Dupree v. City of Phenix City, Alabama et al

Filing 86

ORDER directing that: (1) The 84 Recommendation is REJECTED and Mr. Dupree's Objections are SUSTAINED with regard to the portion of the Recommendation setting this action for a non-jury trial; (2) To the extent that the Recommendation recommen ds granting summary judgment on the state-law claims, the Recommendation is REJECTED and Mr. Dupree's objections are SUSTAINED; (3) The remainder of the Recommendation is ADOPTED, and Mr. Dupree's remaining objections are OVERRULED; (4) Def endants' 72 Motion for Summary Judgment is GRANTED on the § 1983 claim against Defendant Phenix City, Alabama, and DENIED on the remainder of Mr. Dupree's claims; a separate order will be issued setting this case for a jury trial on Plaintiff Danny Lawrence Dupree's Fourth Amendment Claim against Defendant S. Lashley in her individual capacity and the state-law claims against Defendants City of Phenix City and S. Lashley. Signed by Chief Judge William Keith Watkins on 9/25/12. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
DANNY LAWRENCE DUPREE,

)
)
Plaintiff,
)
)
v.
)
)
CITY OF PHENIX CITY, ALABAMA, )
et al.,
)
)
Defendants.
)

CASE NO. 3:10-CV-970-WKW [WO]

ORDER
On April 30, 2012, Defendants Phenix City and Sherry Lashley moved for
summary judgment. (Doc. # 72.) Plaintiff responded with four separate filings (Docs.
# 79, 80, 81, 82), which the court will consider together as Plaintiff’s opposition to
summary judgment. On July 2, 2012, the Magistrate Judge filed a Recommendation
with regard to the Motion for Summary Judgment. (Doc. # 84.) This matter is before
the court on Mr. Dupree’s objection to that Recommendation. (Doc. # 85.) The court
reviews de novo the portions of the Recommendation that deal with dispositive
matters and to which objection is made. 28 U.S.C. § 636(b)(1). Portions of the
Recommendation dealing with nondispositive matters, however, must be modified or
set aside only if they are “clearly erroneous or . . . contrary to law.” Fed. R. Civ. P.

72(a). For the reasons that follow, the objection is due to be sustained in part and
overruled in part.
A.

Mr. Dupree is entitled to a trial by jury.
First, the court considers Mr. Dupree’s objection to the portion of the

Recommendation setting this case for a non-jury trial. As Mr. Dupree correctly points
out, all three versions of the complaint have included a jury demand, either expressly
or by reference to an earlier pleading. (See Doc. # 1, at 2; Doc. # 23, at 11; Doc. # 31,
at 9.) Each of those demands was sufficient under Rule 38(b) of the Federal Rules of
Civil Procedure to preserve Mr. Dupree’s right to a trial by jury, so his first objection
is due to be sustained.
B.

Mr. Dupree’s evidentiary objections are due to be overruled.
Second, Mr. Dupree objects to the Magistrate Judge’s Recommendation that the

court deny Mr. Dupree’s motions to strike (Docs. # 80, 81) and Motion for Order that
Facts and [Genuineness] of Documents be Taken as Established (Doc. # 79). The
Recommendation indicates that the Magistrate Judge made a determination on the
admissibility of the evidence underlying these motions and that any evidence found
to be inadmissible was not considered in resolving the motion for summary judgment.
Although Mr. Dupree expresses skepticism as to the court’s ability “to determine the
truth from falsehoods, lies or other allegations which cannot be supported,” Rule 104
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of the Federal Rules of Evidence requires the court to make determinations on
admissibility of evidence – which the Magistrate Judge properly did in his
Recommendation.
Only evidence admissible under Rule 56(c) of the Federal Rules of Civil
Procedure needs to be considered in order to dispose of the motion for summary
judgment. Further, the Recommendation does not rely on any inadmissible evidence
to reach its conclusions. Accordingly, Mr. Dupree’s objection to the disposition of
the evidentiary motions (Docs. # 79, 80, 81) is due to be overruled because the orders
in the Recommendation dealing with them are neither clearly erroneous nor contrary
to law. See Fed. R. Civ. P. 72(a).
C.

Mr. Dupree’s state-law claims should have survived summary judgment.
Third, Mr. Dupree objects to the Recommendation to the extent that “no

provision is made for [his] state tort claims against either defendant . . . .” (Pl.’s Obj.
3 (Doc. # 85).) Although the exact nature of Mr. Dupree’s state-law claims is not well
developed, each of the three versions of the complaint references violations of the
Alabama Constitution and state law.1 (See, e.g., Doc. # 23, at 6-7; Doc. # 31, at 2.)
1

The general rule is that an amended complaint supersedes an original complaint.
See Fritz v. Standard Sec. Life Ins. Co., 676 F.2d 1356, 1358 (11th Cir. 1982). There is an
exception to that rule where the amended complaint incorporates by reference the original
complaint. See Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (5th Cir. 1985). Here,
each of Mr. Dupree’s amendments to the complaint incorporate, either in whole or in part,
the preceding pleading.
3

Defendants did not address any state-law claims against the City in their brief.
Instead, they addressed only the City’s liability under 42 U.S.C. § 1983. As a result,
a grant of total summary judgment on Mr. Dupree’s claims against the City –
including his unchallenged state-law claims – is inappropriate.
Defendants’ brief does, however, address state-law claims against Officer
Lashley. But resolution of those claims involves the same disputed facts cited in the
Recommendation that preclude summary judgment on the Fourth Amendment claims
against Officer Lashley in her personal capacity. (Recommendation 11–12 (Doc.
# 84).) Accordingly, for the same reasons the Recommendation found summary
judgment inappropriate on the Fourth Amendment claims against Officer Lashley in
her individual capacity, the state-law claims against Officer Lashley should survive
summary judgment as well.
Therefore, Mr. Dupree’s objection to the portion of the Recommendation
granting summary judgment on Mr. Dupree’s state-law claims against the City and
Officer Lashley is due to be sustained.
D.

Summary judgment is due on the § 1983 claim against the city.
Finally, Mr. Dupree objects to the Magistrate Judge’s recommendation that

summary judgment be granted on the § 1983 claim against the City. Yet as the
Magistrate Judge points out, Mr. Dupree has not submitted sufficient evidence of
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municipal policy or custom to support municipal liability. Instead, Mr. Dupree has
offered only an inadmissible hearsay statement in his own affidavit. Such evidence
is insufficient to defeat summary judgment. Avirgan v. Hull, 932 F.2d 1572, 1577
(11th Cir. 1991) (“A nonmoving party, opposing a motion for summary judgment
supported by affidavits cannot meet the burden of coming forth with relevant
competent evidence by simply relying on . . . evidence which would be inadmissible
at trial.”). As a result, the Magistrate Judge’s Recommendation to enter summary
judgment against Mr. Dupree on his § 1983 claim against the City is due to be
adopted.
Accordingly, it is ORDERED that:
1

The Recommendation is REJECTED and Mr. Dupree’s Objections are
SUSTAINED with regard to the portion of the Recommendation setting
this action for a non-jury trial.

2.

To the extent that the Recommendation recommends granting summary
judgment on the state-law claims, the Recommendation is REJECTED
and Mr. Dupree’s objections are SUSTAINED.

3.

The remainder of the Recommendation is ADOPTED, and Mr. Dupree’s
remaining objections are OVERRULED

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4.

Defendants’ Motion for Summary Judgment is GRANTED on the
§ 1983 claim against Defendant Phenix City, Alabama, and DENIED on
the remainder of Mr. Dupree’s claims.

A separate order will be issued setting this case for a jury trial on Plaintiff
Danny Lawrence Dupree’s Fourth Amendment Claim against Defendant S. Lashley
in her individual capacity and the state-law claims against Defendants City of Phenix
City and S. Lashley.
DONE this 25th day of September, 2012.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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