

is

under
proper

pursuant to 28 U.S.C. § 1331 (federal question), § 1343
(civil rights), and § 1367 (supplemental).
This cause is before the court on the officers’
motion to dismiss and Wilkerson and Williams’s motion
for

expedited

discovery.

The

officers

note

that

Wilkerson has been adjudicated delinquent in juvenile
court

for

resisting

arrest

and

obstructing

justice,

which, in their view, precludes him from bringing his
§ 1983 claims.
to

qualified

They also argue that they are entitled
immunity

from
2

the

§ 1983

claims

and

state-agent

immunity

state-law claims.

from

Wilkerson’s

and

Williams’s

For the reasons set forth below, the

court will grant the officers’ motion to dismiss in
part and deny it in part.

Wilkerson and Williams’s

motion for expedited discovery will be denied as moot.

I. MOTION-TO-DISMISS STANDARD
In considering a motion to dismiss for failure to
state a claim under Federal Rule of Civil Procedure
12(b)(6),

the

court

accepts

the

plaintiffs’

factual

allegations as true, see Hishon v. King & Spalding, 467
U.S. 69, 73 (1984), and construes the complaint in the
plaintiffs’ favor, see Duke v. Cleland, 5 F.3d 1399,
1402 (11th Cir. 1993).
not

whether

a

At this stage, “[t]he issue is

plaintiff

will

ultimately

prevail

but

whether the claimant is entitled to offer evidence to
support the claims.”

Swierkiewicz v. Sorema N.A., 534

U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416
U.S. 232, 236 (1974)).

Generally, to survive a motion
3

to

dismiss,

a

complaint

need

not

contain

“detailed

factual allegations,” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007), but rather “only enough facts to
state a claim to relief that is plausible on its face,”
id. at 570.

“A claim has facial plausibility when the

plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
556 U.S. 662, 678 (2009).

Ashcroft v. Iqbal,

“The plausibility standard

is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has
acted unlawfully.”

Id. (quoting Twombly, 550 U.S. at

556).

II. FACTUAL BACKGROUND
The facts alleged in the complaint, taken in the
light most favorable to Wilkerson and Williams, are as
follows.
On December 23, 2017, Wilkerson, then 17 years old,
4

was walking alone in downtown Troy, Alabama, shortly
before midnight.

At the time, Hicks, Rodgers, Barron,

Kirkland, and Watts were officers of the Troy Police
Department.
seeinfg

They were patrolling the city by car when,

Wilkerson,

approached him.

they

exited

their

vehicles

and

Wilkerson fled, and a short foot chase

ensued.
Once the officers caught up with Wilkerson, they
placed him under arrest, though they did not tell him
why.

At some point, one or more of the officers began

punching and kicking him all over his head and body.
The

assault

continued

even

after

the

officers

had

restrained Wilkerson by pinning his hands to the ground
and

placing

them

in

handcuffs.

The

beating

left

Wilkerson with serious cuts, bruises, broken bones, and
other injuries.
Wilkerson was subsequently charged with obstructing
governmental operations and resisting arrest, and he
was adjudicated delinquent of both offenses in juvenile
5

court.

At the request of both parties, the court took

judicial notice of an unpublished “memorandum” from the
Alabama

Court

of

Criminal

Appeals

summarizing

the

evidence presented in the juvenile-court proceedings.
See Order (Doc. 47) at 3-4.
According to the memorandum, the officers testified
in the juvenile court that they were investigating a
string of vehicle break-ins when they saw Wilkerson.
After Wilkerson fled, and after the foot chase began,
one of the officers threatened to tase him if he did
not stop running.

Wilkerson eventually “stopped and

began to get down on one knee” when an officer drew his
taser.

Defs.’ Ex. 1 (Doc. 77-1) at 3-4.

The officer

then pushed Wilkerson to the ground, sat himself on
Wilkerson’s
right

hand.

lower
The

back,

and

officers

handcuffed

testified

Wilkerson’s

that

Wilkerson

started squirming to prevent them from handcuffing his
left hand.

Several officers piled on top of him, and

one of them punched him four or five times in the face.
6

After

Wilkerson

obstructing

justice

was
and

adjudicated
resisting

delinquent

arrest,

he

of

sought

review in the Alabama Court of Criminal Appeals.

He

raised a single argument: that the officers’ conduct in
approaching
nothing

him

more

Terry stop.”

while

than

an

he

was

attempt

Id. at 6.

walking
to

at

conduct

night
an

“was

illegal

The appellate court rejected

his argument and affirmed the delinquency adjudication.

III. SECTION 1983 CLAIMS
Wilkerson brings § 1983 claims against each officer
for unlawful arrest and excessive force.
respond

with

two

arguments:

first,

that

The officers
Wilkerson’s

delinquency adjudication precludes his federal claims;
and,

second,

that

qualified immunity.

the

officers

are

entitled

to

The court will determine whether

the delinquency adjudication has any preclusive effect
before taking up the officers’ immunity defense.

7

a. Preclusion
The officers submit that the doctrine of collateral
estoppel precludes Wilkerson from relitigating whether
they had grounds to arrest him and whether he resisted
their attempts to handcuff him.

Alternatively, they

contend that Heck v. Humphrey, 512 U.S. 477 (1994),
bars

Wilkerson’s

§ 1983

claims

because

they

rest

on

factual and legal arguments that are inconsistent with
a

state-court

collateral

judgment.

The

estoppel

wrongful-arrest

claims

court

concludes

precludes
but

that

neither

that

Wilkerson’s
collateral

estoppel nor the Heck doctrine bars the excessive-force
claims.

1. Collateral Estoppel
Under

the

doctrine

of

collateral

estoppel

(otherwise known as issue preclusion), “once a court
decides

an

issue

of

fact

or

law

necessary

to

its

judgment, that decision precludes relitigation of the
8

same issue on a different cause of action between the
same parties.”

Kremer v. Chem. Constr. Corp., 456 U.S.

461,

(1982).

467

n.6

“Congress

has

specifically

required all federal courts to give preclusive effect
to

state-court

judgments

whenever

the

courts

of

the

State from which the judgments emerged would do so.”
Allen v. McCurry, 449 U.S. 90, 96 (1980).
application

of

collateral

In Alabama,

estoppel

to

preclude

relitigation of an issue requires “(1) [t]hat an issue
in a prior action was identical to the issue litigated
in the present action; (2) that the issue was actually
litigated in the prior action; (3) that resolution of
the issue was necessary to the prior judgment; and (4)
that the same parties are involved in the two actions.”
Unum Life Ins. Co. of Am. v. Wright, 897 So.2d 1059,
1082-83

(Ala.

2004)

(quoting

Smith

v.

Union

Trust Co., 653 So.2d 933, 934 (Ala. 1995)).

Bank

&

The party

raising collateral estoppel bears the burden to prove
each

element.

See

Lee

L.
9

Saad

Constr.

Co.

v.

DPF

Architects, P.C., 851 So.2d 507, 516 (Ala. 2002).
The

officers

submit

that

Wilkerson’s

delinquency

adjudication estops him from bringing wrongful-arrest
claims

and

making

any

factual

representations

in

service of his excessive-force claims that contradict
the juvenile court’s findings.

The court agrees that

Wilkerson may not raise wrongful-arrest claims because
he

litigated

already

in

the

alleged

juvenile

wrongfulness

court.

of

the

Additionally,

arrest

for

the

purposes of resolving the officers’ motion to dismiss
the excessive-force claims, the court will assume that
Wilkerson is estopped from contending that he did not
resist their attempts to handcuff him.
As to the wrongful-arrest claims, the first three
elements under Alabama law for collateral estoppel to
apply

are

readily

satisfied:

the

juvenile

court

was

confronted with the same question about the lawfulness
of Wilkerson’s arrest that he seeks to litigate here,
Wilkerson

actually

litigated
10

that

question,

and

the

juvenile court’s resolution of the issue was necessary
to its judgment.

The juvenile court concluded that

Wilkerson resisted arrest in violation of Alabama Code
§ 13A-10-41,
“intentionally

under

which

prevent[]

or

an

individual

attempt[]

to

may

prevent

peace officer from [e]ffecting a lawful arrest.”
Code

§ 13A-10-41(a)

(emphasis

added).

not

Because

a

Ala.
the

lawfulness of an arrest is an element of the offense,
the juvenile court necessarily decided that Wilkerson’s
arrest was lawful in adjudicating him delinquent.
The officers have not submitted any records from
the proceedings in juvenile court to corroborate that
Wilkerson actually litigated the issue, but that is no
barrier for collateral estoppel to apply.

Wilkerson’s

state-court appeal focused exclusively on whether his
arrest was lawful; he argued that the arrest violated
the Fourth Amendment because it was borne out of “an
attempt to conduct an illegal Terry stop.”
1

(Doc. 77-1)

at

6.

Wilkerson
11

thus

Defs.’ Ex.

preserved

his

constitutional
actually
contention

challenge

litigated
in

the

and,

it

on

present

at

the

appeal.

lawsuit

very

least,

Wilkerson’s

that

the

officers

lacked arguable probable cause to apprehend him is not
materially

different

from

his

argument

on

appeal,

which, at its core, likewise centered on whether the
officers’ conduct violated his Fourth Amendment rights.
The final element under Alabama law for collateral
estoppel to apply (the involvement of the same parties)
is also satisfied.
were

not

Although the officers in this case

parties

to

Wilkerson’s

delinquency

proceedings, Alabama law treats two litigants as the
‘same

party’

“if

the

party

raising

the

defense

of

collateral estoppel ... is in privity with a party to
the prior action.”

Dairyland Ins. Co. v. Jackson, 566

So. 2d 723, 726 (Ala. 1990).

At least in the context

of enforcing criminal statutes, Alabama law considers
police officers to be privities of the State because of
their “identity of interest.”
12

Hunter v. Leeds, 941

F.3d 1265, 1274-75 (11th Cir. 2019).

For example, in

Hunter, the defendants were police officers sued for
their

conduct

during

the

“same

pursuit

and

apprehension” on which the plaintiff’s conviction for
menacing was based.
here,

and

Wilkerson

otherwise.1
therefore

Id. at 1275.

The

offers

doctrine

precludes

him

no

The same is true
reason

of

to

collateral

from

suggest
estoppel

relitigating

the

lawfulness of his arrest, and so the court will dismiss
his wrongful-arrest claims.
Wilkerson’s
matter.
to

bar

excessive-force

are

another

The officers do not invoke collateral estoppel
Wilkerson

claims altogether.
estopped

claims

from

from

asserting

the

excessive-force

Instead, they submit that he is

supporting

his

claims

with

factual

1. The most apparent difference between the present
action and Hunter is that the officers here seek to
give preclusive effect to a juvenile adjudication,
whereas Hunter involved an adult criminal conviction.
Wilkerson, however, does not press that distinction,
and so the court need not consider it.
13

contentions

that

the

juvenile

court

necessarily

rejected in adjudicating him delinquent: namely, that
he did not resist the officers’ attempts to place him
in handcuffs.
Collateral estoppel based on a prior state-court
proceeding “may limit what facts a § 1983 plaintiff can
dispute

on

[a]

defendant’s

qualified immunity.”

motion ...

based

on

M.D. ex rel. Daniels v. Smith,

504 F. Supp. 2d 1238, 1252 (M.D. Ala. 2007) (Thompson,
J.).

However, because the officers have submitted only

a memorandum issued by the appellate court, “the record
contains no relevant findings of fact entered by the
juvenile court.”
The

Id.

appellate

court’s

summary

of

the

evidence

presented in the juvenile court suggests strongly that
Wilkerson’s
arrest

was

delinquency
premised

on

adjudication
testimony

that

for
he

prevent the officers from handcuffing him.

resisting
tried

to

The court

will assume, without deciding, that this is so and that
14

Wilkerson
contrary

is

collaterally

factual

estopped

assertions.

As

from
the

making

discussion

any
of

qualified immunity below will illustrate, even if the
court disregards Wilkerson’s contention that he never
resisted

arrested,

his

excessive-force

claims

would

still survive the officers’ motion to dismiss.

2. The Heck Doctrine
The defendants next argue that the United States
Supreme Court’s decision in Heck v. Humphrey, 512 U.S.
477 (1994), gives Wilkerson’s delinquency adjudication
preclusive effect.
that,

“to

recover

unlawfulness

would

invalid,

§ 1983

a

In Heck, the Supreme Court held
damages
render

a

plaintiff

for ...

actions

conviction
must

or

prove

sentence
that

conviction or sentence has been [invalidated].”
U.S. at 486-87 (footnote omitted).
claim

for

damages

“demonstrat[ing]

the

whose

15

the
512

In other words, a

success

invalidity

whose

of

any

depends

on

outstanding

criminal

judgment

against

cognizable under § 1983.”
The
First,

officers
they

contend

wrongful-arrest
unless

the

raise

the

that

arguments
Heck

because

delinquency

is

“not

Id. at 487.
two

claims

plaintiff”

under

bars

they

adjudication

Heck.

Wilkerson’s

cannot
for

succeed
resisting

arrest, which required the juvenile court to find that
his

arrest

officers

was

insist

lawful,
that

is

Heck

invalid.
prevents

Second,
the

court

the
from

hearing any of Wilkerson’s § 1983 claims because the
complaint

contains

incompatible

with

factual
the

contentions

juvenile

court’s

that

are

findings.

Because the court has concluded already that Wilkerson
is collaterally estopped from bringing wrongful-arrest
claims, it need not consider the first argument at all,
and it need only consider the second argument as it
pertains to the excessive-force claims.
As a threshold matter, this court has questioned
the applicability of Heck to juvenile adjudications.
16

See M.D., 504 F. Supp. 2d at 1252-53.2

The Supreme

Court in Heck spoke of lawsuits that challenged “the
validity of an underlying criminal conviction,” but, in
Alabama, “juvenile adjudications and youthful offender
determinations
added).

are

Alabama

adjudication

“shall

not

convictions.”

law
not

provides
be

Id.

(emphasis

a

juvenile

that

considered

to

be

a

conviction or impose any civil disabilities ordinarily
resulting from a conviction of a crime.”

Ala. Code

§ 12-15-220(a).
Even if the Heck doctrine could give delinquency
adjudications

preclusive

effect,

Wilkerson’s excessive-force claims.
drew

a

sharp

distinction

between

it

would

not

bar

The Heck opinion
§ 1983

claims

that

2. Since this court issued its opinion in M.D., at
least one district court in the Eleventh Circuit has
applied Heck to juvenile delinquency adjudications,
though that court was not interpreting Alabama law.
See Henry v. Mt. Dora, No. 5:13-cv-528-Oc-30PRL, 2014
WL 5823229, at *4-5 (M.D. Fla. Nov. 10, 2014) (Moody,
J.), aff’d, 688 F. App’x 842 (11th Cir. 2017) (mem.).
17

“would

necessarily

imply

the

invalidity

of

[a]

conviction or sentence,” in which case the state-court
judgment would preclude a suit for damages, and those
that would not.

512 U.S. at 487 (emphasis added).

Emphasizing the importance of this “logical necessity”
to

Heck’s

holding,

the

Eleventh

Circuit

Court

of

Appeals has held that “the use of excessive force may
not necessarily make [a plaintiff’s] arrest unlawful”
and

cited

favorably

to

reaching the same result.

out-of-circuit

decisions

Dyer v. Lee, 488 F.3d 876,

879-81 (11th Cir. 2007).
The

officers

excessive-force

argue

claims

that

Heck

nonetheless

‘inconsistent-factual-allegations
Heck

may

“makes

preclude
specific

inconsistent

with

a

§ 1983

factual
the

bars

Wilkerson’s

pursuant

rule,’

action

if

under
the

allegations
facts

upon

to

n.9.

The

officers
18

submit

that
which

that

which

complaint

plaintiff’s] criminal convictions were based.”
883

the

are
[the
Id. at

Wilkerson

“voluntarily

steer[ed]

the

[c]omplaint

into

Heck

territory” by “predicat[ing] [the] use-of-force claims
on

the

arrest

factual
at

assertion

all,”

which

delinquency adjudication.

that
is

[he]

did

inconsistent

not

resist

with

his

Br. in Support (Doc. 77) at

28.
“To the extent [the Eleventh Circuit] adopted the
inconsistent-factual-allegation
emphasized

that

the

rule

[rule],”

applies

only

in

it
a

has

“narrow

category of cases,” namely, “where the allegation in
the

§ 1983

complaint

is

a

specific

one

that

both

necessarily implies the earlier decision is invalid and
is necessary to the success of the § 1983 suit itself.”
Dixon v. Hodges, 887 F.3d 1235, 1239 (11th Cir. 2018)
(per curiam) (emphasis in original).

“When a plaintiff

alleges a fact that, if true, would conflict with the
earlier punishment, but that fact is not necessary to
the success of his § 1983 suit, the Heck bar does not
apply.”

Id. at 1239.
19

In

Dixon,

the

Eleventh

Circuit

reversed

an

application of Heck to bar a prisoner’s excessive-force
claim where the complaint alleged that the plaintiff
did not lunge at the defendant prior to the use of
force,

contrary

punishment.

See

to

the

id.

at

plaintiff’s
1238-40.

disciplinary

Because

it

was

“logically possible both that [the plaintiff] lunged at
[the defendant] and that [the defendant] used excessive
force,” Heck did not control.

Id. at 1240.

Similarly,

in Harrigan v. Metro Dade Police Department Station #4,
977 F.3d 1185 (11th Cir. 2020), the Eleventh Circuit
reversed

an

application

of

Heck

to

bar

an

excessive-force claim where the complaint alleged that
the defendant shot the plaintiff unprovoked and that
the plaintiff swerved his car only to protect his life,
despite

the

plaintiff’s

assault

on

elude.

See 977 F.3d at 1193-94, 1197.

a

convictions

law-enforcement

officer

for
and

aggravated
fleeing

to

And, in Cendan

v. Trujillo, 779 F. App’x 688 (11th Cir. 2019) (per
20

curiam),

Heck

did

not

bar

an

excessive-force

claim

where the complaint denied that the plaintiff had ever
resisted arrest, despite his convictions for resisting
arrest with violence and other offenses.
that

the

proving

plaintiff

that

[the

“could

prevail

defendants]

It was enough

under

used

§ 1983

gratuitous

by

force

against him after he had stopped resisting and been
subdued.”

779 F. App’x at 690.

As in these cases, Wilkerson’s complaint contains
factual

contentions

delinquency
contentions
lawsuit.

that

are

adjudication,
is
The

not

inconsistent

but

necessary

excessive-force

the
to

truth

the

claims

with
of

success
can

the

those
of

prevail

his
if

Wilkerson can show that the officers continued to beat
him after he stopped resisting or if the amount of
force deployed was grossly unnecessary to subdue him.
Heck

therefore

does

not

preclude

claims for excessive force.

21

Wilkerson’s

§ 1983

b. Qualified Immunity
Having
against

determined

each

officer

that

Wilkerson’s

for

unlawful

§ 1983

arrest

claim

must

be

dismissed, the court turns to whether the officers are
entitled

to

qualified

immunity

from

Wilkerson’s

remaining § 1983 claims for excessive force.
“The

doctrine

of

qualified

immunity

protects

government officials ‘from liability for civil damages
insofar

as

their

conduct

does

not

violate

clearly

established statutory or constitutional rights of which
a reasonable person would have known.’”

Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald,

457

U.S.

800,

818

(1982)).

“Qualified

immunity balances two important interests--the need to
hold public officials accountable when they exercise
power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they
perform their duties reasonably.”

Id.

“An officer asserting a qualified-immunity defense
22

bears the initial burden of showing that he was acting
within his discretionary authority.”

Patel v. Lanier

Cty., 969 F.3d 1173, 1181 (11th Cir. 2020) (internal
quotation marks omitted) (quoting Piazza v. Jefferson
Cty., 923 F.3d 947, 951 (11th Cir. 2019)).
parties
their

that

all

discretionary

arrest.
show

agree

the

constitutional

acted.”

authority

at

were

acting

the

time

within
of

the

Therefore, the burden shifts to Wilkerson to

“(1)

rights

officers

Here, the

were

or

defendants
statutory

clearly

violated
rights”

established

at

his

and

federal

“(2)

the

time

those
they

Reese v. Herbert, 527 F.3d 1253, 1272 (11th

Cir. 2008).

1. Constitutional Violation
Where,

as

here,

“a

plaintiff

alleges

excessive

force during an investigation or arrest, the federal
right at issue is the Fourth Amendment right against
unreasonable seizures.”

Tolan v. Cotton, 572 U.S. 650,
23

656

(2014)

(per

curiam).

Accordingly,

“whether

a

constitutional violation occurred is governed by the
Fourth

Amendment’s

standard.”

‘objective

reasonableness’

Hadley v. Gutierrez, 526 F.3d 1324, 1329

(11th Cir. 2008) (quoting Brosseau v. Haugen, 543 U.S.
194, 197 (2004) (per curiam)).

“The ‘reasonableness’

of a particular use of force must be judged from the
perspective

of

rather

than

Graham

v.

a

reasonable

with

Connor,

the

20/20

490

U.S.

officer

on

the

vision

of

hindsight.”

386,

396

scene,

(1989).

The

factors that inform this reasonableness inquiry include
“(1)

the

severity

of

the

crime;

(2)

whether

the

individual ‘poses an immediate threat to the safety of
the

officers

or

others;’

(3)

whether

the

individual

actively resists or tries to evade arrest by flight;
(4) the need for force to be applied; (5) the amount of
force applied in light of the nature of the need; and
(6) the severity of the injury.”

Hinson v. Bias, 927

F.3d 1103, 1117 (11th Cir. 2019) (internal citations
24

omitted) (quoting Crenshaw v. Lister, 556 F.3d 1283,
1290 (11th Cir. 2009) (per curiam)).
“[E]ach

defendant

is

entitled

to

an

independent

qualified-immunity analysis as it relates to his or her
actions and omissions.”

Alcocer v. Mills, 906 F.3d

944, 951 (11th Cir. 2018).

But the Eleventh Circuit

has rejected the argument “that the force administered
by each defendant in [a] collective beating must be
analyzed

separately

defendants’

blows,

to
if

determine

any,

used

which
excessive

of

the

force.”

Skrtich v. Thornton, 280 F.3d 1295, 1302 (11th Cir.
2002),

overruled

on

other

grounds

by

Pearson

v.

Callahan, 555 U.S. 223 (2009); see also Velazquez v.
Hialeah,

484

F.3d

1340,

1342

(11th

Cir.

2007)

(per

curiam) (rejecting the argument that summary judgment
for the defendants was appropriate where the plaintiff
could not identify which of several officers allegedly
beat him).

At this stage of the proceedings, the court

accepts as true the complaint’s allegations that each
25

of the officers participated in the arrest and that one
or more of them punched and kicked Wilkerson.

While

additional development of the facts may later warrant a
defendant-by-defendant analysis, such disaggregation is
neither required nor realistic at this time.
Wilkerson represents that the officers found him
walking alone late at night, chased him for several
blocks, and arrested him.

In his telling, after the

arrest, the officers threw him to the ground and began
physically assaulting him, and the blows continued even
after his “hands were handcuffed and/or pinned to the
ground.”

Compl.

(Doc. 48)

¶ 26.

Wilkerson

also

submits that he put up no resistance during the arrest,
but,

as

stated,

contention.3

the

court

will

disregard

that

However, Wilkerson may still argue that

3. The court will also disregard all allegations in
the complaint suggesting that, on the evening of his
arrest, Wilkerson “neither said anything, nor had done
anything, to be considered harmful or a threat to any
of the Defendants or to others.”
Compl. (Doc. 48)
(continued...)
26

the

officers

continued

beating

him

even

after

he

stopped resisting.4
These factual allegations are sufficient to state a
claim
against

that
him.

the

officers
Because

deployed

Wilkerson

excessive
alleges

that

force
the

¶ 22; see also id. ¶ 18; id. ¶ 25.
Wilkerson’s
representations that he did not appear threatening are
not entitled to a presumption of truth because they are
conclusory.
Nor
will
the
court
consider
the
declarations of Wilkerson and Williams’s counsel; to
the
extent
the
declarations
do
more
than
note
uncontroverted facts and repeat legal arguments made in
the filings, they appear to be conclusory and lack a
foundation in personal knowledge.
4. The officers insist that the complaint’s
allegations about Wilkerson being punched and kicked
are “conclusory as a matter of law.”
Br. in Support
(Doc. 77) at 53. They point to an unreported Eleventh
Circuit
opinion
describing
as
conclusory
the
plaintiff’s sworn statement that he had been “stomped
and kicked numerous times.” Teal v. Campbell, 603 Fed.
App’x
820,
823
(11th
Cir.
2015)
(per
curiam).
Unreported decisions are not binding on this court.
Moreover, Teal involved a motion for summary judgment,
and the Eleventh Circuit decided not to credit the
plaintiff’s allegation because it lacked any additional
supporting evidence in the record.
Teal does not
purport to address what allegations are entitled to a
presumption of truth at the motion-to-dismiss stage,
when discovery has yet to begin.
27

officers continued assaulting him even after arresting
him and placing handcuffs on both his hands, when any
resistance on his part would have been futile, almost
all the factors that help courts determine whether a
use

of

force

was

reasonable

militate

finding a constitutional violation.
not

have

presented

officers’

safety

an

if

of

favor

of

Wilkerson could

“immediate

both

in

his

threat”

to

hands

were

the
in

handcuffs; the complaint contains no indication that he
was actively resisting the officers’ directions by that
point;

the

“need

for

force”

was

minimal

after

the

officers had restrained him completely; “the amount of
force

applied”

from

the

punches

and

kicks

was

disproportionate “in light of the nature of the need”;
and

the

injuries

were

“sever[e],”

bloodied and his bones broken.
1117.

leaving

Wilkerson

Hinson, 927 F.3d at

The officers, in seeing Wilkerson walking alone

in an area where they believed vehicle break-ins were
afoot, may have had reason to suspect him of a crime,
28

but that alone cannot justify the alleged amount of
force

deployed

once

he

completely restrained.

was

already

arrested

and

Under these circumstances, the

officers were “not entitled to use any force at that
time,” and their repeated strikes were “gratuitous.”
Hadley, 526 F.3d at 1330.
The officers do not dispute any of this.
they

contend

that

the

court

should

Instead,

disregard

the

complaint’s allegation that the assault continued even
after

the

officers

Wilkerson.

had

handcuffed

and

restrained

Although they acknowledge that the court

must take the allegations in the complaint as true,
they ask the court to consider footage from two of the
arresting officers’ body-worn cameras to “override the
[c]omplaint’s conclusory allegations.”

Br. in Support

(Doc. 77)

the

at

14.

They

argue

that

court

may

consider the footage without converting their motion to
dismiss into a motion for summary judgment.
“A

court

may

consider
29

an

exhibit

attached

to

a

pleading, or a motion to dismiss, without converting
the motion into one for summary judgment, where the
exhibit is central to the plaintiff’s claim, and its
authenticity is unchallenged.”
805

F.

curiam).
Eleventh

App’x

817,

819

n.2

Cantrell v. McClure,
(11th

Cir.

2020)

(per

In at least two unreported decisions, the
Circuit

has

invoked

this

rule

to

permit

consideration of video evidence attached to a motion to
dismiss.

See id. at 819; McDowell v. Gonzalez, 820 F.

App’x 989, 992 (11th Cir. 2020) (per curiam).
Notably, however, none of the authorities cited by
the officers holds that the court must accept their
video evidence at the motion-to-dismiss stage.

On the

contrary, “federal courts have complete discretion to
determine whether or not to accept the submission of
any material beyond the pleadings that is offered in
conjunction with a Rule 12(b)(6) motion ... or simply
not consider it.”

5C Fed. Prac. & Proc. Civ. § 1366

(3d ed. (June 2024)) (emphasis added).
30

Good reasons counsel against consideration of the
video evidence at this time.

The officers state that

they have “attached two body-worn camera recordings to
their motion to dismiss.”
13.

Br. in Support (Doc. 77) at

But neither party disputes that there were more

than two officers at the scene, which means that there
may be additional footage with relevance to the present
action.
benefit

Without affording Wilkerson and Williams the
of

discovery,

the

court

cannot

discount

the

possibility that the officers selected specific footage
that

would

light.

put

their

conduct

in

the

most

favorable

The court will therefore defer consideration of

the video evidence until summary judgment.
In

sum,

the

complaint’s

contention

that

the

officers physically assaulted Wilkerson after he was on
the ground with both of his hands handcuffed states a
claim for excessive force.

The officers’ submission of

video evidence does not compel a different result.

The

court will turn now to whether the right to be free
31

from such force was clearly established at the time of
Wilkerson’s arrest.

2. Clearly Established Law
There
Eleventh

are

Circuit

established.
materially
relevant

three
to

ways
show

First,

similar

conduct

a

that

a

“the

case

by

for

the

plaintiff
right

plaintiff

decided
Supreme

at

was

can
the

Court,

in

clearly

point
time
the

Williams

v.

Birmingham

Bd.

of

Educ.,

1248, 1259 (11th Cir. 2018) (per curiam).

to

of

a

the

Eleventh

Circuit, or the relevant state supreme court.”
rel.

the

J W ex

904

F.3d

The case

“need not be directly on point,” but it must “have
placed the statutory or constitutional question beyond
debate.”
(2017)

Id. (quoting White v. Pauly, 580 U.S. 73, 79

(per

curiam)).

“Second,

the

plaintiff

can

identify a broader, clearly established principle that
should govern the novel facts of the situation.”
904

F.3d

at

1259.

Or,

third,
32

the

plaintiff

J W,
can

demonstrate
violated

that

the

alleged

the

Constitution

unnecessary.”

Id. at 1260.

Long

before

conduct

that

Wilkerson’s

prior

arrest,

“so

obviously

case

the

law

is

Eleventh

Circuit had clearly established “that gratuitous use of
force when a criminal suspect is not resisting arrest
constitutes excessive force.”

Hadley v. Gutierrez, 526

F.3d 1324, 1330 (11th Cir. 2008).
true

even

if

someone

resists

Crucially, this is

arrest

at

first;

the

Fourth Amendment still forbids an officer from beating
an initially non-compliant suspect after the individual
is handcuffed and no longer resisting.

For example, in

Hadley, the Eleventh Circuit denied summary judgment to
a police officer who had ”punched [the plaintiff] in
the stomach while he was handcuffed and not struggling
or

resisting.”

Id.

It

did

not

matter

that

the

plaintiff “resisted [arrest] at some point during the
night.”
punch

Id. at 1331.

occurred

when

The critical point was that the
the

plaintiff
33

was

not

resisting

arrest.
Similarly, in Skrtich v. Thornton, 280 F.3d 1295
(11th Cir. 2002), overruled on other grounds by Pearson
v. Callahan, 555 U.S. 223 (2009), correctional officers
deployed an electronic shield after an inmate refused
to submit to handcuffing.
“incapacitated”

the

After the shock allegedly

plaintiff,

punched, and beat him.

the

officers

280 F.3d at 1302.

kicked,
Based on

this beating, the Eleventh Circuit affirmed the denial
of summary judgment to the officers, as it was “clearly
established
gratuitous

that
force

already subdued.”

government

officials

against

prisoner

a

may
who

not

use

has

been

Id. at 1303.

Even before these cases were decided, in Smith v.
Maddox, 127 F.3d 1416 (11th Cir. 1997) (per curiam),
the

Eleventh

Circuit

affirmed

the

denial

of

summary

judgment to an officer who broke the plaintiff’s arm
during

an

baseball

arrest.

bat

in

a

The

plaintiff

threatening
34

had

posture”

“raised
when

[a]

first

approached by the officer.

127 F.3d at 1418.

After

the officer drew his gun, the plaintiff dropped the bat
and ran away.

Ultimately, the plaintiff submitted to

the arrest and got on the ground.

The officer broke

the plaintiff’s arm “with a grunt and a blow” when he
was

on

top

of

the

handcuffing him.

plaintiff

Id.

and

in

the

process

of

The Eleventh Circuit concluded

that the use of force “was obviously unnecessary to
restrain even a previously fractious arrestee.”

Id. at

1420.
Against

this

backdrop,

the

officers

here

cannot

contend that the then-existing precedent left any doubt
about the legality of using bone-breaking force against
an

initially

non-compliant

suspect

who

restrained and handcuffed.

Nor do they.

instead

in

point

emphasizing
deploy

force

restrained.

the

to

cases

leeway

against

that

suspects

the
law

has

The officers

Eleventh
enforcement

before

been

they

Circuit
has

are

to

fully

See Br. in Support (Doc. 77) at 50-52; id.
35

at 65 (seeking to highlight the “similarity” of cases
like Hinson, 927 F.3d 1103, 1120-21, and Mobley v. Palm
Beach County Sheriff Department, 783 F.3d 1347, 1356
(11th Cir. 2015) (per curiam)).

They insist that these

cases are fatal to Wilkerson’s excessive-force claims
if

the

court

disregards

considers

Wilkerson’s

the

body-camera

contention

continued after he was handcuffed.

that

footage
the

and

beating

But, as stated, the

court has not accepted the video evidence and must take
Wilkerson’s allegation about the beating’s timing as
true.
will

Reading the complaint in that light, the court
deny

the

officers’

motion

to

dismiss

the

excessive-force claims on qualified-immunity grounds.

IV. STATE-LAW CLAIMS
Finally, the court turns to the two counts of the
complaint

asserted

under

Alabama

law:

Wilkerson’s

claims for assault and battery and Williams’s claims
for parent’s damages under Alabama Code § 6-5-390.
36

Because

the

court

concludes

that

the

complaint

plausibly states § 1983 claims for excessive force, the
court rejects the officers’ argument that the complaint
“depicts

reasonable

constituted

assault

force”
and

that

could

battery.

Br.

not
in

have

Support

(Doc. 77) at 63-64.
Apart

from

that

state-agent

immunity

assault

battery.

and

argument,
from

the

officers

Wilkerson’s

Alabama

law

invoke

claims

affords

for

“[e]very

peace officer ... 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

§ 6-5-338(a).
that

this

enforcement

duties.”

Ala.

Code

The Alabama Supreme Court has explained

immunity

protects

a

state

agent

from

liability for “exercising judgment in the enforcement
of the criminal laws of the State, including, but not
limited

to,

law-enforcement

attempting to arrest persons.”
37

officers’

arresting

or

Ex parte Cranman, 792

So.2d

392,

405

(Ala.

2000)

(plurality

opinion).

However, a state agent shall not be immune “when the
Constitution or laws of the United States ... require
otherwise”

or

“when

the

State

agent

acts

willfully,

maliciously, fraudulently, in bad faith, beyond his or
her authority, or under a mistaken interpretation of
the law.”

Id.; see also Downing v. Dothan, 59 So.3d

16, 19 (Ala. 2010) (noting that Cranman articulated the
standard governing claims of state-agent immunity).
Wilkerson does not contest that the officers were,
at all relevant times, peace officers acting within the
scope of their responsibilities.
the

paragraphs

in

the

However, he points to

complaint

stating

officers acted willfully and in bad faith.
mere

allegation

of

bad-faith

conduct

that

the

While the

cannot

prevent

dismissal, the court is satisfied that the complaint’s
factual submissions, read in the light most favorable
to Wilkerson, are sufficient to overcome the officers’
immunity arguments.

The Eleventh Circuit has observed
38

repeatedly

that

“[t]he

Alabama

Supreme

Court

has

largely equated qualified immunity with [state-agent]
immunity.”
Webster,

145

curiam).5
will

Hunter, 941 F.3d at 1284; see also Sheth v.

not

F.3d

1231,

1240

(11th

Cir.

1998)

(per

For largely the same reasons that the court
dismiss

Wilkerson’s

§ 1983

claims

for

excessive force, the court finds that dismissal of his
claims for assault and battery is inappropriate at this
time.
Additionally, because the officers’ only argument
to dismiss Williams’s claims for parent’s damages is
that

they

are

derivative

of

Wilkerson’s

assault-and-battery claims, Williams’s claims will also
survive.
5. The Eleventh Circuit in Hunter referred to
‘discretionary-function
immunity,’
not
state-agent
immunity, but the two terms refer to the same immunity
defense.
See 1 Ala. Pers. Inj. & Torts § 3:26 (2023
ed.) (“What was for many years referred to in the
decisions, state and federal, as discretionary function
immunity is now called state-agent immunity in the
Alabama appellate courts.”).
39

V. CONCLUSION
For the foregoing reasons, the court will grant the
officers’ motion to dismiss Wilkerson’s § 1983 claims
for

unlawful

arrest

but

will

respect to the remaining claims.

deny

the

motion

with

The court emphasizes

that it has relied on only allegations in the amended
complaint.

Whether

the

evidence

actually

supports

those allegations is not before the court at this time.
Also, because the case will proceed to discovery on
those

claims,

the

court

will

deny

Wilkerson

and

Williams’s motion for expedited discovery as moot.

* * *
Accordingly, it is ORDERED that:
(1) Defendants Brandon Hicks, Barry Rodgers, Jason
Barron, Brandon Kirkland, and Michael Watts’s motion to
dismiss (Doc. 76) is granted as to plaintiff Ulysses
Wilkerson’s § 1983 claims for unlawful arrest.
40

(2)

Defendants

Hicks,

Rodgers,

Barron,

Kirkland,

and Watts’s motion to dismiss (Doc. 76) is denied with
respect

to

plaintiff

Wilkerson’s

§ 1983

claims

for

unlawful use of force, plaintiff Wilkerson’s claims for
assault and battery, and plaintiff Angela Williams’s
claims

for

parent’s

damages

under

Alabama

Code

§ 6-5-390.
(3) Plaintiffs Wilkerson and Williams’s motions for
permission to conduct expedited and limited discovery
(Doc. 71 and Doc. 87) are denied as moot.
DONE, this the 28th day of August, 2024.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

41