Harrington v. City of Phenix City et al

Filing 138

MEMORANDUM OPINION AND ORDER that Dfts' 105 & 108 Motion for Summary Judgment is GRANTED in part and DENIED in part as follows: 1) Summary judgment is GRANTED on (1) Plf's Section 1983 claims against Rachel Hauser and the City of Phenix City (Counts I and II and Count IX, as incorporated into Count I) and (2) Plf's Section 1985(3) claim against Rachel Hauser and the City of Phenix City (Count IX); 2) Summary judgment is DENIED with respect to Plf's state law claims agains t Rachel Hauser and the City of Phenix City (Counts IVVIII and X); further ORDERED that Plf's state law claims are DISMISSED without prejudice; Plaintiff has leave to re-file the claims in state court; further ORDERED that Rachel Hauser and the City of Phenix City are DISMISSED as parties to this action. Signed by Chief Judge William Keith Watkins on 10/24/2012. (Attachments: # 1 Civil Appeals Checklist) (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
PATRICK HARRINGTON,
Plaintiff,
v.
CITY OF PHENIX CITY, et al.,
Defendants.

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CASE NO. 3:10-CV-1048-WKW
[WO]

MEMORANDUM OPINION AND ORDER
As all parties agree, this is a police brutality case. Plaintiff Patrick Harrington
brings suit alleging three law enforcement officers from two agencies used excessive
force or failed to prevent the use of excessive force against him. Two of the three
individual defendants in this civil action, Kirby Dollar and Timothy Watford, were
also criminally convicted under 18 U.S.C. § 242 as a result of the incident. (Doc. #
106 at 4; Doc. # 111 at 4.) In addition to Plaintiff’s 42 U.S.C. §§ 1983 and 1985(3)
claims against the individual defendants and the City of Phenix City, Plaintiff has also
asserted various state law claims.
Before the court are Defendant Rachel Hauser’s (“Hauser”) Motion for
Summary Judgment (Doc. # 105) and Defendant City of Phenix City’s (“the City”)

Motion for Summary Judgment (Doc. # 108).1 Supporting briefs and evidentiary
submissions accompany both motions. (Docs. # 106 & 109.) Plaintiff responded in
opposition to both motions and included evidentiary submissions. (Docs. # 111 & #
114.) Defendant Hauser replied to Plaintiff’s response (Doc. # 117), while the City
did not. After careful consideration of the arguments of counsel, the applicable law,
and the record, the court finds that Defendants’ motions are due to be granted in part
and denied in part.
I. JURISDICTION AND VENUE
The court exercises subject matter jurisdiction over Plaintiff’s federal law
claims pursuant to 28 U.S.C. § 1331. It enjoys jurisdiction over the state law claims
pursuant to 28 U.S.C. § 1367(a). The parties do not contest personal jurisdiction or
venue, and allegations sufficiently support both.

The court further addresses

jurisdictional questions regarding Plaintiff’s state law claims in Part IV.C. below.
II. STANDARD OF REVIEW
To succeed on summary judgment, the movant must demonstrate “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). The court must view the evidence and the

1

The two remaining Defendants, Timothy Watford and the Estate of Kirby Dollar, have
not filed motions for summary judgment.
2

inferences from that evidence in the light most favorable to the nonmovant.
Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010). The court should
grant the motion if the pleadings, together with supporting materials in the record,
show that the movant is entitled to judgment as a matter of law. Greenberg v.
BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam).
The party moving for summary judgment “always bears the initial responsibility
of informing the district court of the basis for its motion.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). This responsibility includes identifying the portions of the
record illustrating the absence of a genuine dispute of material fact. Id. If the movant
meets its evidentiary burden, the burden shifts to the nonmoving party to establish –
with evidence beyond the pleadings – that a genuine dispute material to each of its
claims for relief exists. Id. at 324.
A genuine dispute of material fact exists when the nonmoving party produces
evidence allowing a reasonable factfinder to return a verdict in its favor. Waddell v.
Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001). The nonmoving
party “must do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). Conclusory allegations based on subjective beliefs are likewise insufficient
to create a genuine issue of material fact and do not preclude summary judgment.
3

Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000) (citing Evers v.
Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985)).
III. BACKGROUND2
On November 26, 2010, three bail bondsmen3 took Patrick Harrington into
custody in Lee County, Alabama. (Doc. # 32 ¶ 11.) There were warrants out for
Harrington’s arrest, including for failure to appear in court in Russell County. (Tr.
Trans. Williams at 9.)4 Plaintiff had previously evaded arrest by Defendant Kirby
Dollar (“Dollar”), a deputy with the Russell County Sheriff’s Department, a fact that
frustrated Dollar. (Tr. Trans. Dollar at 4–5.) Dollar asked bail bondsman Joseph
Williams (“Williams”) to contact him if Williams ever apprehended Plaintiff. (Tr.
Trans. Dollar at 4–5.)
When Williams apprehended Plaintiff on November 26, he did as asked. This
was the Saturday after Thanksgiving, and Dollar had been drinking at home starting

2

“[F]acts, as accepted at the summary judgment stage of proceedings, may not be the
actual facts of the case.” Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002) (internal
quotation marks and citation omitted). Analysis begins with a summary of the facts as viewed in
the light most favorable to the plaintiff. Id.
3

The three bondsmen on scene were Joseph Williams, Tony Viggins, and Jeremy Black.
Viggins and Black were associates of Williams. Dante Greene, a security guard employed by
Williams in another of his business ventures, was also on the scene. (Tr. Trans. Williams at
15–16.)
4

All parties attached transcripts from Watford’s criminal trial in Case No. 3:11-cr-55MEF as exhibits to their summary judgment briefs in this case. The excerpts refer to the name of
the person testifying.
4

at about noon. (Tr. Trans. Dollar at 5.) He continued to drink into the evening and
hosted a number of guests at his home, including his colleague from the Russell
County Sheriff’s Department, Deputy Tim Watford (“Watford”), and Officer Hauser
of the Phenix City Police Department. (Tr. Trans. Dollar at 6–7.) All three had been
drinking for several hours when, sometime after 11:00 p.m., Dollar received the call
from Williams; Dollar resolved to go “get a few licks in.” (Tr. Trans. Dollar at 7.)
Dollar, Watford, and Hauser piled into Dollar’s unmarked law enforcement
vehicle, a red Chevrolet Monte Carlo, and Dollar drove them from his home in Russell
County to the garage parking lot in Lee County where Williams had Harrington in
custody. (Doc. # 32 ¶ 13; Tr. Trans. Williams at 32.) Dollar activated the car’s wigwag blue lights as he pulled into the lot. (Tr. Trans. Williams at 32.) Dollar, Watford,
and Hauser exited the car and greeted Williams and the others. While Williams was
acquainted with Dollar and Watford, he did not know Hauser, and the men introduced
Williams to Hauser for the first time. (Tr. Trans. Williams at 34; Tr. Trans. Hauser
at 15–16.) At this point, Williams and his associates were all aware Hauser was a law
enforcement officer.
Meanwhile, Plaintiff – who the bondsmen Tased minutes earlier while
apprehending him (Tr. Trans. Williams at 22) – was lying on the ground with his
hands cuffed behind his back. (Tr. Trans. Hauser at 15.) Dollar and Watford
5

approached Plaintiff while Hauser went back toward the Monte Carlo and “propped
[herself] up” on the car. (Tr. Trans. Williams at 36.) Dollar and Watford began to
attack Harrington.5 (Doc. # 32 ¶ 16.) Plaintiff did not and could not resist.
Handcuffed the entire time, he begged Dollar and Watford to stop beating him. (Tr.
Trans. Williams at 41.) Plaintiff eventually lost consciousness as a result of the
beating. (Doc. # 32 ¶ 20.) During the attack, Hauser stood fifteen to twenty feet
away, neither intervening to stop the assault nor actively participating in it. (Tr.
Trans. Hauser at 16, 28–29; Tr. Trans. Watford at 11; Aff. of Harrington at 75.)
The attack only stopped when a marked Lee County Sheriff’s Department unit
arrived. (Tr. Trans. Williams at 41.) After briefly speaking with the Lee County
deputies, Dollar, Watford, and Hauser got back into the Monte Carlo, and Dollar
drove them back to his house. Later, a Lee County ambulance arrived and transported
Plaintiff to the hospital. (Doc. # 32 ¶ 25.) As a result of the incident, Plaintiff
suffered full body bruising, a burst ear drum in his left ear, potentially permanent loss
of sight in his right eye, loss of use of his left leg, and severe tearing to his left knee
and leg. He also required stitches for deep lacerations on his body and face. (Doc. #
32 ¶ 27.)
5

While there is some dispute as to whether Dollar and Watford also kicked and choked
Plaintiff, there is no dispute that they both participated in the assault and that they punched
Plaintiff almost continuously for a number of minutes. (Tr. Trans. Hauser at 50; Tr. Trans.
Williams at 41.)
6

Dollar, Watford, and Hauser were suspended from their duties as law
enforcement officers and later resigned. (Doc. # 32 ¶ 32.) Deputies Dollar and
Watford were sentenced to prison for federal criminal convictions arising from the
incident. (Doc. # 106 at 4.) Dollar died before he was to surrender to serve his prison
sentence. (Doc. # 97.) Officer Hauser was not charged criminally. (Tr. Trans. Hauser
at 47.)
IV. DISCUSSION
Plaintiff has raised federal claims under Sections 1983 and 1985 as well as a
number of claims under state law against Hauser and the City. Part A resolves
preliminary matters pertaining to the federal claims. Part B discusses the Section
1983 claims. Part C concludes with a discussion of the state law claims.
A.

Preliminary Matters
1.

Plaintiff’s claim under 42 U.S.C. § 1985(3) fails because there is no
allegation of qualifying discriminatory animus.

The elements of a cause of action under Section 1985(3) are “(1) a conspiracy;
(2) for the purpose of depriving, either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of equal privileges and immunities
under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person
is either injured in his person or property or deprived of any right or privilege of a
citizen of the United States.” United Bhd. of Carpenters & Joiners of Am., Local v.
7

Scott, 463 U.S. 825, 828–29 (1983).
Both the Supreme Court of the United States and the Eleventh Circuit Court of
Appeals have interpreted the second element to require “some racial, or perhaps
otherwise class-based, invidiously discriminatory animus.” Griffin v. Breckenridge,
403 U.S. 88, 101 (1971); Lucero v. Operation Rescue of Birmingham, 954 F.2d 624,
628 (1992). The Eleventh Circuit later joined the majority of Courts of Appeals to
hold that gender-based conspiracies are among the types of class-based animus
prohibited by Section 1985(3). Lyes v. City of Riviera Beach, 126 F.3d 1380, 1391
(11th Cir. 1997). Plaintiff alleges no comparable class-based animus.
Plaintiff argues Defendants harbored animus against him because he was a
fugitive. Unlike race and sex, however, being a fugitive is not “an immutable
characteristic determined solely by the accident of birth.” Id. at 1390 (quoting
Frontiero v. Richardson, 411 U.S. 677, 686 (1973)). Animus against fugitives as a
class therefore seems unlikely to be animus of the sort contemplated by the drafters
of Section 1985(3). Moreover, the record evidence indicates that whatever animus
existed in this case was against Harrington personally – as one who had evaded arrest
by the law enforcement officers involved – not against fugitives or arrestees as a class.
(Tr. Trans. Dollar at 5; Tr. Trans. Hauser at 11–12; Tr. Trans. Watford at 8.) Because
Plaintiff alleges no qualifying class-based animus, he fails to satisfy the second
8

element of a Section 1985(3) claim, and Defendants are entitled to summary judgment
on that claim.
2.

Claims against Hauser in her official capacity are actually claims
against the City.

Plaintiff has sued Defendant Hauser, who was at the relevant time a Phenix City
police officer, in both her official and individual capacities. Plaintiff’s claims against
Hauser in her official capacity are actually claims against the City and therefore are
due to be dismissed to avoid redundancy, as Plaintiff has brought the same claims
against the City. Individual defendants sued in their official capacities stand in the
stead of the governmental entity they represent. Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989); see also Busby v. City of Orlando, 931 F.2d 764, 776 (11th
Cir. 1991) (“[S]uits against municipal officers are . . ., in actuality, suits directly
against the city that the officer represents.”).
Plaintiff argues that his official capacity claims against Hauser6 are not
“functionally equivalent” to his claims brought against the City. (Doc. # 111 at 7–8.)
Saying it does not make it so. The claims are functionally equivalent because the
same analysis – whether Hauser was acting under color of state law and pursuant to
an official City policy or custom – applies to claims against her in her official capacity
6

In the relevant counts of the complaint, Plaintiff refers only to “Defendants, or each or
all of them” (Doc. # 32 ¶¶ 50, 59), without differentiating among claims brought against Hauser
in her official or individual capacities or those claims brought against the City.
9

and against the City. Disposing of the official capacity claims against Hauser only
rids the docket of a redundant claim. It does not change the substance of what remains
before the court.
B.

Remaining Section 1983 Claims
To establish § 1983 individual liability, a plaintiff must demonstrate that (1) a

defendant deprived the plaintiff of a right secured by the United States Constitution,
and (2) a defendant committed the act or omission causing the deprivation while
acting under color of state law. Almand v. DeKalb Cnty., 103 F.3d 1510, 1513 (11th
Cir. 1997). A plaintiff who also claims official liability or municipal liability –
concepts which are one and the same, as shown above – cannot simply allege a theory
of respondeat superior to support that claim. Monell v. Dep’t Soc. Servs., 436 U.S.
658, 663 (1978). To establish official liability or the liability of a municipality, a
plaintiff must show both that a defendant deprived him of a constitutional right while
acting under color of state law and that the deprivation occurred pursuant to
governmental “custom” or “policy.” Griffin v. City of Opa-locka, 261 F.3d 1295,
1307 (11th Cir. 2001) (citing Floyd v. Waters, 133 F.3d 786, 793 (11th Cir. 1998)).
Hauser and the City moved for summary judgment and produced evidence
indicating Rachel Hauser did not act under state law. Because Plaintiff failed to
respond with evidence that Rachel Hauser was acting under state law, his Section
10

1983 claims against her and the City are due to fail. See Waddell, 276 F.3d at1279
(articulating the burden of the nonmoving party where the movant provides evidence
in support of summary judgment).
1.

“Under color of law” requirement is a question of law on this record.

Courts in the Eleventh Circuit and elsewhere have exhibited some ambivalence
about whether action under color of law is a question of law or one of fact. For
reasons set forth below, it appears that at least in this case, it is a question of law.
The Eleventh Circuit has held that the concept of acting under color of state law
is coterminous with the state action doctrine. Almand, 103 F.3d at 1513 n.7. The
Supreme Court agrees that the two are identical in the case of a Section 1983 action
brought against a state official.7 Lugar, 457 U.S. at 929. Both courts sound in accord
that state action is a question of law. See, e.g., Blum v. Yaretsky, 457 U.S. 991,
997–98 (1982) (describing the question whether there is state action as one of law);
Cuyler v. Sullivan, 446 U.S. 335, 342 n.6 (1980) (holding the same); Almand, 103
F.3d 1514 (holding the same). This all indicates that the question of whether a
defendant acts under state law is one of law.
At least one other Eleventh Circuit panel, however, suggested the question was
7

The Supreme Court left room for the theoretical possibility that conduct could constitute
action under color of state law but not state action in the case of a private person applying a state
statute. Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n.18 (1982) (citing Adickes v. S.H.
Kress & Co., 398 U.S. 144, 161 n. 23 (1970) as an example).
11

one of fact when it upheld a jury verdict based on “evidence from which a reasonable
jury could conclude” that the defendant’s tortious and criminal conduct occurred while
he was acting under color of state law. Griffin, 261 F.3d at 1303. Additionally,
district courts within the Eleventh Circuit have held that it is a question of fact, as
have other circuits. Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 48 (1st Cir. 1999)
(finding genuine disputes of fact precluding summary judgment on question of
whether police officer acted under color of law); Gallagher v. Neil Young Freedom
Concert, 49 F.3d 1442, 1448 (10th Cir. 1995) (describing state action inquiry as a
question of fact); Ott v. City of Mobile, 169 F. Supp. 2d 1301, 1309 (S.D. Ala. 2001);
Chancey v. Sw. Fla. Water Mgmt. Dist., No. 95-2027-CIV-T-17C, 1997 WL 158312,
at *10 (M.D. Fla. Mar. 17, 1997).
There are instances where it is possible to determine “whether a person acted
under color of state law as a matter of law” and others where “unanswered questions
of fact regarding the proper characterization of the actions” are left for the jury to
decide. Layne v. Sampley, 627 F.2d 12, 13 (6th Cir. 1980) (internal quotation marks
and citations omitted). The determination “inevitably requires . . . line drawing.”
Griffin, 261 F.3d at 1303. “It is only through a process of ‘sifting facts and weighing
circumstances’ that we arrive at a correct determination.” Id. (quoting McDade v.
West, 223 F.3d 1135, 1139 (9th Cir. 2000)). Here, there are no unanswered questions
12

of fact regarding the characterization of Rachel Hauser’s actions; Plaintiff simply
failed to produce evidence supporting his position.
2.

Where an officer purports to exercise official authority, she acts
under color of law.

A defendant in a Section 1983 suit acts under color of state law where she
exercises power “possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.” West v. Akins, 487 U.S. 42, 49
(1988) (internal quotation marks and citations omitted); Almand, 103 F.3d at 1515
(quoting West). The dispositive question is whether the official acted pursuant to
power derived from state authority or acted merely as a private individual. Almand,
103 F.3d at 1513. Misuse of power “made possible only because the wrongdoer is
clothed with the authority of state law” constitutes action under color of law.8 United
States v. Classic, 313 U.S. 299, 326 (1941).
Defendants argue fervently that Rachel Hauser was not acting under color of
law because she was off-duty, intoxicated, and out of her jurisdiction. (Doc. # 106 at
11–14.) “[T]he mere fact that an officer is off duty and out of uniform does not
resolve the color-of-state-law issue.” Ott, 169 F. Supp. 2d at 1307; see also Almand,

8

Classic was a case applying the “under color of law” requirement contained in the
statutory precursor to 18 U.S.C. § 242. 313 U.S. at 326. The phrase “under color of law” has the
same meaning in both a criminal action under 18 U.S.C. § 242 and a civil action under 42 U.S.C.
§ 1983. Butler v. Sheriff of Palm Beach Cnty., 685 F.3d 1261, 1268 n.8 (11th Cir. 2012).
13

103 F.3d at 1514–15 (analyzing color of law question carefully even though officer
was off-duty and out of uniform). Nor does the propriety of an officer’s conduct
determine whether she acted under color of state law; “[a]cts of officers who
undertake to perform their official duties are included whether they hew to the line of
their authority or overstep it.” Screws v. United States, 325 U.S. 91, 111 (1945).
Thus, it is less important whether Hauser had any actual authority when she was in
Lee County, outside of Phenix City where she had jurisdiction, and more important
whether she purported to have authority or acted with the pretense of authority while
there.
The Eleventh Circuit took the “purported authority” approach in two recent
cases. In Almand, an off-duty, out of uniform police office did not act under color of
state law when, after the plaintiff asked him to leave her apartment, he forced his way
back in and raped her. 103 F.3d at 1515. Though she initially let him in because he
was a police officer and purported to have information about those responsible for her
daughter’s rape a month earlier, “he was no different from any other ruffian” when he
“forced open the closed door with such shock that wood broke off the door.” Id. at
1512, 1515. He purported to use his authority for his initial entry – though he was offduty – but not the second one, and thus he was acting as a mere private citizen when
he forced his way back in. Id. at 1515.
14

In Butler, a corrections officer came home from work to find a naked young
man in her nineteen-year-old daughter’s closet. 685 F.3d at 1263. Though she pulled
her service weapon on the man, handcuffed, and detained him, “she was not
purporting to exercise her official authority to subdue a criminal for purposes of an
arrest.” Id. at 1267. Neither the handcuffs nor the weapon – themselves indicia of
authority – amounted to a purported exercise of her official authority. Firearm
possession is, under most circumstances, lawful, and nothing restricts the use of
handcuffs to law enforcement officers. Id. When she called her boss for advice about
whether the young man could be charged criminally for his presence there, “she did
no more than an ordinary citizen could do by simply requesting information from law
enforcement authorities.” Id.
By contrast, the Eleventh Circuit has cited approvingly the Fifth Circuit’s
opinion in United States v. Tarpley, 945 F.2d 806 (5th Cir. 1991). See Butler, 685
F.3d at 166–68 (analyzing Tarpley and contrasting it with Butler). In Tarpley, there
was sufficient evidence for a jury to find that a police officer acted under color of law9
when he assaulted his wife’s lover, placed his service pistol in the man’s mouth, and
threatened to kill him. 945 F.2d at 808. During the assault, the officer told the victim,

9

Tarpley was a 18 U.S.C. § 242 case, id. at 806, but as stated above, the phrase “under
color of law” has the same meaning in both a criminal action under 18 U.S.C. § 242 and a civil
action under 42 U.S.C. § 1983. Supra, note 6.
15

“he was a sergeant on the police department, that he would and should kill [the
victim], and that he could get away with it because he was a cop.” Id. The officer and
two of his colleagues then followed the victim in two squad cars to the edge of town.
Id. These were not the actions of “a jealous husband,” but of a man purporting to act
under official authority. Id. at 809. Though the officer lacked official authority for
his conduct, he nonetheless “claimed to have special authority for his actions by virtue
of his official status,” and his conduct therefore fell outside the ambit of his personal
pursuits. Id.
Even superficially different standards lead to substantively equivalent analysis.
After an off-duty, out of uniform police officer intervened in a street fight following
Mardi Gras revelery – ultimately pistol whipping one man and fatally shooting
another – our sister district looked to several factors to establish whether the officer
acted under color of law. Ott, 169 F. Supp. 2d at 1307, 1309 (concluding that a
genuine issue of material fact remained regarding whether the officer acted under
color of state law). Relying on cases from other circuits, the court considered whether
the officer attempted or initiated an arrest, flashed his badge, displayed or used a
department-issued weapon, or orally identified himself as a police officer. See id.
(collecting cases). These factors all bear on the essential question: whether the officer
purported to exercise official authority. Id. at 1307.
16

3.

Rachel Hauser did not act under color of law.

Under the undisputed facts of this case, Rachel Hauser10 exercised no authority,
purported or actual. Unlike the officer in Tarpley, she never “claimed to have special
authority for” her action – or omission, as the case may be – “by virtue of [her]
official status.” Tarpley, 945 F.2d at 809. Not only did Plaintiff never purport to
invoke authority, she did not purport to act at all. She stood fifteen to twenty feet
away during the duration of the assault. (Tr. Trans. Hauser at 16; Tr. Trans. Watford
at 11.) She never struck Plaintiff. (Tr. Trans. Hauser 28–29; Aff. of Harrington at
75.) Inaction, rather than action, marks her presence at the scene.
Plaintiff’s complaint contains a bare allegation that Rachel Hauser “stood guard
and would not let anyone help Harrington.” (Doc. # 32 ¶ 21.) There is no evidence
in the record, however, from which a reasonable juror could find that Rachel Hauser
actually prevented the bondsmen from interceding on Harrington’s behalf; Plaintiff
points to no evidence “creating unanswered questions of fact regarding the proper
characterizations of” Hauser’s actions. See Layne, 627 F.2d at 13. Rachel Hauser did
not attempt an arrest, flash a badge, or display or use a weapon.11 (Tr. Trans. Hauser

10

The only question before the court is whether Rachel Hauser’s actions – not those of
Kirby Dollar or Tim Watford – were under color of law. Only Hauser and her employer have
moved for summary judgment.
11

Hauser was unarmed (Tr. Trans. Hauser at 28), but the bondsmen did not know that at

the time.
17

at 44; Tr. Trans. Williams at 43.) Though she had a mobile phone, she did not call
dispatch or ask for back-up.12 (Tr. Trans. Hauser at 44.) She did not place herself
between the assault and the bondsmen on the scene to prevent them from interfering.
(Tr. Trans. Black at 11; Tr. Trans. Watford at 11; Tr. Trans. Williams at 36.) Nothing
on this record indicates that Hauser was acting under color of law when she failed to
intervene.13
Plaintiff does offer specific evidence that Williams did not intervene to stop the
attack14 because he “[did not] know if Police Officer Hauser had her gun with her.”
(Tr. Trans. Williams at 42.) The subjective impressions of Plaintiff or of the
bondsmen, however, have only limited relevance for determining whether Hauser
acted under color of law; “the primary focus of the color of law analysis must be on
the conduct of the police officer.” Ott, 169 F. Supp. 2d at 1309 n.6 (internal quotation
marks and citations omitted).
Plaintiff has not argued that Williams and the others did not intervene because

12

She also did not call for assistance preventing the assault, which she conceivably could
have done as a private citizen.
13

While it is true that an officer may be held liable under Section 1983 for failing to
intervene when a constitutional violation takes place in her presence, Ensley v. Soper, 142 F.3d
1402, 1407 (11th Cir. 1998), the officer must still be acting under color of law when she fails to
intervene. That is, she must still purport to exercise official authority.
14

Unlike Dollar, Watford, and Hauser, Williams was carrying a firearm. (Tr. Trans.
Williams at 42.)
18

of an assertion of authority on the part of Defendant Hauser. In fact, undisputed
record evidence indicates the contrary – that the bondsmen believed Hauser posed no
obstacle because “she was so drunk she [probably] couldn’t shoot straight.” (Tr.
Trans. Williams at 96.) Rather than purporting to assert any official authority, Hauser
was “just standing around, trying to stay upright.” (Tr. Trans. Williams at 96.)
Moreover, the bondsmen’s mere knowledge that Hauser was a law enforcement
officer, without any action or assertion of authority on her part, cannot be enough to
establish action under state law. See Almand, 103 F.3d at 1514–15 (holding that
officer’s action in breaking into plaintiff’s home and raping her was not under state
law though plaintiff was subjectively aware that he was an officer).
Make no mistake: There was nothing honorable about Hauser’s action or
inaction that night. The undisputed evidence shows that she did not even attempt to
help a defenseless, handcuffed detainee as he was savagely beaten by two intoxicated
men. By her own testimony, the beating went on for several minutes before she told
the men to stop.15 However reprehensible her action or inaction, though, it was not

15

A factual dispute with no bearing on the outcome of the case will not defeat a motion
for summary judgment. McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir.
2003) (per curiam). While there is a dispute as to whether she told the men to stop the assault
spontaneously or because she saw the Lee County Sheriff’s car arriving on scene, this is
immaterial to the question of whether she acted under color of state law. (Compare Tr. Trans.
Hauser at 20–21 and Tr. Trans. Watford at 18 with Tr. Trans. Black at 11 and Tr. Trans.
Williams at 41.) There is no indication she invoked any official authority when she told them to
stop, and even if she had, telling her compatriots to stop the assault did not amount to a
19

under color of law. “Section 1983 creates no substantive rights; it merely provides a
remedy for deprivations of federal statutory and constitutional rights.” Almand, 103
F.3d 1512. Plaintiffs in federal court may not use Section 1983 to supplant state tort
law. Baker v. McCollan, 443 U.S. 137, 146–47 (1979). Without action under state
law, Plaintiff’s Section 1983 claim against Rachel Hauser must fail.
4.

Municipal liability will not stand against the City because Defendant
Hauser was not acting under state law.

To impose liability on a governmental entity under Section 1983, a plaintiff
must establish that an employee or official acted under color of law. Monell, 436 U.S.
at 692. Because, as shown above, Plaintiff has not raised a genuine issue of material
fact as to whether Rachel Hauser acted under color of law, his claims against the City
also fail as a matter of law.
Even if the court were to assume that Rachel Hauser was acting under color of
law, Plaintiff’s claim for municipal liability nonetheless would be due to fail because
Plaintiff has not shown that Hauser undertook her actions or inactions pursuant to the
City’s “policy” or “custom.” The custom or policy requirement distinguishes “acts
of the municipality from acts of employees of the municipality, and thereby make[s]
clear that municipal liability is limited to action for which the municipality is actually

deprivation of Plaintiff’s constitutional rights.
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responsible.” Pembaur v. City of Cincinatti, 475 U.S. 469, 479 (1986) (emphasis in
original). Section 1983 does not support vicarious or respondeat superior liability,
which rest “solely on the basis of the existence of an employer-employee
relationship.” Monell, 436 U.S. at 692. Plaintiff has offered no evidence that Rachel
Hauser’s conduct that night came pursuant to the City’s official policy or custom, and
his claim against the City therefore fails as a matter of law.
5.

Plaintiff’s Section 1983 claim for false arrest fails as a matter of law.

Plaintiff’s claim under Count IX rests on the time period following his lawful
arrest; he alleges that the “extended” roadside detention was for an improper purpose
and lacked supporting probable cause. (Doc. # 32 ¶¶ 92, 104.) While he admits that
his initial arrest was lawful and supported by probable cause (Doc. # 32 ¶ 11; Doc. #
74 at 18), he asks the court to conclude that independent probable cause was necessary
to support his “extended” detention. (Doc. # 32 ¶¶ 101–104.)
The court assumes, without deciding, that Count IX presents an actionable,
independent claim.16 Even if it does, the claim fails against Hauser and the City for
the reasons set forth above because there was no action under state law on the part of

16

Plaintiff offers no support for his position that the period of detention while the
bondsmen waited for Defendants’ arrival should be treated as a separate or “extended” instance
requiring independent probable cause. Meanwhile, the existence of probable cause stands as an
absolute bar to a subsequent Section 1983 cause of action for false arrest. Brown v. City of
Huntsville, 608 F.3d 724, 734 (11th Cir. 2010).
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Hauser.
C.

Plaintiff’s State Law Claims
In addition to his federal causes of action, Plaintiff also raises claims under state

law. Against both Hauser and the City,17 he brings a claim for intentional infliction
of emotional distress. (Doc. # 32, Count V.) Against Hauser,18 he brings state law
claims for assault and battery (Doc. # 32, Count IV), “neglectfulness” (Doc. # 32,
Count VI), and false imprisonment (Doc. # 32, Count X). Finally, he brings state law
claims against the City for neglectfulness under Ala. Code § 11-47-190 (Doc. # 32,
Count VII) and negligent training and supervision under Ala. Code § 6-11-27 (Doc.
# 32, Count VIII). Defendants Hauser and the City moved for summary judgment on
the complaint as a whole, not individual counts. (Docs. # 105 & 108.)
Because Plaintiff’s Section 1983 claims against Dollar and Watford remain,
claims over which the court has jurisdiction remain. The court nonetheless declines
to exercise jurisdiction over said claims based on the remaining federal claims against
Defendants Dollar and Watford.

17

Like his Section 1983 claims, Plaintiff did not actually distinguish among Defendants
in Count V. He alleged only, “Defendants, and each and all of them, either intended to inflict
emotional distress on the Plaintiff, or they should have known that emotional distress was the
likely result of their conduct.” (Doc. # 32 ¶ 77.) Accordingly, the court construes this as a claim
against Hauser and the City, as well as against Dollar and Watford.
18

Counts IV, VI, and X were also against Defendants Dollar and Watford, but only
Hauser has moved for summary judgment.
22

“[I]n any civil action of which the district courts have original jurisdiction, the
district court shall have supplemental jurisdiction over all other claims that are so
related to claims” over which the court has original jurisdiction “that they form part
of the same case or controversy.”

28 U.S.C. § 1367(a).

Notwithstanding

supplemental jurisdiction, a district court has the discretion to decline supplemental
jurisdiction if
“(1) the claim raises a novel or complex issue of State law, (2) the claim
substantially predominates over the claim or claims over which the
district court has original jurisdiction, (3) the district court has dismissed
all claims over which it has original jurisdiction, or (4) in exceptional
circumstances, there are other compelling reasons for declining
jurisdiction.” 28 U.S.C. § 1367(d).
The court finds that this case presents exceptional circumstances compelling the
court to decline supplemental jurisdiction over Plaintiff’s state law claims against
Hauser and the City. See 28 U.S.C. § 1367(d). Though Plaintiff’s federal claims
against Dollar and Watford remain, the future of those claims in federal court is
exceedingly uncertain.19

Declining to exercise supplemental jurisdiction over

Plaintiff’s state law claims will not make this litigation more piecemeal than it already

19

Plaintiff has indicated that he will dismiss his claims against Dollar. (Doc. # 135.)
Additionally, the litigation as it pertains to Watford is stayed indefinitely pending resolution of
his bankruptcy proceedings. (Doc. # 116.)
23

is.20 Plaintiff may also raise a novel issue of state law in Count VI, where he brings
a claim against Hauser that tracks Ala. Code § 11-47-190, a statutory provision which,
by its terms, applies only to a municipality.

A district court’s exercise of

supplemental jurisdiction is discretionary, and in circumstances like this, reasoned
judgment cautions against the exercise of jurisdiction. See Williams v. Bennett, 689
F.2d 1370, 1379–80 (11th Cir. 1982) (affirming a district court’s decision not to
exercise pendent jurisdiction over state law claims against one defendant where
plaintiff alleged no federal claims against that defendant, only Section 1983 claims
against other defendants).
Accordingly, Plaintiff’s state law claims against Defendants Hauser and the
City are due to be dismissed. This dismissal will not work to Plaintiff’s disadvantage;
if he elects to bring suit in state court, operation of 28 U.S.C. § 1367(d) tolls the
statute of limitations for his claims during the pendency of this action.
V. CONCLUSION
For the foregoing reasons, it is ORDERED that Defendants’ Motion for
Summary Judgment (Docs. # 105 & 108) is GRANTED in part and DENIED in part
as follows:

20

Upon cause shown by Defendants Hauser and the City as well as Plaintff (Docs. # 119,
120, & 121), the court has already denied a motion to stay the litigation as it pertains to Hauser
and the City pending the resolution of Watford’s bankruptcy. (Doc. # 123.)
24

1.

Summary judgment is GRANTED on (1) Plaintiff’s Section 1983 claims
against Rachel Hauser and the City of Phenix City (Counts I and II and
Count IX, as incorporated into Count I) and (2) Plaintiff’s Section
1985(3) claim against Rachel Hauser and the City of Phenix City (Count
IX).

2.

Summary judgment is DENIED with respect to Plaintiff’s state law
claims against Rachel Hauser and the City of Phenix City (Counts
IV–VIII and X).

It is further ORDERED that Plaintiff’s state law claims are DISMISSED
without prejudice. Plaintiff has leave to re-file the claims in state court.
It is further ORDERED that Rachel Hauser and the City of Phenix City are
DISMISSED as parties to this action.
DONE this 24th day of October, 2012.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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