Ray et al v. Calhoun County et al

Filing 40

MEMORANDUM OPINION AND ORDER GRANTING 25 MOTION to Dismiss Second Amended Complaint as set out herein, GRANTING 27 MOTION to Dismiss Second Amended Complaint as set out herein, GRANTING 29 MOTION to Dismiss Second Amended Complaint as set out herein, GRANTING 38 MOTION to Withdraw as Attorney, Attorney Alex R Hirschfield terminated. Signed by Judge Virginia Emerson Hopkins on 10/13/2017. (JLC)

FILED
2017 Oct-13 PM 04:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
GLEN EDWARD RAY, JR. et al.,
Plaintiffs,
v.
CALHOUN COUNTY, et al.,
Defendants.

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Case No.: 1:13-cv-1860-VEH

MEMORANDUM OPINION AND ORDER
I.

Relevant Procedural History
This case alleging various Alabama state law claims was filed on May 18,

2013, in the Calhoun County, Alabama, Circuit Court, sub nom. Glen Edward
Ray, Jr. and Glen Edward Ray, Sr. v. Calhoun County, et al., Case No. CV-2013900309. (Notice of Removal, Doc. 1; Complaint, Doc. 1-1). On September 27,
2013, Plaintiffs filed an Amended Complaint adding claims under the Fourth
Amendment to the United States Constitution brought against Defendants as state
actors under 42 U.S.C. § 1983. (Doc. 1; Amended Complaint, Doc. 1-1). The
Defendants timely removed this action to this Court on October 7, 2013. On
February 12, 2014, Plaintiffs filed a Second Amended Complaint (Doc. 24), which
1

became the operative document upon its filing.
The Defendants filed various motions to dismiss the Second Amended
Complaint and supporting briefs. (Docs. 25-26, 27-28, and 29-30). The Plaintiffs
opposed the motions by a consolidated response. (Doc. 32). On March 28, 2014,
the Defendants replied with a consolidated reply. (Doc. 33). More than three years
later, on June 5, 2017, this action was reassigned to newly-appointed Magistrate
Judge Herman N. Johnson, Jr. (Notice of Reassignment, Doc. 34). Promptly
thereafter, on June 30, 2017, Judge Johnson issued a Report and Recommendation,
recommending that each of the motions be granted and this case dismissed with
prejudice. (R&R, Doc. 35). In the R&R, Judge Johnson specifically advised the
Plaintiffs that written objections were due within fourteen days from the date of
the R&R, the requirements for such objections, and the consequences of failing to
object. (Id. at 26-27).
On June 30, 2017, counsel for the Plaintiffs filed a motion to withdraw.
(Doc. 38).1 That Motion is hereby GRANTED.
On July 31, 2017, this case was reassigned to the undersigned United States
District Judge. (Notice of Reassignment, Doc. 37).
1

Although the Plaintiffs have been represented by different attorneys at different stages
of this case, all pleadings up through the date of the R&R were filed by counsel representing
them.

2

Although Plaintiffs’ counsel failed to file any objections to the R&R, one of
the two Plaintiffs (Glenn Edward Ray, Jr.) has filed objections. (Objections, Doc.
36, filed July 13, 2017). Glenn Edward Ray, Jr. is not an attorney. Accordingly,
the Court has reviewed his objections under the more lenient lens applicable to pro
se filings. However, the Court notes that he cannot assert (nor does he seem to
assert) objections on behalf of claims made by the other Plaintiff, Glenn Edward
Ray, Sr.2
Further, the Court has carefully reviewed the R&R and the entire file in this
case and determines that the Magistrate Judge properly recommended that all of
Ray, Sr.’s claims be dismissed with prejudice. The Court adopts such
recommendations and will, by separate order, GRANT each motion to the extent
directed to claims of Ray, Sr., and will DISMISS WITH PREJUDICE all claims
of Ray, Sr. as to all Defendants.
The Court now turns to the R&R as it relates to the claims of Ray, Jr., as
objected to by him, and to the pending motions to dismiss as they relate to the
claims of Ray, Jr.
II.

Standard of Review

2

The Court will hereinafter refer to Glenn Edward Ray, Jr. as “Ray, Jr.” and to Glenn
Edward Ray, Sr. as “Ray, Sr.”

3

A district court judge is empowered, in part to encourage efficiency, to
designate a magistrate judge to conduct hearings and submit proposed findings of
fact and recommendations. 28 U.S.C. § 636(b)(1)(B); Mathews v. Weber, 423 U.S.
261, 267–68, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976); Nettles v. Wainwright, 677
F.2d 404, 406 (5th Cir.1982).3 Parties to a dispute upon which a Report and
Recommendation has been made are invited to file objections to that Report and
Recommendation. 28 U.S.C. § 636(b)(1) (“Within fourteen days after being served
with a copy, any party may serve and file written objections to such proposed
findings and recommendations as provided by rules of court.”). Under this system,
when a party makes a timely and specific objection to a portion of the Report and
Recommendation, the district court is obliged to engage in a de novo review of the
issues raised on objection. Id. (“A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.”); United States v. Raddatz, 447
U.S. 667, 674, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Nettles, 677 F.2d at 409.
However, issues upon which no timely and specific objections are raised do not

3

The Eleventh Circuit has adopted as binding precedent all Fifth Circuit decisions issued
before October 1, 1981, as well as all decisions issued after that date by the Unit B panel of the
former Fifth Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir.1982); see also
United States v. Schultz, 565 F.3d 1353, 1361 n. 4 (11th Cir.2009) (discussing continuing validity
of Nettles).

4

require de novo review; the district court may therefore “accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate
judge[,]” applying a clearly erroneous standard.4 28 U.S.C. § 636(b)(1); Macort v.
Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir.2006).5 Nettles, 677 F.2d at 409
(“[T]he failure of a party to file written objections to proposed findings and
recommendations in a magistrate's report ... shall bar the party from a de novo
determination by the district judge of an issue covered in the report.”). Thus, to
accept the report and recommendation of a magistrate judge to which no timely
and specific objection has been made, the district judge need only be satisfied that
there is no clear error apparent on the face of the record.
Whether or not proper — or, indeed, any — objections have been filed, the
4

Although a district judge is not required to review an R&R de novo if no objections are
filed, the district court is not precluded from reviewing an R&R “sua sponte or at the request of a
party, under a de novo or any other standard.” Thomas v. Arn, 474 U.S. 140, 154, 106 S.Ct. 466,
88 L.Ed.2d 435 (1985) (observing that a “district judge has jurisdiction over the case at all times”
and “retains full authority to decide whether to refer a case to the magistrate, to review the
magistrate's report, and to enter judgment”).
5

Macort addressed only the standard of review applied to a magistrate judge's factual
findings; however, the Supreme Court has held that there is no reason for the district court to
apply a different standard of review to a magistrate judge's legal conclusions. Thomas v. Arn, 474
U.S. 140, 150, 106 S.Ct. 466. Thus, district courts in this circuit have routinely applied a
clear-error standard to both. See Tauber v. Barnhart, 438 F.Supp.2d 1366, 1373–74
(N.D.Ga.2006) (collecting cases). By contrast, the standard of review on appeal distinguishes
between the factual findings and legal conclusions. See Monroe v. Thigpen, 932 F.2d 1437, 1440
11th Cir.1991) (when magistrate judge's findings of fact are adopted by district court without
objection, they are reviewed on appeal under plain-error standard, but questions of law remain
subject to de novo review).

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district judge may, after review, accept, reject, or modify any of the magistrate
judge's findings or recommendations. 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b).
The district judge may also receive further evidence or recommit the matter to the
magistrate judge with instructions. 28 U.S.C. § 636(b)(1)(C).
III.

Objections
Ray, Jr.’s objections are set out in full below, without change or annotation.
Under 28 U.S.C. § 636(b)(1)(C) and Rule 72.3(b) of the Rules of this
Court, Plaintiffs respectfully submit the following objections to certain of
the Magistrate Judge's Report and Recommendation, issued on June 30,
2017.:
1.

The Plaintiff recognizes and acknowledges that the Calhoun County
Commission and Calhoun County are protected by sovereign
immunity.

2.

The Plaintiff recognizes and acknowledges the two year statute of
limitation would ban all claims arising out of the November 24, 2009
incident but for the fact that the underlying lawsuit filed in Calhoun
County would toll the statute of limitations.

3.

The Plaintiff s claim, referred to as Defendants' claims in the
Magistrate's recommendations, for violation of 42 U.S.C. § 1983
claim for a Fourth Amendment.
a.

Unlawful search and seizure violation should still stand against
defendant Amerson in his individual capacity should survive.
The Plaintiffs allege that there was no probable cause for the
search, seizure, and subsequent arrest of the Plaintiff Ray Jr.

b.

The current probable cause standard is “where reasonable
officers in the same circumstances and possessing the same
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knowledge as the Defendant could have believed that probable
cause to arrest existed.” Anderson v. Creighton, 483 U.S. 635,
641 (1987). While the Defendant did obtain a search warrant,
the plaintiff alleges that is was done so under false pretenses.
This is based on officer Carter Allen’s direct statements to the
Plaintiff Ray Jr.
4.

Count Three — Inadequate Training and Supervision and Failure to
Train:
a.

The plaintiff asserts that the Defendant Amerson had a duty to
supervise and train Carter Allen and all other named
Defendants.

b.

The Plaintiffs [sic] allege that Amerson knew or should have
known about the discriminatory practices of the Defendant
Officers. As the Plaintiff’s cause of actions based on the 2009
incident have been dismissed, any investigations surrounding
the 23009 incident indicate that Amerson had notice of the
Defendant Officer’s discriminatory practices.

(Doc. 36 at 1-2).
IV.

Analysis
A.

Dismissal of Claims Against Calhoun County and the Calhoun
County Commission.

Ray, Jr. has “recognize[d] and acknowledge[d] that his claims against “the
county entities” (Calhoun County and the Calhoun County Commission) are due
to be dismissed on the basis of sovereign immunity. (Doc. 36 at 1, ¶ 1.). The Court
finds that the Magistrate Judge, without using the words “sovereign immunity”,
correctly explained that, under Alabama law, neither Calhoun County nor the
7

Calhoun County Commission can be held “liable for any action resulting from the
hiring, training, or supervising of sheriff’s office personnel” (Doc. 35 at 6) as
neither of them has any authority over sheriff’s office personnel. Rather, a sheriff
and his deputies “function as state executive officers in the execution of their law
enforcement duties.” (Id. at 7). Further, neither of those defendants is a “person”
and therefore is not subject to actions brought pursuant to § 1983.6 Similarly, the
Magistrate Judge correctly noted that the Second Amended Complaint contains no
claims against the Calhoun County Sheriff’s Office or the Calhoun County Drug
Task Force7, although they had been named as defendants in plaintiffs’ original
Complaint and First Amended Complaint. Accordingly, this Court finds that all
claims against either of them (in the original Complaint or the First Amended
Complaint) have been abandoned and those parties are due to be DISMISSED
WITH PREJUDICE on that basis. Further, as the Magistrate Judge also correctly
noted, even if the claims previously asserted against the Calhoun County Sheriff’s
Office and the Calhoun County Drug Task Force had not been abandoned, any

6

In order to bring a viable § 1983 suit, the defendant sued must be an entity that is
subject to being sued. Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992). The capacity of a
party to be sued is "determined by the law of the state in which the district court is held." Id. at
1214.
7

See Doc. 35, p. 2, fn.2.

8

claims against them pursuant to § 1983 would be due to be dismissed on the basis
that neither of them is a legal entity subject to suit or liability under § 1983. See
Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (county sheriff’s
department not legal entity subject to suit or liability under § 1983); Edwards v.
Florala, Ala. Police Dep’t, 2006 WL 1476038, at *1 (M.D.Ala. May 25, 2006)
(drug task force not legal entity subject to suit or liability under § 1983).
For the reasons set out above, the Court hereby ACCEPTS the Magistrate
Judge’s recommendation that all claims (including both those based on federal law
and those arising under state law) against Calhoun County, the Calhoun County
Commission, the Calhoun County Sheriff’s Office and the Calhoun County Drug
Task Force be DISMISSED WITH PREJUDICE. The Motion To Dismiss filed
by the Calhoun County and the Calhoun County Commission (Doc. 25) will be
GRANTED as to all counts. The defendants remaining after such dismissal are:
(Sheriff) Larry Amerson, (Deputy Sheriff) Carter Allen, and (Deputy Sheriff)
Mike Willis.
B.

All Official Capacity Claims Are Due To Be Dismissed.

As the Magistrate Judge also correctly analyzed, all of Ray, Jr.’s claims
asserted under federal law assert violations by Sheriff Amerson, Deputy Allen, and
Deputy Willis, all of whom are “officers of the Government”, of the Fourth
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Amendment’s prohibition of unreasonable searches and seizures by persons acting
under color of law. (Doc. 35 at 8 - 12). Ray, Jr., does not dispute this
characterization/analysis. As the Magistrate Judge further correctly analyzed, none
of these individuals can be sued in their official capacities for these alleged
Constitutional violations as they all function as state executive officers in the
execution of their law enforcement duties. As such, an official capacity claim
against any of them is a claim against the State of Alabama, and “‘ neither a State
nor its officials acting in their official capacities are ‘persons’ under § 1983.’”
(Doc. 35 at 12) (citation omitted). Accordingly, to the extent that the motions
(Docs. 27 (Amerson) and 29 (Allen and Willis)) seek dismissal of any federal
claims against these defendants in their official capacities, the motions will be
GRANTED. Ray, Jr.’s federal claims (Counts One and Three) against Amerson,
Allen, and Willis, in their official capacities will be DISMISSED WITH
PREJUDICE.
C.

Application of the Statute of Limitations to Ray, Jr.’s Federal Claims.

The Magistrate Judge properly applied Alabama’s two year statute of
limitations to Ray, Jr.’s § 1983 claims. (Doc. 35 at 14). As to Ray, Jr.’s November
24, 2009, arrest (as to which he bonded out that same day), the Magistrate Judge
found that all of Ray, Jr.’s federal claims were time-barred, because he did not file
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suit until May 18, 2013. (Id. at 15). Ray, Jr. asserts that “the two year statute of
limitations would ban all claims arising out of the November 24, 2009 incident but
for the fact that the underlying lawsuit filed in Calhoun County would toll the
statute of limitations.” (Doc. 36 at 1, ¶2).
Ray, Jr.’s federal claims set out in Count One of the Second Amended
Complaint assert claims for “unlawful search and seizure, false arrest, false
imprisonment, malicious prosecution[,] and unlawful search of home.” (Doc. 35 at
1). Remembering that Ray, Jr. is acting pro se in asserting his Objections,8 the
Court construes his reference to “the underlying lawsuit filed in Calhoun County”
to be a reference to the criminal proceedings against Ray, Jr. for which he was
arrested in November 24, 2009, but which proceedings were nolle prossed on May
19, 2011. (Doc. 35 at 3).
The Magistrate Judge correctly found that Ray, Jr.’s federal claims for false
arrest and false imprisonment arising out of his November 24, 2009, arrest and for
unlawful search (on November 18, 2009) of his residence are time-barred. The
Magistrate Judge also correctly found that Ray, Jr.’s federal malicious prosecution
claims arising out of both his 2009 and his 2011 arrests were timely. See Doc. 35

8

Although Ray, Jr. was represented by counsel at all times prior to the filing of his
objections.

11

at 13-14 (analyzing claims based on search of home), 14-15 (analyzing claims
based on November 24, 2009 arrest), and 19 (analyzing accrual of malicious
prosecution claims and finding them timely). He further correctly found that Ray,
Jr.’s federal claims for false arrest and false imprisonment arising out of his
August 10, 2011 arrest (he again bonded out on the date of his arrest) were not
time-barred. (Id. at 15-16).
Accordingly, to the extent that the motions (Docs. 27 (Amerson) and 29
(Allen and Willis)) seek to have the Court dismiss as time-barred any federal
claims for false arrest and false imprisonment arising out of Ray, Jr.’s November
24, 2009 arrest, and for unlawful search (on November 18, 2009) of his residence,
such motions are due to be GRANTED and those claims will be DISMISSED
WITH PREJUDICE. However, to the extent that those motions seek to have the
Court dismiss as time-barred Ray, Jr.’s federal malicious prosecution claims
arising out of either his 2009 arrest or his 2011 arrest, or his federal claims for
false arrest and false imprisonment arising out of his August 10, 2011, arrest, the
motions are due to be DENIED.
D.

Qualified Immunity.

The Magistrate Judge also correctly determined that Amerson’s Motion To
Dismiss was due to be granted and Ray, Jr.’s federal claims against Amerson set
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out in Count Three of the Second Amended Complaint be dismissed. (Doc. 35 at
22-25). This Court concurs that Ray, Jr. has failed to allege more than conclusory
statements in support of this claim. Further, the Court finds that Ray, Jr.’s federal
claims against Amerson in his official capacity as set out in Count One of the
Second Amended Complaint are also due to be (and accordingly will be)
DISMISSED WITH PREJUDICE for the same reason (qualified immunity). The
Court further finds that Ray, Jr.’s federal claims against Carter and Willis in their
respective official capacities as set out in Counts One and Three of the Second
Amended Complaint are also due to be (and accordingly will be) DISMISSED
WITH PREJUDICE for the same reason (qualified immunity).
In sum, although the facts alleged in the Second Amended Complaint
establish that Amerson (and Carter and Willis) was (were) acting at all times
within his (their) discretionary authority, Ray, Jr. has failed to aver facts necessary
to call into question Amerson’s (or Carter’s or Willis’s) qualified immunity.
Accordingly, their respective motions (Docs. 27 (Amerson) and 29 (Allen and
Willis)) will be GRANTED as to these claims. Counts One and Three will be
DISMISSED WITH PREJUDICE as to Amerson, Carter, and Willis in their
respective official capacities on the basis of qualified immunity and FED. R. CIV.
P. 12(b)(6).
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E.

Federal Malicious Prosecution Claim.

The Magistrate Judge correctly noted that the Fourth Amendment’s
prohibition of unreasonable seizures includes “a federal ‘right’ to be free from
malicious prosecution” (Doc. 35 at 11-12)(quoting Whiting v. Traylor, 85 F.3d
581, 584 n.4 (11th Cir. 1996). The Magistrate Judge also correctly set out the
elements of a federal malicious prosecution claim under § 1983 and under
Alabama law. (Id. at 19-20). As pointed out in the R&R (id. at 20), a grand jury
indicted Ray, Jr. on a charge of trafficking cocaine. Ray, Jr. has wholly failed to
allege that “a deliberate and malicious fraud was perpetrated on the grand jury to
induce them to indict” him on that charge. (Id.). Nor has he alleged any facts to
support his conclusory allegation “that defendants lacked probable cause to arrest
and prosecute him on cocaine trafficking charges” or that they engaged in
obstruction of justice. (Id.) Accordingly, the court will GRANT the Motions To
Dismiss Ray, Jr.’s federal malicious prosecution claim. That claim will be
DISMISSED WITH PREJUDICE.
F.

Federal and State Abuse of Process Claims.

The Magistrate Judge did not separately address Ray, Jr.’s federal abuse of
process claim. However, he did correctly recommend dismissal of all of Ray, Jr.’s
federal claims to the extent asserted against Amerson, Allen, and Willis in their
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official capacities as barred by sovereign immunity and, to the extent asserted
against these defendants in their individual capacities, as barred by qualified
immunity. As stated above, this Court concurs.
Additionally, this Court finds that Ray, Jr. has wholly failed to allege facts
to support such a claim under federal or state law.
“The elements of the tort of abuse of process are 1) the existence of an
ulterior purpose, 2) a wrongful use of process, and 3) malice.” C.C. & J., Inc. v.
Hagood, 711 So. 2d 947, 950 (Ala. 1998) (citing Triple J Cattle, Inc. v. Chambers,
621 So. 2d 1221, 1225 (Ala. 1993)). As Hagood points out, abuse of process is a
separate claim from malicious prosecution: “Malicious prosecution concerns the
wrongful issuance of process; abuse of process concerns the wrongful use of
process after it has been issued.” 711 So. 2d at 950 (emphasis in original).
The Eleventh Circuit has further clarified the scope of an actionable abuse
of process claim:
A review of Alabama law and the law of this court mandates
our affirmance of the district court’s ruling on appellees’
counterclaim[] for abuse of process . . . . As Judge Tuttle stated in
Ancora Corporation v. Stein [445 F.2d 431, 433 (5th Cir. 1971)]:
We are not convinced that the counterclaim sets out a clear
case of abuse of process, as recognized under the Alabama decisions.
These cases seem to hold that for such an action to be sustained, the
complaint must allege that the action causing damages to the plaintiff
15

must allege that a suit had been legally filed for a proper purpose, but
that, once filed, the process of the court, such as a writ of attachment
or the like, had been improperly used. In other words, the Alabama
courts appear not to have recognized, as the basis of an abuse of
process suit an allegation that the suit was originated out of an
improper motive and solely for the purpose of harassment of the
complaining party.
Because no special process was improperly issued in the instant case,
we agree with the district court that there is no basis for an abuse of
process claim.
Ramsey v. Leath, 706 F.2d 1166, 1170 (11th Cir. 1983) (emphasis added). Thus,
under Ramsey and Ancora, Ray, Jr. has failed to allege any cognizable abuse of
process claim (under federal or state law) because he complains only about the
initiation of criminal charges against him, and does not mention any subsequent
“special process [that] was improperly issued[.]” Ramsey, 706 F.2d at 1170.
Accordingly, the Court finds that the motions to dismiss are due to be
GRANTED as to Ray, Jr.’s abuse of process claims. Accordingly, such claims will
be DISMISSED WITH PREJUDICE.
G.

The Defendants Have State Agent Immunity.

Ray, Jr. asserts state law claims in Counts Two (Outrage), Four
(Conversion), Five (Trespass to Chattels), Five (Tresspass [sic])9, Six (Intentional

9

There are two separate counts bearing the number “Five” in the Second Amended
Complaint.

16

Infliction of Emotional Distress), Seven (Deliberate indifference), and Eight
(Abuse of Process). Having granted the Motions To Dismiss filed by Calhoun
County and the Calhoun County Commission as to all claims (and having found
all claims against the Calhoun County Sheriff’s Office and the Calhoun County
Task Force to have been abandoned), the Court now turns to Ray, Jr.’s objections
to the Magistrate Judge’s recommendations as to these claims as asserted against
Amerson, Carter, and Willis.
As the Magistrate Judge correctly analyzed, because all of the factual
allegations in the Second Amended Complaint are that Amerson, Carter, and
Willis all were acting within the line and scope of their employment as Sheriff or
as Deputy Sheriffs, they are entitled to absolute immunity as to these state law
claims. (Doc. 35 at 25-26). Accordingly, the motions to dismiss filed by these
defendants will be GRANTED as to all of these claims. All of Ray, Jr.’s state law
claims against Amerson, Carter, and Willis will be DISMISSED WITH
PREJUDICE.
V.

Conclusion
For the reasons set out above, the motions to dismiss the Second Amended

Complaint (Docs. 25, 27, and 29) are due to be GRANTED as to all of Plaintiffs’
claims against all Defendants. By separate Order, the Court will DISMISS
17

WITH PREJUDICE all claims of both Plaintiffs. Additionally, Plaintiffs’
counsel’s Motion To Withdraw (Doc. 38) is hereby GRANTED.
DONE this the 13th day of October, 2017.

VIRGINIA EMERSON HOPKINS
United States District Judge

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