Billingsley v. Orr
MEMORANDUM OPINION AND ORDER GRANTING IN PART and DENYING IN PART 20 MOTION for Summary Judgment as set out herein. Signed by Judge Virginia Emerson Hopkins on 1/13/2015. (JLC)
2015 Jan-13 PM 02:47
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
Case No.: 1:13-CV-1337-VEH
MEMORANDUM OPINION AND ORDER
INTRODUCTION AND PROCEDURAL HISTORY
Plaintiff Kristopher Billingsley (“Mr. Billingsley”) initiated this civil rights
case on July 18, 2013, against Defendant Willie Orr (“Officer Orr”). (Doc. 1). Mr.
Billingsley complains about how Officer Orr treated him during a law enforcement
incident which occurred on or about June 1, 2012. (Doc. 1 at 3 ¶ 10). Mr.
Billingsley’s complaint contains one federal count and three other counts arising
under Alabama law, all of which appear to be brought against Officer Orr solely in
his individual capacity.1
A § 1983 claim against a person in his official capacity seeks to impose liability on the
entity which he represents, and not on him personally. See, e.g., Welch v. Laney, 57 F.3d 1004, 1008
(11th Cir. 1995) (“Welch’s action against the Sheriff and Chief Deputy Sheriff in their official
capacities imposes liability on the entity they represent, and not on them as individuals.” (citing
Brandon v. Holt, 469 U.S. 464, 471-72, 105 S. Ct. 873, 877-78, 83 L. Ed. 2d 878 (1985))). As the
Eleventh Circuit has explained the distinctions between these two capacities in more detail:
“Personal-capacity suits seek to impose personal liability upon a government
Count One is for deprivation of civil rights pursuant to 42 U.S.C. § 1983. More
specifically, Mr. Billingsley contends that Officer Orr subjected him to “an
unreasonable search and seizure as there existed no valid and supportable probable
cause or reasonable suspicion that [he] had committed a crime”and violated his rights
to due process. (Doc. 1 at 3-4 ¶ 13).
Count Two is for assault and battery. Count Three is for false imprisonment.
Finally, Court Four is for the tort of outrage.
Pending before the court is a Motion for Summary Judgment (the “Motion”)
(Doc. 20) filed by Officer Orr on November 26, 2014. Officer Orr filed his supporting
brief and evidentiary materials on this same date. (Doc. 21). Mr. Billingsley opposed
the Motion on December 17, 2014. (Doc. 22). Officer Orr followed with his reply
official for actions he takes under color of state law. Official-capacity suits, in
contrast, ‘generally represent only another way of pleading an action against an entity
of which an officer is an agent.’” Id. at 165-66, 105 S. Ct. at 3105 (citations omitted)
(quoting Monell v. Department of Social Services, 436 U.S. 658, 690 n.55, 98 S. Ct.
2018, 2035 n.55, 56 L. Ed. 2d 611 (1978)). In other words, a plaintiff in an action
against a government official in his personal capacity can recover only against the
official’s personal assets. The assets of the governmental entity are not accessible.
The reverse is true in an official capacity lawsuit. Furthermore, “to establish personal
liability in a § 1983 action, it is enough to show that the official, acting under color
of state law, caused the deprivation of a federal right.... [I]n an official-capacity suit
the entity’s ‘policy or custom’ must have played a part in the violation of federal
law.” Id. 473 U.S. at 166, 105 S. Ct. at 3105 (citations omitted).
Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1060 (11th Cir. 1992) (emphasis added). Mr.
Billingsley makes no official policy or custom-based assertions. Further, nothing within his
complaint suggests that he seeks to impose liability on any entity on account of Officer Orr’s official
(Doc. 24) on December 31, 2014. Accordingly, the Motion is under submission and,
for the reasons explained below, is GRANTED IN PART and otherwise is
Officer Orr is a member of the Talladega Drug Task Force and was part of an
anti-drug operation conducted on June 1, 2012. At 9:00 a.m. on that date, another
agent, Jarred Tomlin (“Officer Tomlin”), received a tip by telephone call that James
Pointer (“Mr. Pointer”), a known drug dealer, was selling drugs out of a white Dodge
Durango near the corner of East Sloan Avenue and 19th Street in Talladega.
Officers Tomlin and Orr proceeded to the vicinity of 19th Street and spotted
the white Durango with a couple of guys standing outside of it. Officers Tomlin and
Orr tried to set up a surveillance spot, but lost sight of Mr. Pointer after they had
circled the block in their vehicle.
Later on that same day, Officers Tomlin and Orr came across one of their
informants who stated that she was supposed to buy some crack from Mr. Pointer
Keeping in mind that when deciding a motion for summary judgment the court must view
the evidence and all factual inferences in the light most favorable to the party opposing the motion,
the court provides the following factual background. See Optimum Techs., Inc. v. Henkel Consumer
Adhesives, Inc., 496 F.3d 1231, 1241 (11th Cir. 2007) (observing that, in connection with summary
judgment, a court must review all facts and inferences in a light most favorable to the non-moving
party). This statement does not represent actual findings of fact. See In re Celotex Corp., 487 F.3d
1320, 1328 (11th Cir. 2007). Instead, the court has provided this statement simply to place the
court’s legal analysis in the context of this particular case or controversy.
who reportedly was getting the drugs ready for her at the Sunrise Apartments. Based
upon this tip, Officers Tomlin and Orr went to the Sunrise Apartments and saw Mr.
Pointer pull out from that residential area in the white Durango.
Officers Tomlin and Orr then ran Mr. Pointer’s tag and name and learned that
he had either a suspended or revoked driver’s license. They decided to stop him for
this offense, but when they turned on the blue lights to their vehicle, Mr. Pointer did
not stop and, instead, drove away from them. An involved and dangerous vehicle
chase ensued until Mr. Pointer crashed into two other cars and collided with a power
Mr. Pointer then exited his vehicle and started running on foot. Eventually, Mr.
Pointer caught up to Mr. Billingsley’s vehicle at the intersection of East Street and
Sloan Avenue. Mr. Pointer opened the rear driver-side door and got into Mr.
Billingsley’s car. Mr. Billingsley immediately put his car in park and exited the
vehicle with his hands up above his head.
After raising his hands, Mr. Billingsley walked towards Officer Orr declaring
that he did not know Mr. Pointer. As soon as Mr. Billingsley heard Officer Orr say
“get on the ground,” he adhered by lowering himself towards the ground. As Mr.
Billingsley was moving his body to the ground in compliance with Officer Orr’s
command, Officer Orr struck him multiple times in the face and left side of the head.
After being hit multiple times by Officer Orr, Mr. Billingsley fell to the ground and
Officer Orr put him in handcuffs.
Mr. Billingsley suffered a bloody nose. Mr. Billingsley and his brother (who
had been a passenger in Mr. Billingsley’s car at the time Mr. Pointer entered it) were
handcuffed and detained for approximately two hours without any explanation as to
why they were in handcuffs.
After being released at the scene, Mr. Billingsley went to the Emergency Room
at the Citizens Baptist Medical Center. The findings from the x-ray of his facial bones
showed that his septum was mildly deviated to the left, but that his sinuses were clear
and that he did not have any fractures or bony destruction. Dr. Fred A. McLeod
operated on Mr. Billingsley’s nose on June 7, 2012.
Summary judgment is proper only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P.
56(c). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). “Once the moving party
has properly supported its motion for summary judgment, the burden shifts to the
nonmoving party to ‘come forward with specific facts showing that there is a genuine
issue for trial.’” International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270,
1274 (11th Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)).
Finally “[i]f the movant bears the burden of proof on an issue, because, as a
defendant, it is asserting an affirmative defense, it must establish that there is no
genuine issue of material fact as to any element of that defense.” International Stamp,
456 F.3d at 1274 (citing Martin v. Alamo Community College Dist., 353 F.3d 409,
412 (5th Cir. 2003)).
Officer Orr claims that qualified immunity bars Mr. Billingsley’s federal
constitutional claims brought against him in his personal capacity pursuant to § 1983
in Count One. (Doc. 21 at 27). “The defense of qualified immunity completely
protects government officials performing discretionary functions from suit in their
individual capacities unless their conduct violates ‘clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Cottone v.
Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003) (internal quotation marks omitted)
(quoting Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003)). “To receive
qualified immunity, a government official first must prove that he was acting within
his discretionary authority.” Id.
This is a two-part test. Under the first step, “the defendant must [prove that he
or she was] performing a function that, but for the alleged constitutional infirmity,
would have fallen within his legitimate job description.” Holloman ex rel. Holloman
v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). Next, the defendant must prove
that he or she was “executing that job-related function.” Id. at 1267. “Once a
defendant establishes that he was acting within his discretionary authority, the burden
shifts to the plaintiff to show that the defendant is not entitled to qualified immunity.”
Cottone, 326 F.3d at 1358.3
Until 2009, the Supreme Court had required a two-part inquiry to determine the
applicability of qualified immunity, as established by Saucier v. Katz, 533 U.S. 194,
201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). Under the Saucier test, “[t]he
threshold inquiry a court must undertake in a qualified immunity analysis is whether
Mr. Billingsley contends within his opposition brief that Officer Orr acted outside the scope
of his discretionary authority. (See Doc. 22 at 20 (“When viewing the facts as Plaintiff alleges, a
reasonable juror can find that Defendant was not acting within the scope of his discretion when
punching Plaintiff in the face and head.”)). However, Mr. Billingsley offers no legal support for this
contention and, in any event, the cases relied upon by Officer Orr in his initial brief (Doc. 21 at 2728) unambiguously confirm that his challenged conduct, occurring while he was pursuing a known
criminal suspect, comes under the umbrella of discretionary coverage.
[the] plaintiff’s allegations, if true, establish a constitutional violation.” Hope v.
Pelzer, 536 U.S. 730, 736, 122 S. Ct. 2508, 2513,153 L. Ed. 2d 666 (2002).
If, under the plaintiff’s allegations, the individual defendants would have
violated a constitutional right, “the next, sequential step is to ask whether the right
was clearly established.” Cottone, 326 F.3d at 1358 (quoting Saucier, 533 U.S. at
201, 121 S. Ct. at 2156). The “clearly established” requirement is designed to assure
that officers have fair notice of the conduct which is proscribed. Hope, 536 U.S. at
739, 122 S. Ct. at 2515. This second inquiry ensures “that before they are subjected
to suit, officers are on notice their conduct is unlawful.” Saucier, 533 U.S. at 206, 121
S. Ct. at 2158.
The “unlawfulness must be apparent” under preexisting law.4 Anderson v.
Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987) (citing
Malley v. Briggs, 475 U.S. 335, 344-45, 106 S. Ct. 1092, 1097-98, 89 L. Ed. 2d 271
(1986)). Therefore, a temporal requirement exists related to this inquiry. More
particularly, a plaintiff must show that a reasonable public official would not have
believed her actions to be lawful in light of law that was clearly established at the
Only Supreme Court, Eleventh Circuit, and Alabama Supreme Court cases can “clearly
establish” the law in this litigation. See Thomas v. Roberts, 323 F.3d 950, 953 (11th Cir. 2003) (“In
this circuit, rights are ‘clearly established’ by decisions of the Supreme Court, this court, or the
highest court of the state in which the case arose.” (citing Hamilton v. Cannon, 80 F.3d 1525, 1532
n.7 (11th Cir. 1996))).
time of the purported violation. See Anderson, 483 U.S. at 639,107 S. Ct. at 3038
(“[W]hether an official protected by qualified immunity may be held personally liable
for an allegedly unlawful official action generally turns on the ‘objective legal
reasonableness’ of the action[,] assessed in light of the legal rules that were ‘clearly
established’ at the time it was taken[.]”) (emphasis added) (citation omitted);
Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 599, 160 L. Ed. 2d 583
(2004) (“If the law at that time did not clearly establish that the officer’s conduct
would violate the Constitution, the officer should not be subject to liability or, indeed,
even the burdens of litigation.”) (emphasis added); Brosseau, 543 U.S. at 198, 125
S. Ct. at 599 (“Because the focus is on whether the officer had fair notice that her
conduct was unlawful, reasonableness is judged against the backdrop of the law at the
time of the conduct.”) (emphasis added); see also Johnson v. Clifton, 74 F.3d 1087,
1093 (11th Cir. 1996) (“We know of no [preexisting] case which might have clearly
told Clifton that he could not take the disciplinary action indicated by an investigation
which was initiated before he even knew about the allegedly protected speech, and
in circumstances where the public concern implication was doubtful.”).
However, the Saucier framework was made non-mandatory by the Supreme
Court in Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818, 172 L. Ed. 2d
565 (2009), in which the Court concluded that, “while the sequence set forth [in
Saucier] is often appropriate, it should no longer be regarded as mandatory.” Thus,
“judges of the district courts and the courts of appeals should be permitted to exercise
their sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case
at hand.” Id.
Despite the Supreme Court’s modification of Saucier’s analytical process, the
substantive analysis remains unchanged; an officer is entitled to qualified immunity
protection as long as he “could have believed” his conduct was lawful. Hunter v.
Bryan, 502 U.S. 224, 227, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589 (1991).Therefore,
to deny immunity, a plaintiff must affirmatively demonstrate that “no reasonable
competent officer would have” acted as the public official did. Malley v. Briggs, 475
U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986).
“All evidentiary decisions are reviewed under an abuse-of-discretion standard.”
See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S. Ct. 512, 517, 139 L.
Ed. 2d 508 (1997). “An abuse of discretion can occur where the district court applies
the wrong law, follows the wrong procedure, bases its decision on clearly erroneous
facts, or commits a clear error in judgment.” United States v. Estelan, 156 F. App’x
185, 196 (11th Cir. 2005) (citing United States v. Brown, 415 F.3d 1257, 1266 (11th
Moreover, as the Eleventh Circuit has made clear, not every incorrect
evidentiary ruling constitutes reversible error:
Auto-Owners’ second argument is that it is entitled to a new trial
on the basis of what it describes as a number of erroneous evidentiary
rulings by the district court. Evidentiary rulings are also reviewed under
an abuse of discretion standard. Finch v. City of Vernon, 877 F.2d 1497,
1504 (11th Cir. 1989). Moreover, even if Auto-Owners can show that
certain errors were committed, the errors must have affected “substantial
rights” in order to provide the basis for a new trial. See Fed. R. Evid.
103(a). “Error in the admission or exclusion of evidence is harmless if
it does not affect the substantial rights of the parties.” Perry, 734 F.2d
at 1446. See also Allstate Insurance Co. v. James, 845 F.2d 315, 319
(11th Cir. 1988).
Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1515 (11th Cir. 1993). Therefore,
even the existence of many evidentiary errors does not guarantee the party appealing
a new trial. Instead, such erroneous rulings by a district court must “affect the
substantial rights of the parties” for reversible error to occur.
Mr. Billingsley’s Federal Claims Asserted Under Count One
Both in his complaint and in his opposition, Mr. Billingsley makes it clear that
he is pursing a “Fourth Amendment right to be free from unreasonable searches and
seizures” and that his excessive force claim springs from the injuries caused by
Officer Orr’s “use of force during th[is] unreasonable search and seizure.” (Doc. 22
at 8); (see also Doc. 1 at 3-4 ¶¶ 13-14 (describing Mr. Billingsley’s physical injuries
from use of force as flowing from Officer Orr’s violation of his “Fourth Amendment
rights against an unreasonable search and seizure”)). The Eleventh Circuit has
explained the distinction between the use of excessive force during the course of an
illegal stop as opposed to such a claim arising out of a legal detention by law
As their first theory, Plaintiffs assert that because there was no
basis for the stop and no governmental interest at stake, any use of force,
however minimal, was more than reasonably necessary and excessive.
Under this Circuit’s law, however, a claim that any force in an illegal
stop or arrest is excessive is subsumed in the illegal stop or arrest claim
and is not a discrete excessive force claim. See Williamson v. Mills, 65
F.3d 155, 158-59 (11th Cir. 1995) (holding that a claim that any force
during a false arrest is excessive is subsumed in the false arrest claim
itself because damages for false arrest include damages for use of force
to effect that false arrest). However, as outlined below, a claim for
excessive force during a legal stop or arrest is a discrete claim.
Williamson’s rule makes sense because if a stop or arrest is
illegal, then there is no basis for any threat or any use of force, and an
excessive force claim would always arise but only collaterally from the
illegal stop or arrest claim. The correct analysis is that the excessive
force claim is subsumed in the illegal stop or arrest claim, as recognized
in Williamson, where a plaintiff contends the force was excessive
because there was no basis for any force.
Jackson v. Sauls, 206 F.3d 1156, 1170-71 (11th Cir. 2000) (footnote omitted)
The Eleventh Circuit’s decision in Williamson (as reinforced by Jackson)
means that Mr. Billingsley’s excessive force claim is subsumed by his illegal seizure
one. Put differently, as shaped by his pleading and as reasserted in his briefing,5 Mr.
Billingsley has no pending independent claim for excessive force and summary
judgment in Officer Orr’s favor on any such purported discrete excessive force claim
is appropriate as foreclosed by Williamson. See Williamson, 65 F.3d at 159 (“Under
these circumstances, Williamson’s excessive force claim is subsumed in his false
arrest claim, and thus we find no reversible error in the district court’s grant of
summary judgment on the excessive force claim as a discrete claim.”).6 Consequently,
Undoubtedly, Mr. Billingsley could have included a separate count for Fourth Amendment
excessive force against Officer Orr on these facts, but, for whatever reason, he chose not to do so and
he is the master of his complaint. Moreover, the Eleventh Circuit has made it clear that it is
procedurally inappropriate for a party to attempt to amend a pleading in any critical manner by way
of briefing on summary judgment in the absence of that litigant also seeking leave to amend. See,
e.g., Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (“A plaintiff may
not amend her complaint through argument in a brief opposing summary judgment.” (citing
Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996))); Flintlock Const. Servs., LLC v.
Well-Come Holdings, LLC, 710 F.3d 1221, 1228 (11th Cir. 2013) (“This court’s precedent
foreclosed Well–Come’s attempt to amend its complaint at the summary judgment stage without
seeking leave of court pursuant to Rule 15(a)(2).”); Flintlock, 710 F.3d at 1227 (criticizing district
courts for practice of “ignor[ing] what the respective parties alleged in their complaint and answer
and to [instead] consider their claims and defenses as depicted in the memoranda they filed in
support of or in opposition to a motion for summary judgment”).
The district court in Williamson had actually analyzed the use of excessive force as an
independent claim. In affirming the entry of summary judgment on different grounds, the Eleventh
Circuit reasoned that the “damages recoverable on Williamson’s false arrest claim include damages
suffered because of the use of force in effecting the arrest.” 65 F.3d at 158 (citing Hamm v. Powell,
874 F.2d 766, 770 (11th Cir. 1989)).
the court now turns to an analysis of whether Mr. Billingsley’s only remaining federal
claim against Officer Orr for illegal search and seizure arising under the Fourth
Amendment is viable.7
Mr. Billingsley’s Illegal Search and Seizure Claim
Officer Orr did not violate Mr.
Billingsley’s Fourth Amendment rights in
executing a Terry stop.
Here, Officer Orr never formally placed Mr. Billingsley under arrest or charged
him with a crime. However, “[i]t is quite plain that the Fourth Amendment governs
‘seizures’ of the person which do not eventuate in a trip to the station house and
prosecution for crime—‘arrests’ in traditional terminology. It must be recognized that
whenever a police officer accosts an individual and restrains his freedom to walk
away, he has ‘seized’ that person.” Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868,
1877, 20 L. Ed. 2d 889 (1968).
Under the Supreme Court’s Terry decision, a different and less demanding
constitutional standard applies when evaluating the Fourth Amendment lawfulness
of an officer’s seizure of a person for questioning in the absence of having probable
The court acknowledges that Mr. Billingsley’s complaint makes a passing reference to his
federal due process rights in Count One. However, in his opposition brief he omits any discussion
of the Fifth Amendment and focuses exclusively upon his Fourth Amendment rights. Consequently,
to the extent his complaint contains any purported due process violation, Mr. Billingsley has
abandoned it. See collection of cases cited infra at 23-24.
cause to formally arrest him. As the Eleventh Circuit explained in United States v.
Powell, 222 F.3d 913, 916-17 (11th Cir. 2000):
Under Terry v. Ohio, 392 U.S. 1 (1968), in evaluating the
constitutionality of an investigatory stop, the court must examine
“whether the officer’s action was justified at its inception, and whether
it was reasonably related in scope to the circumstances which justified
the interference in the first place.” 392 U.S. at 20, 88 S. Ct. at 1879.
Under Terry, law enforcement officers may detain a person briefly for
an investigatory stop if they have a reasonable, articulable suspicion
based on objective facts that the person has engaged in, or is about to
engage in, criminal activity. The “reasonable suspicion” must be more
than an “inchoate and unparticularized suspicion or hunch.” The officer
must have “some minimal level of objective justification” taken from the
totality of the circumstances.
Powell, 222 F.3d at 917 (parallel references and some internal citations omitted).
In upholding the constitutionality of the Terry stop in Powell, the Eleventh
Circuit drew from the Supreme Court’s decision in Illinois v. Wardlow, 528 U.S. 119,
120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). There, the Supreme Court explained that
an evaluation of the reasonable articulable suspicion standard requires a common
In reviewing the propriety of an officer’s conduct, courts do not have
available empirical studies dealing with inferences drawn from
suspicious behavior, and we cannot reasonably demand scientific
certainty from judges or law enforcement officers where none exists.
Thus, the determination of reasonable suspicion must be based on
commonsense judgments and inferences about human behavior.
Wardlow, 528 U.S. at 124-25, 120 S. Ct. at 676 (citing United States v. Cortez, 449
U.S. 411, 418, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621 (1981)). Therefore, the key
constitutional question is whether, under the facts in the light most favorable to Mr.
Billingsley, Officer Orr had a reasonable articulable suspicion to stop him.
The court concludes that, even based on Mr. Billingsley’s version of the facts,
the lesser constitutional standard of reasonable articulable suspicion existed for
Officer Orr to make a Terry stop. These fluid circumstances include Mr. Pointer’s
jumping into Mr. Billingsley’s car in an effort to further elude his arrest after a
dangerous vehicle chase which reasonably triggered the need for law enforcement to
stop Mr. Billingsley and verify whether he was possibly an accomplice of Mr.
Alternatively, qualified immunity
protects Officer Orr from any personal
liability for an unconstitutional Terry stop
of Mr. Billingsley.
Alternatively, the court finds that even if Officer Orr lacked a reasonable
suspicion to stop Mr. Billingsley, he is still entitled to prevail on his qualified
immunity defense. This is the case because, at minimum, he had an “arguable”
reasonable suspicion to make the stop. See Williamson, 65 F.3d at 157 (holding that
when an officer asserts qualified immunity, the issue is not whether reasonable
suspicion existed in fact, but whether officer had arguable reasonable suspicion to
support an investigatory stop); see also Jackson, 206 F.3d at 1165-66 (“A law
enforcement official who reasonably but mistakenly concludes that reasonable
suspicion is present is still entitled to qualified immunity.”) (emphasis added).
Given this arguable reasonable suspicion framework, the court finds that Mr.
Billingsley has not carried his burden of demonstrating that Officer Orr had fair and
clear warning that his stopping and seizing Mr. Billingsley for questioning at the
scene after Mr. Pointer, a fleeing suspect, had jumped into Mr. Billingsley’s car,
violated clearly established Fourth Amendment law.8 See Santamorena v. Georgia
Military College, 147 F.3d 1337, 1340 (11th Cir. 1998) (“To overcome this
immunity, Plaintiff has the burden of pointing to case law which ‘pre-date[s] the
offic[ial]’s alleged improper conduct, involve[s] materially similar facts, and ‘truly
compel[s]’ the conclusion that the plaintiff had a right under federal law.’” (quoting
Ensley v. Soper, 142 F.3d 1402, 1406 (11th Cir. 1998))).
As it concerns Mr. Billingsley’s briefing more particularly, he does not contend
much less attempt to show that Officer Orr’s conduct in executing a Terry stop meets
that narrow category of obvious clarity cases due to its flagrant egregiousness. See
Santamorena, 147 F.3d at 1340 n.6 (“[T]hese exceptional cases rarely arise.”)
Mr. Billingsley is the party who bears the burden on this qualified immunity issue as
Officer Orr was undoubtedly cloaked with discretionary authority in making the Terry stop as
explained in n.3, supra.
(emphasis added); cf. Rodriguez v. Farrell, 280 F.3d 1341, 1350 n.18 (11th Cir. 2002)
(“We very occasionally encounter the exceptional case in which a defendant officer’s
acts are so egregious that preexisting, fact-specific precedent was not necessary to
give clear warning to every reasonable . . . officer that what the defendant officer was
doing must be ‘unreasonable’ within the meaning of the Fourth Amendment.”)
As for those authorities he does reference, Mr. Billingsley’s opposition focuses
unhelpfully upon inapposite civil rights decisions in which either an excessive force
claim was squarely alleged separately from the wrongful detention or arrest count or
in which the plaintiff did not contest the legality of the stop or arrest. See, e.g.,
Graham v. Connor, 490 U.S. 386, 388, 109 S. Ct. 1865, 1868, 104 L. Ed. 2d 443
(1989) (“In this action under 42 U.S.C. § 1983, petitioner Dethorne Graham seeks to
recover damages for injuries allegedly sustained when law enforcement officers used
physical force against him during the course of an investigatory stop.”); Lee v.
Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002) (“After thorough review, we conclude
that Ferraro is entitled to qualified immunity on Lee’s wrongful arrest claim, but hold
that the police officer is plainly not entitled to qualified immunity on the excessive
force claim.”); Bell v. City of York, No. 7:09–CV–0694–SLB, 2013 WL 1352022, at
*20, *22 (N.D. Ala. Mar. 29, 2013) (analyzing federal unlawful arrest and excessive
force claims as separately pleaded counts); Warren v. City of Birmingham, No. 2:09CV-1025-JHE, 2013 WL 3994532, at *4 (N.D. Ala. July 31, 2013) (summarizing
remaining counts of civil rights complaint, including a discrete one for excessive
force); S.S. ex rel. Montgomery v. Bolton, 522 F. App’x 452, 455 n.4 (11th Cir. 2013)
(“The search and seizure and excessive force claims are separate, and Bolton in
entitled to qualified immunity on the search and seizure claim exclusive of the
excessive force claim.”); Bolton, 522 F. App’x at 453 (listing counts of civil rights
complaint, including a discrete one for excessive force).
However, as explained above, Mr. Billingsley’s lawsuit does not involve a
discrete excessive force claim, but, instead, as driven by the Eleventh Circuit’s
binding opinion in Williamson, only a derivative, damages-related one. Further, none
of the cases cited by him establishes that Officer Orr acted in violation of clearly
established law in stopping and detaining Mr. Billingsley at the scene for questioning.
Consequently, for all these reasons, qualified immunity protects Officer Orr from any
individual liability relating to Mr. Billingsley’s federal search and seizure claim (and,
therefore, also his dependent claim of damages tied to Officer Orr’s use of excessive
force during that seizure), and the Motion is GRANTED as to Count One of Mr.
Mr. Billingsley’s State Law Claims
Count Two–Assault and Battery
The court reaches a different conclusion concerning Mr. Billingsley’s assault
and battery claim arising under Alabama law. Officer Orr’s sole defense to this count
is premised upon state agent immunity.9 The court rejects this affirmative defense
based upon the same persuasive reasoning employed by the unpublished Eleventh
Circuit panel in Bolton.
Regarding S.S.’s assault and battery claim, Bolton contends he is
entitled to state agent immunity under Alabama Code § 6–5–338 (1975).
A state agent is not immune from civil liability, “when the State agent
acts willfully, maliciously, fraudulently, in bad faith, beyond his or her
authority, or under a mistaken interpretation of the law.” Ex parte
Cranman, 792 So.2d 392, 405 (Ala. 2000). S.S.’s version of the facts
supports that Bolton acted willfully in hitting him in the head with a
gun, while he was not resisting arrest. Bolton merely quibbles with
S.S.’s view of the facts, rather than showing that state agent immunity
would apply even if we view S.S.’s facts as true. Therefore, the district
court did not err in denying state agent immunity to Bolton on S.S.’s
assault and battery claim.
522 F. App’x at 454-55 (emphasis added).
Comparable to the defendant in Bolton, Officer Orr ineffectively “quibbles”
with Mr. Billingsley’s version of the facts and does not demonstrate how state agent
Officer Orr references “Ala. Code 1975 § 6-5-638” as a separate police immunity defense
to Mr. Billingsley’s assault and battery claim. (Doc. 21 at 22). The court has not been able to find
such a statutory section and believes that this is probably just an incorrect citation to § 6-5338–Alabama’s state agent immunity statute–the application of which is discussed below.
immunity should apply to him given a view of the record in a light most favorable to
Mr. Billingsley–he was not resisting Officer Orr’s commands and, nonetheless,
Officer Orr struck him several times causing his nose to bleed, deviating his septum,
and resulting in him having to undergo nose surgery. Instead, Officer Orr implores
this court to find Mr. Billingsley and his sworn testimony to be incredible as a matter
of law due to what Officer Orr deems to be an absence of sufficient corroborating
evidence coupled with a plethora of seemingly contradictory proof. (See, e.g., Doc.
24 at 6 (“The Defendant urges that the only evidence produced by the Plaintiff that
he was complying with the instructions given by the Defendant to get down on the
ground is the testimony of the Plaintiff, testimony that is contradicted by the affidavit
of testimony of James Pointer and Lee Green, both Plaintiff’s witnesses.”)). However
credibility determinations are exclusively the jury’s province and nothing offered by
Officer Orr convinces this court to accept his invitation to invade it on summary
judgment. See, e.g., United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997)
(“It is well established that “[c]redibility determinations are the exclusive province
of the jury.” (quoting United States v. Parrado, 911 F.2d 1567, 1571 (11th Cir. 1990),
cert. denied, 498 U.S. 1104, 111 S. Ct. 1005, 112 L. Ed.2d 1088 (1991))).
Officer Orr also fails to address the substance of the Bolton decision in his
reply, even though: (1) he has a separate section within his reply brief entitled
“Cases Cited by Plaintiff” (Doc. 24 at 11-12); and (2) Bolton is a critical case upon
which Mr. Billingsley relies in his opposition to this (Doc. 22 at 27-29) and other
summary judgment issues. Under such circumstances, Officer Orr has not carried his
burden on summary judgment concerning his state agent immunity defense to Count
Two, and that portion of his Motion is DENIED.
Count Three–False Imprisonment
The Motion does not ever separately address the merits of or discuss any
affirmative defense to Mr. Billingsley’s false imprisonment claim. (See Doc. 22 at 27
(“Defendant argues that summary judgment should be granted in his favor on Count
II and Count IV of Plaintiff’s Complaint.”)). Nonetheless, the Motion purports to seek
summary judgment on Mr. Billingsley’s entire case. Accordingly, to the extent that
Officer Orr demands a dismissal of Count Three, the Motion is DENIED.
Count Four–Tort of Outrage
As the Bolton panel explained in affirming the district court on its dismissal of
the plaintiff’s outrage claim under a very comparable fact scenario:
For the tort of outrage under Alabama law, a plaintiff must
establish the defendant’s conduct “(1) was intentional or reckless; (2)
was extreme and outrageous; and (3) caused emotional distress so severe
that no reasonable person could be expected to endure it.” Harrelson v.
R.J., 882 So. 2d 317, 322 (Ala. 2003). From our review of the record,
S.S. failed to provide evidence through testimony or medical records of
“emotional distress so severe that no reasonable person could be
expected to endure it.” Thus, there is no genuine issue of material fact,
and the district court erred in failing to grant Bolton summary judgment
on this claim.
Bolton, 522 F. App’x at 455-56. Persuaded by Bolton as well as those cases cited by
Officer Orr (Doc. 21 at 25-27), the court concludes that no reasonable jury could
return a verdict in favor of Mr. Billingsley on the tort of outrage even if all of the
facts favorable to him were believed by the jurors to be true.
Moreover, Mr. Billingsley offers no challenge to the dismissal of his outrage
claim within his opposition brief. (See Doc. 22 at 27-30 (limiting discussion within
brief’s state law section to his assault and battery claim)). Consequently, Mr.
Billingsley has waived his right to pursue tort of outrage as he has offered nothing to
substantiate its validity. See, e.g., Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322
(11th Cir. 2001) (finding claim abandoned when argument not presented in initial
response to motion for summary judgment); Bute v. Schuller International, Inc., 998
F. Supp. 1473, 1477 (N.D. Ga. 1998) (finding unaddressed claim abandoned); see
also Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d
1301, 1326 (11th Cir. 2000) (failure to brief and argue issue at the district court is
sufficient to find the issue has been abandoned); Resolution Trust Corp. v. Dunmar
Corp., 43 F.3d 587, 599 (11th Cir. 1995); Hudson v. Norfolk Southern Ry. Co., 209
F. Supp. 2d 1301, 1324 (N.D. Ga. 2001); cf. McMaster v. United States, 177 F.3d
936, 940-41 (11th Cir. 1999) (claim may be considered abandoned when district court
is presented with no argument concerning a claim included in the plaintiff’s
complaint); Road Sprinkler Fitters Local Union No. 669 v. Independent Sprinkler
Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (concluding that a district court “could
properly treat as abandoned a claim alleged in the complaint but not even raised as
a ground for summary judgment”).
Thus, consistent with the above reasoning, the Motion is GRANTED on Count
Four of Mr. Billingsley’s complaint.
Officer Orr’s Evidentiary Objection
Buried within Officer Orr’s reply is an objection to some of the evidence upon
which Mr. Billingsley relies in opposition to the Motion. (Doc. 24 at 1-2). More
specifically, Officer Orr contends that this court should disregard the affidavit of
eyewitness, Lazreth Tywman, when evaluating the merits of the Motion. Id. This
objection should have been presented to the court in the form of a motion so that the
issue could be fully briefed by the parties consistent with the requirements of
Appendix III to the Uniform Initial Order (Doc. 4) entered on July 19, 2013.
Instead, all the court has unhelpfully before it is one party’s position.
Consequently, the objection is OVERRULED as procedurally defective. Cf.
Robinson v. Section 23 Property Owner’s Ass’n, No. 2:12–CV–675–FtM–29CM,
2014 WL 2215757, at *1 n.1 (M.D. Fla. May 28, 2014) (“Any requests for relief
buried in responses to motions or not otherwise properly before the Court may be
Alternatively, the objection is TERMED as MOOT. More specifically, even
when disregarding the challenged evidence and the dispute over whether Officer Orr
hit a compliant and non-aggressive Mr. Billingsley with his gun or his fist, the court’s
rulings on the Motion remain unchanged as they are all sufficiently substantiated by
other parts of the record, including Mr. Billingsley’s deposition testimony.
The Motion is GRANTED as to Counts One and Four only and is otherwise
DENIED. Further, Officer Orr’s evidentiary objection is DENIED. Alternatively, the
evidentiary issue is TERMED as MOOT. Finally, by separate order, the court will
set this case for a final pretrial conference.
DONE and ORDERED this 13th day of January, 2015.
VIRGINIA EMERSON HOPKINS
United States District Judge
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