Heining et al v. Anniston, Alabama, City of et al
Filing
55
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 9/26/2017. (JLC)
FILED
2017 Sep-26 PM 04:28
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
RONALD DALE HEINING and
TYLER WADE HEINING,
)
)
)
Plaintiffs,
)
)
v.
)
)
CITY OF ANNISTON, ALABAMA; )
DON HOYT, individually and in his )
official capacity; and DARYL
)
ABERNATHY, individually and in )
his official capacity;
)
)
Defendants.
)
Case No.: 1:15-CV-1363-VEH
MEMORANDUM OPINION
I.
INTRODUCTION AND PROCEDURAL HISTORY
Plaintiffs Ronald Dale Heining (“Ronald Heining”) and his son, Tyler Wade
Heining (“Tyler Heining”), initiated this civil rights lawsuit on August 12, 2015,
against Defendants City of Anniston (the “City”), Don Hoyt (“City Manager
Hoyt”) (sued both individually and in his official capacity as City Manager),
Robert J. Dean, Jr. (“City Public Works Director Dean”) (sued both individually
and in his official capacity as Public Works Director for the City), and Daryl
Abernathy (“City Assistant Street Superintendent Abernathy”) (sued both
individually and in his official capacity as Assistant Street Superintendent for the
City) (City Manager Hoyt, City Public Works Director Dean, and City Assistant
Street Superintendent Abernathy are sometimes referred to collectively as the
“Individual Defendants”). (Doc. 1). Plaintiffs filed a First Amended Complaint
(Doc. 5) on August 26, 2015, pursuant to this court’s Order Requiring Repleader
(the “Repleader Order”). (Doc. 4). The First Amended Complaint contains sixteen
causes of action–half of which allege federal claims and the other half of which
assert state law claims.
PLAINTIFFS’ FEDERAL LAW CLAIMS
Specifically, Plaintiffs’ federal claims are – with the exception of Count
Eight – all constitutional claims by and through 42 U.S.C. § 1983. They are
described with more particularity below.
!
Count One (asserted against all Defendants and in all capacities) for
unlawful seizure in violation of Plaintiffs’ Fourth and Fourteenth
Amendment rights. (Doc. 5 at 6-8 ¶¶ 26-36);
!
Count Two (asserted against all Defendants and in all capacities) for
malicious prosecution in violation of Plaintiffs’ Fourth and Fourteenth
Amendment rights. (Id. at 9-10 ¶¶ 37-44);
!
Count Three (asserted against all Defendants and in all capacities) for abuse
of process in violation of Plaintiffs’ Fourth and Fourteenth Amendment
2
rights. (Id. at 10-12 ¶¶ 45-52);
!
Count Four (asserted against all Defendants and in all capacities) for a nonspecific deprivation of liberty in violation of Plaintiffs’ Fifth and Fourteenth
Amendment rights. (Id. at 12-14 ¶¶ 53-63);
!
Count Five (asserted against all Defendants and in all capacities) for a nonspecific deprivation of liberty in violation of Plaintiffs’ Fifth and Fourteenth
Amendment rights. (Id. at 15-17 ¶¶ 64-75);
!
Count Six (asserted against all Defendants and in all capacities) for a nonspecific deprivation of liberty in violation of Plaintiffs’ Sixth and
Fourteenth Amendment rights. (Id. at 17-19 ¶¶ 76-86);
!
Count Seven (asserted against all Defendants and in all capacities) for a
non-specific deprivation of liberty in violation of Plaintiffs’ Sixth and
Fourteenth Amendment rights. (Id. at 20-22 ¶¶ 87-97); and
!
Count Eight (asserted against all Defendants and in all capacities) for
conspiracy to commit constitutional violations brought pursuant to 42
U.S.C. § 1985. (Id. at 22-24 ¶¶ 98-108).
PLAINTIFFS’ STATE LAW CLAIMS
Plaintiffs’ state law counts are as follows:
!
Count Nine (asserted against all Defendants and in all capacities) for false
3
arrest and imprisonment. (Id. at 25-26 ¶¶ 109-113);
!
Count Ten (asserted against all Defendants and in all capacities) for assault
and battery. (Id. at 26-27 ¶¶ 114-118);
!
Count Eleven (asserted against all Defendants and in all capacities) for
malicious prosecution. (Id. at 27-28 ¶¶ 119-124);
!
Count Twelve (asserted against all Defendants and in all capacities) for
abuse of process. (Id. at 28-29 ¶¶ 125-130);
!
Count Thirteen (asserted against all Defendants and in all capacities) for
negligence. (Id. at 29-30 ¶¶ 131-136);
!
Count Fourteen (asserted against all Defendants and in all capacities) for
wantonness. (Id. at 30-31 ¶¶ 137-142);
!
Count Fifteen (asserted against the City pursuant to Ala. Code § 11-47190)1 for neglectfulness. (Id. at 31-32 ¶¶ 143-146); and
!
Count Sixteen (asserted against all Defendants and in all capacities) for
conspiracy. (Id. at 32-33 ¶¶ 147-151).
1
While boilerplate allegations within Count Fifteen indicate that this claim is brought against
all Defendants (Doc. 5 at 31 ¶¶ 143-144), the title of such Count reflects that the City is the only
intended Defendant. Additionally, Ala. Code § 11-47-190 is a municipal liability statute. See id.
(“No city or town shall be liable for damages for injury done to or wrong suffered by any person or
corporation, unless such injury or wrong was done or suffered through the neglect, carelessness, or
unskillfulness of some agent, officer, or employee of the municipality engaged in work therefor and
while acting in the line of his or her duty, . . . .”).
4
THE PENDING MOTION
Pending before the court is Defendants’ Motion for Summary Judgment
(Doc. 34) (the “Motion”) filed on February 28, 2017. The parties have supported
and opposed the Motion. (Docs. 35, 38-40, 46, 51, 54). Accordingly, the Motion is
ready for disposition and, for the reasons explained below, is due to be
GRANTED. Specifically, all of Plaintiffs’ federal claims are due to be
DISMISSED WITH PREJUDICE as to all Defendants. Further, all of Plaintiffs’
state law claims are due to be DISMISSED WITH PREJUDICE as to all
Defendants other than Robert J. Dean, Jr. in his individual capacity and Daryl
Abernathy in his individual capacity. Additionally, all of Plaintiffs’ state law
claims against Robert J. Dean, Jr. in his individual capacity and Daryl Abernathy
in his individual capacity are also due to be DISMISSED WITH PREJUDICE
except for their claims against those individuals in their individual capacities that
are set out in Counts Nine (false arrest and false imprisonment) Count Eleven
(malicious prosecution), Count Twelve (abuse of process), and Count Sixteen
(conspiracy to commit these torts). Finally, the court finds that no federal claims
remain and declines to exercise it supplemental jurisdiction over Plaintiffs’
remaining state law claims. Accordingly, such claims are due to be DISMISSED
WITHOUT PREJUDICE.
5
II.
FACTUAL BACKGROUND 2, 3
Tyler Heining, together with his mother, owned a janitorial business known
as B&T Supplies (“B&T”) that sold various items like toilet tissue, paper towels,
handsoap, road deicer, and degreaser to the City. AF No. 1;4 (Doc. 35-2 at 8 at 25-
2
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 statement of facts. 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.
3
The designation “AF” within this factual background section stands for admitted fact and
indicates a fact offered by Defendants that Plaintiffs have admitted in their written submissions on
summary judgment, in their deposition testimony, or by virtue of any other evidence offered in
support of their case. Under appendix II of the court’s Uniform Initial Order (Doc. 2) entered on
August 13, 2015, “[a]ll statements of fact must be supported by specific reference to evidentiary
submissions.” (Id. at 16). For Plaintiffs, more specifically, this means that “[a]ny statements of fact
that are disputed by the non-moving party must be followed by a specific reference to those portions
of the evidentiary record upon which the dispute is based.” (Id. at 17). Consequently, whenever
Plaintiffs have inadequately asserted a dispute over a fact that Defendants have otherwise
substantiated with an evidentiary citation, the court has reviewed the cited evidence and, if it in fact
fairly supports Defendants’ factual assertion, has accepted Defendants’ fact. On the other hand,
whenever Plaintiffs have adequately disputed a fact offered by Defendants, the court has reviewed
the evidence cited by Plaintiffs and, if it in fact fairly supports Plaintiffs’ factual assertion, has
accepted Plaintiffs’ version. The court’s numbering of admitted facts (e.g., AF No. 1) corresponds
to the numbering of Defendants’ statement of undisputed material facts as set forth in Doc. 35 and
responded to by Plaintiffs in Doc. 51. A number following a decimal point corresponds to the
particular sentence within the numbered statement of facts. For example, (AF No. 3.2) would
indicate the second sentence of paragraph 3 of Defendants’ statement of undisputed material facts
is the subject of the court’s citation to the record.
4
The court acknowledges that Plaintiffs have objected to this fact as “immaterial and
irrelevant to their claims against Defendants.” (Doc. 51 at 4 ¶ 1). This fact is supported by record
evidence and is included as a fact relevant to the overall background of this case. All page references
to Doc. 51 correspond with the court’s CM/ECF numbering system.
6
28).5 Ronald Heining helped out with the company, including making sales
contracts with the City. AF No 1; (Doc. 35-2 at 9 at 29); (Doc. 35-1 at 54 at 33);6
AF No. 2.
According to Ronald Heining, in June or July of 2012, some unknown
person (or persons) slipped a sealed envelope under the door of B&T. AF No. 3.1.
The envelope stated, “Deliver Ben Little.” AF No. 3.2. Ben Little (“Councilman
Little”) was an Anniston Councilman. AF No. 3.3. Ronald Heining testified that
he did not know Councilman Little and found it odd that someone would slip an
envelope under the door of B&T for Councilman Little. AF No. 4.
Inside the envelope were two or three sheets of paper concerning ethical
violations committed by City officials, particularly within in the public works
department. AF No. 5.1. Ronald Heining delivered the envelope to Councilman
Little. AF No. 5.2. After Councilman Little read the envelope’s contents, he and
Ronald Heining went to the office of City Manager Hoyt. AF No. 6. Hoyt then
read the two or three sheets of paper and said he would investigate the matter. AF
No. 6.
5
The first page references to Doc. 35-2 correspond with the court’s CM/ECF numbering
6
The first page references to Doc. 35-1 correspond with the court’s CM/ECF numbering
system.
system.
7
Hoyt testified that this meeting with Councilman Little and Ronald Heining
was actually the second time that Ronald Heining had come to see him (Hoyt). AF
No. 7.1.7 On the first occasion, Ronald Heining had come alone and accused City
Public Works Director Dean, the head of the public works department, of not
having proper credentials to hold his position. AF No. 7.2.8 Hoyt conducted an
investigation of that allegation. AF No. 8.1.9 Hoyt testified that even though Dean
did not have an engineering degree (Doc. 40-2 at 36), Hoyt concluded that
whoever had alleged that Dean lacked the proper credentials was wrong. AF No.
8.2.10
Hoyt also conducted an investigation of each of the allegations of
impropriety within the Public Works Department that were presented to him by
Councilman Little and Ronald Heining. (Doc. 35-1 at 45-46); (Doc. 35-5 at 26).
7
The court acknowledges that Plaintiffs have objected to this fact as “immaterial and
irrelevant to their claims against Defendants.” (Doc. 51 at 5 ¶ 7). This fact is supported by record
evidence and is included as a fact relevant to the overall background of this case.
8
The court acknowledges that Plaintiffs have objected to this fact as “immaterial and
irrelevant to their claims against Defendants.” (Doc. 51 at 5 ¶ 7). This fact is supported by record
evidence and is included as a fact relevant to the overall background of this case.
9
The court acknowledges that Plaintiffs have objected to this fact as “immaterial and
irrelevant to their claims against Defendants.” (Doc. 51 at 5 ¶ 8). This fact is supported by record
evidence and is included as a fact relevant to the overall background of this case.
10
The court acknowledges that Plaintiffs have objected to this fact as “immaterial and
irrelevant to their claims against Defendants.” (Doc. 51 at 5 ¶ 8). This fact is supported by record
evidence and is included as a fact relevant to the overall background of this case.
8
During his investigation, Hoyt had a meeting with the Public Works Department to
discuss the rumors and allegations, to inform the employees that he would
investigate and prepare a report, and to tell the employees to refrain from
spreading rumors. AF No. 12.
Holt took no action against Dean and City Assistant Street Superintendent
Abernathy after investigating the allegations. Plaintiffs question the thoroughness
of Hoyt’s investigation and point out that each man later pleaded guilty to an
ethics violation related to the conduct that Hoyt investigated. (Doc. 51 at 5-6 ¶
10); (Doc. 38-4 at 47-51);11 (Doc. 40-4 at 54-55).12
James Fluker (“Mr. Fluker”), a laborer who formerly worked for the City
Public Works Department, has sworn in an affidavit dated July 11, 2015,13 that he
was recruited by the Individual Defendants to set up both Councilman Little and
Plaintiffs.14 Although the timeline provided by Mr. Fluker is not entirely clear, Mr.
11
All page references to Doc. 38-4 correspond with the court’s CM/ECF numbering system.
12
All page references to Doc. 40-4 correspond with the court’s CM/ECF numbering system.
13
Mr. Fluker’s affidavit is attached to Plaintiffs’ First Amended Complaint. (Doc. 5-1). It is
also part of Plaintiffs’ evidentiary submission offered in opposition to the Motion. (Doc. 38-3).
14
The court acknowledges that Defendants’ version of facts regarding Mr. Fluker differ
sharply from that of Plaintiffs. Therefore, the sworn testimony from witnesses that Defendants rely
upon to support their version of events constitutes disputed facts in light of the contents of Mr.
Fluker’s affidavit, and the conflicting evidence contained in the record creates a “he said/they said”
credibility contest. Further, because Plaintiffs are the non-movants, the court is obligated to view the
record in the light most favorable to them. Consequently, the court accepts Plaintiffs’ reliance upon
9
Fluker testified that during a meeting that took place at the old National Guard
Armory, Dean and Abernathy “confronted [him] about talking to [Councilman]
Little” and “asked [him] to meet privately with [them] and Hoyt while at the
Armory meeting.” (Doc. 5-1 at 2 ¶ 11). “Dean told [Mr. Fluker] that if [he] didn’t
help them to set up [Councilman] Little, then they would fire [him].” (Doc. 5-1 at
2 ¶ 12). Mr. Fluker maintains that Dean and Abernathy “asked [him] to call
[Councilman] Little and get [Councilman Little] to ask [Mr. Fluker] to get a copy
of a DVD dealing with a stolen trailer.” (Doc. 5-1 at 2 ¶ 12).
Abernathy then took Mr. Fluker to Dean’s office. (Doc. 5-1 at 1 ¶ 6). Dean
was already there and stated that “he wanted [Councilman] Little gone because
they wanted to contract our jobs.” (Doc. 5-1 at 1 ¶ 6). Hoyt subsequently walked
into the office and “said to [Mr. Fluker] that [he] was doing the right thing by
helping to prosecute [Councilman] Little.” (Doc. 5-1 at 1 ¶ 7).
Around this same time, Mr. Fluker and Ronald Heining attended a City
Council Meeting in which Councilman Little read and discussed the accusations of
impropriety against the City Public Works Department. AF No. 16.1 Mr. Fluker
sat next to Ronald Heining, and, according to Ronald Heining, Mr. Fluker
confided that he had previously placed coolant seal belonging to the City on
Mr. Fluker’s account of these events for the purpose of evaluating the merits of Defendants’ Motion.
10
Abernathy’s truck for his personal use. AF No. 16.2. After the City Council
Meeting, Ronald Heining introduced Mr. Fluker to Councilman Little as “the guy
that put coolant seal on Daniel [sic] Abernathy's vehicle.” AF No. 17.
Lt. Allen George (“Lt. George”) was the police investigator who was in
charge of investigating Mr. Fluker’s fabricated allegations that Councilman Little
had asked him to steal the security footage DVD. AF No. 19.1. When Lt. George
learned about the DVD allegations involving Councilman Little, he met with
Dean, Abernathy and Mr. Fluker in Dean’s office. AF No. 19.2. Hoyt was not
present at this meeting. AF No. 19.3.
After Lt. George completed his investigation, Councilman Little was
arrested and charged criminally. AF No 23.1. Although Councilman Little was
found guilty at the district court level, he appealed that decision and his criminal
case was later nolle prossed. AF No. 23.2.
Mr. Fluker further states in his affidavit that, at some point in August of
2012, Abernathy came to see Mr. Fluker while he was on a lunch break during
work. (Doc. 5-1 at 1 ¶ 4). According to Mr. Fluker, “Mr. Abernathy told [Mr.
Fluker] to come with him to file a police report against Ronald Heining and his
son, Tyler Heining.” (Doc. 5-1 at 1 ¶ 5). Abernathy explained to Mr. Fluker that if
he agreed to “set up” Plaintiffs, then he would receive “a pay raise and . . . comp
11
time.” (Doc. 5-1 at 2 ¶ 13).
More specifically as it pertains to the “set up” of Plaintiffs, Mr. Fluker has
testified that Dean and Abernathy, “came up with a story about [Plaintiffs’]
meeting [Mr. Fluker] at Scotts Grocery and attempting to bribe [Mr. Fluker] and
influence [him] so [he] would not testify against [Councilman] Little.”15 (Doc. 5-1
at 2 ¶ 14). After “agree[ing] to [tell] that false story, [Mr. Fluker] went across the
street with Abernathy” to the Anniston Police Department and made the false
report about Plaintiffs to Lt. George. (Doc. 5-1 at 2 ¶¶ 15, 16).
According to the Alabama Uniform Incident/Offense Report (the “Report”)
dated August 23, 2012, attached as an exhibit to Ronald Heining’s deposition, Mr.
Fluker reported that he had received threats by phone and was followed by Ronald
Heining for “an extended period of time” on August 14, 2012. (Doc. 35-1 at 30).
The Report further reflects that Mr. Fluker felt “that all of these actions [were]
because of him coming forward against Councilman Little.” (Doc. 35-1 at 30).
Mr. Fluker also indicated that on August 18, 2012, at approximately 7:00
p.m., he and his wife Amy were purchasing fuel at Scott's Grocery when Ronald
15
Mr. Fluker’s affidavit does not implicate Hoyt in the fabrication of allegations against
Plaintiffs; only in the fabrication of allegations against Councilman Little. And, Mr. Fluker’s
affidavit is the only evidence before this Court of any conspiracy. Accordingly, to the extent asserted
against Hoyt, Plaintiffs’ claims of conspiracy (Counts Eight and Sixteen) are due to be dismissed
with prejudice on that basis.
12
Heining and an individual Mr. Fluker believed to be Tyler Heining pulled up in a
small black sports utility vehicle and Ronald Heining stated, “I have $1,000 cash if
you don't go to trial with Ben Little and keep your mouth shut.” (Doc. 35-1 at 30).
Mr. Fluker further reported that Ronald Heining kept saying, “take the money, you
know you need the money, just take it.” (Doc. 35-1 at 31). The Report also states
that when Mr. Fluker would not take the money, Ronald Heining told him, “I will
be at Ben Little’s trial and will be on his side and testify about all of this crap”
before driving away “at a high rate of speed like he was mad.” (Doc. 35-1 at 31).
Mr. Fluker identified Tyler Heining from a photographic lineup. AF No.
30.1. Mr. Fluker’s wife confirmed the encounter at Scott’s Grocery, but was
unable to identify either Ronald Heining or Tyler Heining. AF No. 30.2.
On August 24, 2012, Ronald Heining and Tyler Heining were both arrested
and charged with intimidating a witness, an alleged violation of Ala. Code §
13A-10-123, and bribing a witness, an alleged violation of Ala. Code §
13A-10-121. AF No. 31.
Both Ronald and Tyler Heining were placed in jail for about two to three hours
before being released on bond.16 AF No. 32.
16
The court acknowledges that Plaintiffs have objected to the approximate amount of time
that they spent in jail as a fact that is “immaterial and irrelevant to their claims against Defendants.”
(Doc. 51 at 10 ¶ 32). This information is supported by record evidence and is included as a fact
13
After the August 2012 arrest, Ronald Heining was arrested for disorderly
conduct as the result of complaints made by Nicole Dean, the wife of City Public
Works Director Dean. AF No. 33.1. Ronald Heining was arrested a third time on
October 24, 2012, again for intimidating a witness, this time in relation to
allegations made by City Assistant Street Superintendent Abernathy. AF No. 33.2.
From the time of their arrests, Ronald and Tyler Heining have denied any
involvement in any alleged bribery or intimidation of Mr. Fluker. AF No. 36.1.
More specifically, in January 2013, Ronald and Tyler Heining told their criminal
defense attorney that they were somewhere else when the alleged bribery and
intimidation of Mr. Fluker supposedly occurred and provided a list of alibi
witnesses to corroborate their story. AF No. 36.2.
On April 9, 2015, the bribery and intimidation charges stemming from
Ronald and Tyler Heining’s August 2012 arrests were nolle prossed by [Assistant
District Attorney] Randy Moeller (“Mr. Moeller”). AF No. 37. When questioned
about the decision not to prosecute these charges, Mr. Moeller recalled that “Mr.
Fluker had issues. He was a problematic witness.” (Doc. 35-7 at 4 at 11).17 Mr.
Moeller also confirmed that Mr. Fluker had received more charges. Id.
relevant to the overall background of this case.
17
The first page references to Doc. 35-7 correspond with the court’s CM/ECF numbering
system.
14
III.
STANDARDS
Under Federal Rule of Civil Procedure 56, summary judgment is proper if
there is no genuine dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. FED. R. CIV. P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 2265 (1986)
(“[S]ummary judgment is proper if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.”) (internal quotation marks omitted). The
party requesting summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and identifying those portions of the
pleadings or filings that it believes demonstrate the absence of a genuine issue of
material fact. Celotex, 477 U.S. at 323, 106 S. Ct. at 2553. Once the moving party
has met its burden, Rule 56(c) requires the non-moving party to go beyond the
pleadings in answering the movant.18 Id. at 324, 106 S. Ct. at 2553. By its own
affidavits – or by the depositions, answers to interrogatories, and admissions on
file – it must designate specific facts showing that there is a genuine issue for trial.
18
When Celotex was decided, FED. R. CIV. P. 56(e) encompassed this express requirement;
now this concept is covered by the language provided for under FED. R. CIV. P. 56(c).
15
Id.
The underlying substantive law identifies which facts are material and
which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.
Ct. 2505, 2510, 91 L. Ed. 2d. 202 (1986). All reasonable doubts about the facts
and all justifiable inferences are resolved in favor of the non-movant. Chapman v.
AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000). Only disputes over facts that
might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Anderson, 477 U.S. at 248, 106 S. Ct. at
2510. A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. If the evidence presented by the nonmovant to rebut the moving party’s evidence is merely colorable, or is not
significantly probative, summary judgment may still be granted. Id. at 249, 106 S.
Ct. at 2511.
How the movant may satisfy its initial evidentiary burden depends on
whether that party bears the burden of proof on the given legal issues at trial.
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant
bears the burden of proof on the given issue or issues at trial, then it can only meet
its burden on summary judgment by presenting affirmative evidence showing the
absence of a genuine issue of material fact – that is, facts that would entitle it to a
16
directed verdict if not controverted at trial. Id. (citing United States v. Four
Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)). Once the moving
party makes such an affirmative showing, the burden shifts to the non-moving
party to produce “significant, probative evidence demonstrating the existence of a
triable issue of fact.” Id. (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it
can satisfy its initial burden on summary judgment in either of two ways. Id. at
1115-16. First, the movant may simply show that there is an absence of evidence
to support the non-movant’s case on the particular issue at hand. Id. at 1116. In
such an instance, the non-movant must rebut by either (1) showing that the record
in fact contains supporting evidence sufficient to withstand a directed verdict
motion, or (2) proffering evidence sufficient to withstand a directed verdict motion
at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When
responding, the non-movant may no longer rest on mere allegations; instead, it
must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358, 116 S.
Ct. 2174, 2183, 135 L. Ed. 2d 606 (1996). The second method a movant in this
position may use to discharge its burden is to provide affirmative evidence
demonstrating that the non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by
17
offering evidence sufficient to withstand a directed verdict at trial on the material
fact sought to be negated. Id.
III.
THE STATUTE OF LIMITATIONS, ACCRUAL, AND TOLLING
All constitutional claims brought under § 1983 are tort actions
and, thus, are subject to the statute of limitations governing personal
injury actions in the state where the § 1983 action has been brought.
See Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d
973 (2007). Alabama law creates a two-year statute of limitations for
personal injury actions. See Ala. Code § 6-2-38. Therefore, if any of
[Plaintiffs’] claims accrued prior to ... two years prior to the date
[they] filed this lawsuit—they are time barred by the statute of
limitations.
Boyd v. Warden, Holman Corr. Facility, 856 F.3d 853, 872 (11th Cir. 2017).
Thus, the Court will apply Alabama’s two-year statute of limitations to each
federal claims (Counts One through Eight). As to each pendant state claim (Counts
Nine through Sixteen), the Court will apply Alabama’s limitations period specific
to that claim.
Furthermore, although federal law, as opposed to state law, determines
when a cause of action has accrued as to a § 1983 damage action, Wallace v. Kato,
549 U.S. 384, 388, 127 S. Ct. 1091, 1095, 166 L. Ed. 2d 973 (2007), the Court has
not found any discrepancy between federal law and Alabama law regarding
accrual of claims. Accordingly, its accrual analysis will be applied consistently to
all claims, whether based on federal law or on state law. Finally, the issue of
18
equitable tolling is determined by Alabama law, even as to Plaintiffs’ § 1983
claims. Board of Regents of University of State of N.Y. v. Tomanio, 446 U.S. 478,
100 S. Ct. 1790, 64 L. Ed. 2d 440 (1980). Accordingly, the Court’s analysis of
equitable tolling will be applied consistently to all claims, whether based on
federal or state law.
A.
The Statute of Limitations
1.
Plaintiffs’ Federal Claims
The Supreme Court has ruled that, for statute of limitations purposes, §
1983 actions are analogous to personal injury actions. Wilson v. Garcia, 471 U.S.
261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985); see also Allen v. King, 279 F.
App'x 847, 848 (11th Cir. 2008) (“There is no specific statute of limitations period
for actions brought under § 1983. Owens v. Okure, 488 U.S. 235, 239, 109 S. Ct.
573, 576, 102 L. Ed. 2d 594 (1989). Instead, the statute of limitations period for §
1983 claims is determined by the state's statute of limitations for personal injury
claims. Id. at 240-41, 109 S. Ct. 573.”). In Alabama, the statute of limitations for
filing a personal injury claim — and thus a 1983 action based on laws enacted
before December 1, 1990 — is two years. Lufkin v. McCallum, 956 F.2d 1104,
1106, 1108 (11th Cir.), cert. denied, 506 U.S. 917 (1992); ALA. CODE 1975 §
19
6–2–38(l).19
2.
Plaintiffs’ State Law Claims
Alabama’s statute of limitations for all of Plaintiffs’ state law claims other
than false imprisonment (Count Nine) and assault and battery (Count Ten) is two
years. ALA. CODE 1975 § 6–2–38(l) (“All actions for any injury to the person or
rights of another not arising from contract and not specifically enumerated in this
section must be brought within two years.”). As pointed out by Plaintiffs’ in their
opposition brief (Doc. 51 at 46), and undisputed by Defendants in their reply brief,
Alabama’s statute of limitations for Plaintiffs’ state law claims for false
imprisonment (Count Nine) and assault and battery (Count Ten) is six years. ALA.
CODE 1975 § 6–2–34(1) (“The following must be commenced within six years: (1)
Actions for any trespass to person or liberty, such as false imprisonment or assault
and battery”).
B.
Accrual
Federal law determines the date on which the statute begins to run [as
to a federal claim], and the statute of limitations for a § 1983 action
begins to run from the date “the facts which would support a cause of
action are apparent or should be apparent to a person with reasonably
19
Here, the parties agree that the statute of limitations for filing a § 1983 action is two years.
However, they disagree as to when each of Plaintiffs’ § 1983 claims actually accrued. Alternatively,
Plaintiffs argue that the limitations periods as to their § 1983 claims should be equitably tolled. As
to these claims, the court will first address the issue of accrual, and then that of equitable tolling.
20
prudent regard for his rights.” Brown v. Georgia Bd. of Pardons and
Paroles, 335 F.3d 1259, 1261 (11th Cir.2003) (quoting Rozar v.
Mullis, 85 F.3d 556, 561–62 (11th Cir.1996)); Mullinax v.
McElhenney, 817 F.2d 711, 716 (11th Cir.1987). “It is well
established that a federal claim accrues when the prospective plaintiff
knows or has reason to know of the injury which is the basis of the
action.” McNair v. Allen, 515 F.3d at 1174 (quoting Corn v. City of
Lauderdale Lakes, 904 F.2d 585, 588 (11th Cir.1990)).
Salas v. Pierce, 297 F.App'x 874, 877 (11th Cir.2008).20
Alabama law is the same.
The very basic and long settled rule of construction of our courts is
that a statute of limitations begins to run in favor of the party liable
from the time the cause of action “accrues.” The cause of action
“accrues” as soon as the party in whose favor it arises is entitled to
maintain an action thereon.
Freeman v. Holyfield, 179 So.3d 101, 105 (Ala. 2015) (internal citations omitted)
(some alterations in punctuation).
When a prospective plaintiff has the requisite knowledge depends on what
claims he or she wishes to assert.21 Thus, the Court will address each of the
20
“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11TH CIR. R. 36–2 (2005).
21
Thus, a claim based on false arrest or illegal search and seizure generally accrues when the
police conduct actually occurred and not when the plaintiff was acquitted or convicted of the
resulting criminal charges. Similarly, a claim alleging the denial of a fair trial generally accrues at
the conclusion of the trial, unless the plaintiff could not reasonably have known of the violation then.
The accrual of an action based on the violation of rights during a criminal trial is not delayed during
habeas corpus proceedings challenging the conviction, if the plaintiff knew of the injury forming the
basis of the action earlier. When a § 1983 claim is based on the unlawful taking of property, the
statute of limitations begins to run on the date of the wrongful appropriation. § 12.40. Accrual of
claim, 2 Civ. Actions Against State & Loc. Gov’t (footnotes omitted).
21
Plaintiffs’ Counts (that they have not completely abandoned)22 in light of the types
of claims they assert.23
C.
Equitable Tolling
The doctrine of equitable tolling creates an exception to the time limitations
otherwise imposed by statutes of limitations. Whether applied to a federal law
claim or a state law claim, “[t]he party seeking equitable tolling has the burden of
proof, Menominee Indian Tribe of Wis. v. United States, ––– U.S. ––––, 136 S.Ct.
750, 755–56, 193 L.Ed.2d 652 (2016).” Villarreal v. R.J. Reynolds Tobacco Co.,
839 F.3d 958, 971 (11th Cir. 2016), cert. denied, 137 S. Ct. 2292 (2017). “ ‘[A]
litigant seeking equitable tolling bears the burden of establishing two elements: (1)
that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way’ as to the filing of his action.” Weaver v. Firestone,
155 So. 3d 952, 957-8 Ala. 2013) (quoting Pace v. DiGuglielmo, 544 U.S. 408,
418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). “ ‘[T]he threshold necessary to
trigger equitable tolling is very high, lest the exceptions swallow the rule.’” Id. at
958 (quoting Ex parte Ward, 46 So.3d 888 (Ala.2007)). Further, even when the
statutes of limitations are tolled, a plaintiff can recover only for injuries sustained
22
See section IV.A., infra, of this Memorandum Opinion.
23
As explained supra, Plaintiffs have completely abandoned their claims in Counts Six and
Seven, as well as their claims in any Counts for failure to train (e.g.,Count Fifteen in its entirety).
22
during the limitations period. Am. Mut. Liab. Ins. Co. v. Agricola Furnace Co.,
236 Ala. 535, 183 So. 677, 679 (1938).
IV.
ANALYSIS
The court turns first to those claims which Defendants assert are abandoned
by Plaintiffs’ failure to respond at summary judgment. It next addresses, as to
Plaintiffs’ non-abandoned claims, Defendants’ assertions that all of such claims
other than Plaintiffs’ claims for malicious prosecution are barred by the statute of
limitations. Finally, as to claims that are neither abandoned nor time-barred, the
court analyzes claims that Defendants assert fail substantively.
A.
Abandoned Claims
1.
Completely abandoned claims
In their reply brief, Defendants maintain that there are several categories of
claims which Plaintiffs have abandoned by not addressing them at all. (Doc. 54 at
26).24 These include:
(1) any “official capacity” claims against individual Defendants, (2)
any “Sixth Amendment” claims, (3) any “respondeat superior” claims,
(3) any claim against Anniston based on alleged intentional torts of
individual defendants, as municipal immunity applies, and (4) any
claim against Anniston based on an alleged “failure to train.”
Id.
24
All page references to Doc. 54 correspond with the court’s CM/ECF number system.
23
Having studied Plaintiffs’ opposition to the Motion, the court agrees with
Defendants that a dismissal of the foregoing claims on the grounds of
abandonment is appropriate because Plaintiffs have omitted any reference to them
in their opposition brief.25 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) (“[T]he onus is
upon the parties to formulate arguments; grounds alleged in the complaint but not
relied upon in summary judgment are deemed abandoned.”); Hudson v. Norfolk
Southern Ry. Co., 209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001) (“When a party
fails to respond to an argument or otherwise address a claim, the Court deems such
argument or claim abandoned.” (citing Dunmar, 43 F.3d at 599)); cf. McMaster v.
United States, 177 F.3d 936, 940-41 (11th Cir. 1999) (claim may be considered
25
Notably, Plaintiffs have not contested Defendants’ position on abandonment of these
claims by, for example, seeking permission to file a surreply.
24
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”).
Further, Plaintiffs have not offered any opposition to Defendants’ arguments
(Doc. 35 at 33-34) made in support of dismissing Plaintiffs’ assault and battery
claim (Count Ten). Therefore (i) all official-capacity claims against the Individual
Defendants (all Counts),26 all Sixth Amendment claims against all Defendants
(Counts Six and Seven),27 (ii) all respondeat superior-based claims, (iii) all
intentional-tort claims against the City (Counts Two, Three, Eight, Nine, Ten,
26
Additionally, because Plaintiffs have separately sued the City, their official capacity claims
are redundant. See Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1060 (11th Cir. 1992).
(“Official-capacity suits, in contrast, ‘generally represent only another way of pleading an action
against an entity of which an officer is an agent.’” (quoting Kentucky v. Graham, 473 U.S. 159, 165,
105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985)) (citing Monell v. New York City Dept. of Social
Services, 436 U.S. 658, 690, n.55, 98 S. Ct. 2018, 2035, n.55, 56 L. Ed. 2d 611 (1978))); (see also
Doc. 35 at 23 (Defendants’ explaining that “any official-capacity claims are duplicative of Plaintiffs’
same claims against Anniston)). All page references to Doc. 35 correspond with the court’s CM/ECF
numbering system.
27
Additionally, the court cannot envision how Defendants’ disputed wrongful actions
arguably trigger Plaintiffs’ Sixth Amendment rights. The scope of the Sixth Amendment is limited
to criminal proceedings and guarantees a criminal defendant the right to counsel. See Austin v.
United States, 509 U.S. 602, 608, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993) (“The protections
provided by the Sixth Amendment are explicitly confined to ‘criminal prosecutions.’” (quoting
United States v. Ward, 448 U.S. 242, 248, 100 S. Ct. 2636, 2641, 65 L. Ed. 2d 742 (1980))).
25
Eleven, Twelve and Sixteen), (iv) all failure-to-train claims against the City
(Counts Thirteen, Fourteen and Count Fifteen), and (v) the assault and battery
claim (Count Ten) are due to be DISMISSED with prejudice as completely
abandoned by Plaintiffs.28
2.
Partially abandoned claims
Defendants also assert that Plaintiffs have abandoned other claims by only
addressing them superficially, and then only as brought against the Individual
Defendants. These include Plaintiffs’ § 1983 conspiracy claim and their state law
claims for abuse of process, negligence, wantonness, and conspiracy. (Doc. 54 at
26). The court agrees with Defendants that Plaintiffs’ contentions regarding some
of these claims are underdeveloped but, nonetheless, addresses them further within
this opinion because Defendants have done so in their reply. (See Doc. 54 at 26
(“However, Defendants will also address these issues, as well as the unavailing
arguments that Plaintiffs do offer, below.”)).
B.
Time-Barred Claims
The first analytical section of Defendants’ brief asserts that they are entitled
28
Thus, as to the City, only the claims in Counts Two, Four, and Five have not been
completely abandoned. As to the Individual Defendants, only individual-capacity claims have not
been completely abandoned, and, even then, all claims against the Individual Defendants that are
asserted in Counts Six, Seven, and Ten have been completely abandoned.
26
to prevail on summary judgment because, with the exception of their malicious
prosecution claims (doc. 35 at 14),29 all of Plaintiffs’ claims are time-barred. (Doc.
35 at 13). Because this is an affirmative defense, in order to prevail on summary
judgment, “[Defendants] must establish that there is no genuine issue of material
fact as to any element of that defense.” Int’l Stamp Art, Inc. v. U.S. Postal Serv.,
456 F.3d 1270, 1274 (11th Cir. 2006) (citing Martin v. Alamo Community College
Dist., 353 F.3d 409, 412 (5th Cir. 2003)). The disputed issues are: (1) when did
each of the claims (other than malicious prosecution) accrue; and (2) are the
Plaintiffs entitled to equitable tolling as to any otherwise time-barred claim.30
Initially, the court notes that the parties (and, at times, opinions discussed by
the parties or by the court) sometimes use the term “accrue” with precision, but
other times use the term “accrue” when they could more appropriately have used
the term “tolled”. Because, as explained infra, federal law determines when a
federal claim accrues, but state law determines when the claim is tolled, this court
has attempted to use these terms consistent with their definitions as set out in
Black’s Law Dictionary (10th ed. 2014). Those definitions are set out here.
ACCRUE
29
All page references to Doc. 35 correspond with the court’s CM/ECF numbering system.
30
As explained at section III. C., supra, the burden of proof is on the Plaintiffs to show that
they are entitled to equitable tolling.
27
accrue (-kroo) vb. (15c) 1. To come into existence as an enforceable
claim or right; to arise .
“The term ‘accrue’ in the context of a cause of action means to arrive,
to commence, to come into existence, or to become a present
enforceable demand or right. The time of accrual of a cause of action
is a question of fact.” 2 Ann Taylor Schwing, California Affirmative
Defenses § 25:3, at 17–18 (2d ed. 1996).
TOLL
toll vb. (15c) 1. To annul or take away . 2. (Of a
time period, esp. a statutory one) to stop the running of; to abate . See equitable tolling. 3. Hist. To raise or
collect a tax or due for the use of something.
1.
Plaintiffs’ federal false imprisonment claims are timebarred; their state false imprisonment claims are not timebarred.
Count One (§ 1983 unlawful seizure), Counts Four and Five (§ 1983 nonspecific deprivation of liberty) and Count Nine (state law false arrest and
imprisonment) analytically all fall within the ambit of a cause of action for false
imprisonment.31,32As the Supreme Court has held:
False arrest and false imprisonment overlap; the former is a species of
31
As explained at Section IV.A.1., supra, Plaintiffs have abandoned Count Nine to the extent
it was asserted against the City and to the extent it was asserted against the Individual Defendants
in their official capacities.
32
These claims remain for analysis only as to City and as to the Individual Defendants in
their individual capacities.
28
the latter....
We shall thus refer to the two torts together as false imprisonment.
That tort provides the proper analogy to the cause of action asserted
against the present respondents for the following reason: The sort of
unlawful detention remediable by the tort of false imprisonment is
detention without legal process ....
....
Reflective of the fact that false imprisonment consists of detention
without legal process, a false imprisonment ends once the victim
becomes held pursuant to such process-when, for example, he is
bound over by a magistrate or arraigned on charges.... If there is a
false arrest claim, damages for that claim cover the time of detention
up until issuance of process or arraignment, but not more.
Wallace v. Kato, 549 U.S. 384, 388–90, 127 S.Ct. 1091, 1095–96, 166 L.Ed.2d
973 (quotations and citations omitted).
a.
These claims accrued in 2012
Defendants contend that all of Plaintiffs’ false imprisonment claims accrued
on August 24, 2012, the date of Plaintiffs’ arrests (and also the date of their
release). Since this action was not commenced until the filing of this lawsuit on
August 12, 2015, Defendants assert that all of such claims are time-barred under
ALA. CODE § 6-2-38(l). In opposition, Plaintiffs do not dispute that § 6-2-38(l) is
the applicable statute of limitations as to Plaintiffs’ federal claims, and as to all of
Plaintiffs’ state law claims other than false imprisonment (Count Nine) and assault
29
and battery (Count Ten).33 Instead, Plaintiffs argue that the statute did not begin to
run until 2015. Alternatively, they argue that the statute is equitably tolled.
Finally, they argue that they have presented substantial evidence to create a jury
question as to when the statute began to run.
The Supreme Court’s decision in Wallace v. Kato, 549 U.S. 384, 127 S. Ct.
1091, a case directly on point as to Plaintiffs’ false imprisonment claims, is
controlling. The Wallace Court needed to resolve when the plaintiff’s false
imprisonment claims ended so that the beginning of the limitations period could
be determined, that is, when the statute of limitations began to run. Id. at 389, 127
S. Ct. at 1096. Relying on the traditional rule of accrual, the Court held that “the
tort cause of action accrues, and the statute of limitations commences to run, when
the wrongful act or omission results in damages .... even though the full extent of
the injury is not then known or predictable.” Id. at 391, 127 S. Ct. at 1097
(quotation marks and citation omitted). Under this rule, “[accrual occurs] when the
plaintiff has a complete and present cause of action, that is, when the plaintiff can
file suit and obtain relief[.]” Id. at 388, 127 S. Ct. at 1095 (quoting Bay Area
Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S.
33
As explained supra, these state law claims are subject to a six-year statute of limitations
pursuant to ALA. CODE 1975 § 6-2-34(1). Accordingly, the claims in Counts Nine and Ten are
timely, as this lawsuit was filed in 2015.
30
192, 201, 118 S. Ct. 542, 139 L. Ed. 2d 553 (1997) (quotation marks and citation
omitted)).
In Wallace, the plaintiff was arrested without a warrant. After the appeal of
his conviction was successful and the prosecutor declined further prosecution, he
filed a § 1983 action for his false arrest and false imprisonment. Id. at 387, 127 S.
Ct. at 1094. The Court ruled that “on a § 1983 claim seeking damages for a false
arrest in violation of the Fourth Amendment, where the arrest is followed by
criminal proceedings, [the statute of limitations] begins to run at the time the
claimant becomes detained pursuant to legal process.” Id. at 397, 127 S. Ct. at
1100 (emphasis supplied). The claims in Wallace were determined to be barred by
the statute of limitations because the plaintiff filed his action more than two years
after he was held pursuant to legal process. Id. & id. at 390 n. 3, 127 S. Ct. at 1096
n.3 (observing that his action could have been filed at the moment he was falsely
arrested).
Thus, although Plaintiffs argue that the appropriate starting point for
measuring the timeliness of their false imprisonment claims is July 11, 2015, they
are wrong. The Plaintiffs choose this date because it is the date when Mr. Fluker
revealed the role of City Public Works Director Dean and City Assistant Street
Superintendent Abernathy in the conspiracy to bring false criminal charges against
31
Plaintiffs. (Doc. 51 at 40) (“The Defendants engaged in a conspiracy to falsely
accuse the Heinings of a felony which led to their arrest and indictment.”) (The
Heinings have presented substantial evidence which could lead a rational juror to
conclude that the Heinings’ claims accrued on July 11, 2015, when they learned of
the Defendants’ conspiracy.”) On its face, this argument does not delay the
running of the statute of limitations as to the Plaintiffs’ false imprisonment claims.
The Plaintiffs do not even argue that they did not know any necessary aspect of
those claims. Essentially, they are trying to “bootstrap” the timeliness of their false
imprisonment claims by arguing lack of knowledge as to their conspiracy claim.
The Court rejects this argument.
The Plaintiffs rely on Mullinax v. McElhenney, 817 F.2d 711 (11th Cir.
1987) to support their “non-accrual” argument. However, at least as to Plaintiffs’
false imprisonment claims, Mullinax actually supports the Defendants.
In that case, in relevant part, the district court dismissed as barred by
Georgia’s two-year statute of limitations the plaintiff’s entrapment, conspiracy,
and harassment claims. The plaintiff appealed. As summarized by the Eleventh
Circuit:
The parties do not contest the applicability of that statute of
limitations to this proceeding. Nor do they disagree as to when
Mullinax commenced this action—August 9, 1984. Consequently,
32
they also agree that those claims are barred if they accrued prior to
August 10, 1982. They do dispute, however, when those claims
accrued. Mullinax contends that they accrued, at the earliest, on
August 12, 1982, when she was arrested for aiding the attempted jail
escape. Until then, she argues, she was unaware of the full extent of
her injury, its cause, or the parties involved. [The Defendants] argue
that any cause of action accrued sometime during June and July of
1982 when they undertook the two attempts to entrap Mullinax. The
district court, agreeing with [the Defendants], found these claims to
be time barred.
Id. at 715-16.
After explaining that accrual of a § 1983 claim is a matter of federal, not
state, law, the Eleventh Circuit then set out that applicable federal law as follows.
In Section 1983 cases, “ ‘the statute [of limitations] does not begin to
run until the facts which would support a cause of action are apparent
or should be apparent to a person with a reasonably prudent regard
for his rights.’ ” Calhoun v. Alabama Alcoholic Beverage Control
Board, 705 F.2d 422, 425 (11th Cir.1983) (quoting Reeb v. Economic
Opportunity Atlanta, Inc., 516 F.2d 924, 930 (5th Cir.1975)). Thus
Section 1983 actions do not accrue until the plaintiff knows or has
reason to know that he has been injured. Lavellee [v. Listi], 611 F.2d
[1129,] ... 1131 [(5th Cir.1980)], (quoting United States v. Kubrick,
444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979)).
Consequently, the district court erred in dismissing this action as time
barred simply because both entrapment attempts occurred prior to
August 10, 1982. Instead, it should have looked to when Mullinax
first realized that she had been injured and that [the Defendants] had
inflicted that injury. Under that standard, any cause of action arising
out of the entrapment attempts accrued after August 10, 1982.
First, Mullinax was unaware of the second entrapment attempt before
August 11, 1982. Although McElhenney may have placed the
33
package in Wallace's post office box prior to August 10, both
McElhenney's investigative summaries and records from the Clayton
County sheriff's office indicate that Mullinax was unaware of the
package's presence until August 11. Until she discovered the
package's presence, Mullinax was unaware of any harm resulting
from the second entrapment attempt. Therefore, any cause of action
arising out of that entrapment attempt could not have accrued before
August 11, 1982.
More importantly, Mullinax did not become aware of [the
Defendants’] involvement in procuring the telephone calls by Stocks
and in placing the package in Wallace's post office box any sooner
than August 12, 1982—the day she was arrested. Nor should she
have. Stocks misrepresented himself as an acquaintance of Wallace,
and we have found nothing in Stocks's conversations with Mullinax
that indicates [the Defendants’] involvement. Nor did Mullinax have
any reason to suspect that [the Defendants] were involved in mailing
the package to Wallace's post office box. Thus, until she was arrested,
Mullinax was unaware of [the Defendants] connection with the phone
calls and the suspect package in Wallace's post office box. Therefore,
any cause of action under Section 1983 arising out of the two
entrapment attempts is not time barred.
Accordingly, we AFFIRM the district court's order granting summary
judgment on the false accusation and arrest claim and the malicious
prosecution claim. However, we REVERSE the district court's order
granting summary judgment on the remaining claims [for entrapment,
conspiracy, and harassment] and REMAND for further proceedings
not inconsistent with this opinion.
Id. at 716-17 (footnotes omitted) (emphasis supplied).
Additionally, the cases cited in Mullinax as authoritative also show the error
in Plaintiffs’ arguments. Calhoun v. Alabama ABC Board, 705 F.2d 422, favors
the Defendants, as it stands for the proposition that, in a cause of action for race
34
discrimination, no claim accrues until the plaintiffs had notice that the license
denial was motivated by race (a required element of their claim). In Lavellee v.
Listi, 611 F.2d 1129, the former Fifth Circuit found that it lacked sufficient facts to
know whether the plaintiff knew or should have known that the pains in his back
were not the normal result of a spinal tap and so the district court erred on that
record in finding his medical malpractice claim accrued on the date of the spinal
tap. The facts of Plaintiffs’ false imprisonment claims were apparent on the date of
Plaintiffs’ arrest.34
Alternatively, Plaintiffs indicate that April 9, 2015, the date on which
Plaintiffs’ criminal charges were nolle prossed, is the appropriate accrual date.35
(Doc. 51 at 40-42). This argument is barred by the holding in Wallace and
accordingly fails.
Finally, Plaintiffs maintain that their evidence creates a triable issue as to
when their federal claims against Defendants accrued under § 6-2-38(l). (Doc. 51
34
There was more than one arrest, but all occurred in 2012, and thus were outside the twoyear limitations period.
35
Defendants concede that April 9, 2015, is the correct date for the accrual of Plaintiffs’
malicious prosecution claim. (See Doc. 35 at 14 (“Only malicious prosecution claims accrue when
the plaintiff prevails on the charges.”); id. at 15 (disputing April 9, 2015, as the accrual date “except
[for] the malicious prosecution claim, which indisputably accrued then because that was the date
Plaintiffs prevailed on the charges”)). Defendants do, however, offer other reasons in support of
dismissing Plaintiffs’ malicious prosecution claim. The court addresses those arguments later in this
opinion.
35
at 45-46). However, this is simply a repetition of their argument that they needed
to know about the conspiracy in order to have brought their false imprisonment
claims. The Court again rejects this argument. Pursuant to Wallace, absent
equitable tolling, “the statute of limitations upon a § 1983 claim seeking damages
for a false arrest in violation of the Fourth Amendment, where the arrest is
followed by criminal proceedings, begins to run [i.e. accrues] at the time the
claimant becomes detained pursuant to legal process.” Wallace v. Kato, 549 U.S.
at 397, 127 S. Ct. at 1100 ) (emphasis supplied).36
In this case, that period began to run when the Plaintiffs were held pursuant
to legal process: August 24, 2012. As that date was more than two years before the
date that this action was filed, Plaintiffs’ federal false imprisonment claims are due
to be dismissed with prejudice as time-barred, unless the Plaintiffs are entitled to
have some portion of that two-year period stayed based on equitable tolling.
b.
Equitable tolling does not apply
The Court now examines whether Plaintiffs’ federal false imprisonment
claims are saved by equitable tolling, as alternatively argued by Plaintiffs. (Doc.
36
In Wallace, the Supreme Court recognized equitable tolling’s impact on the running of the
statute of limitations (which is a matter of state law), not on the accrual of the action (which is a
matter of federal law), and carved out from the statutory limitations period the time during which
the plaintiff was a minor. Id. (“Since in the present case [the cause of action accrued] (with
appropriate tolling for the plaintiff's minority) more than two years before the complaint was filed,
the suit was out of time.”)
36
51 at 42-45).37
All facts required to assert Plaintiffs’ false imprisonment claims were
apparent on August 24, 2012. The Court acknowledges that, when the basis for a
civil rights action is not apparent at the time of the wrongful act, the claim does
not accrue until the plaintiff discovers, or with the exercise of due diligence should
have discovered, the factual basis for the cause of action. See Calhoun v. Alabama
Alcoholic Beverage Control Bd., 705 F.2d 422 (discussed supra). Thus, equitable
tolling delays the date on which the statute of limitations begins to run until such
time that the plaintiff is first put on notice of the conduct which is the basis for the
action. In Calhoun, that “conduct” was not denial of the plaintiffs’ application for
a liquor license; it was denying that application based on the plaintiffs’ race. (Id.).
Here, the Plaintiffs could have brought their false imprisonment claims on
August 24, 2012, the date they were arrested (and also the date on which they were
released). Unlike Calhoun, where no cause of action existed until the plaintiffs had
knowledge of racial bias, the Plaintiffs did not need to know of the existence of a
conspiracy in order to bring their § 1983 false imprisonment claims. Those claims
are not saved by equitable tolling. Accordingly, all Defendants will be granted
37
The Court does not address statutory tolling, as Plaintiffs have not argued that it should
apply.
37
summary judgment as to Counts One, Four, and Five and those claims will be
dismissed with prejudice as barred by the statute of limitations.38 Plaintiffs’ state
law claim for false imprisonment (Count Nine) is, however, subject to a six-year
statute of limitations. Accordingly, Defendants’ motion will be denied as to Count
Nine to the extent that such motion is based on the statute of limitations.
3.
Plaintiffs’ abuse of process claims are not time-barred
In Counts Three and Twelve, Plaintiffs allege a claim for abuse of process.
These claims remain for analysis only as to the Individual Defendants in their
individual capacities.39 “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).40 In contradistinction to
Plaintiffs’ false imprisonment counts, Defendants have failed to show, and
Plaintiffs have brought forth affirmative evidence showing that, prior to 2015, they
lacked knowledge of the essential element of malice. Accordingly, and consistent
38
With this determination, the court finds that all claims against the City are due to be
dismissed with prejudice either as abandoned or as time-barred (or both). Accordingly, the City is
due to be DISMISSED from this action.
39
As explained supra, Plaintiffs have abandoned this claim against the City and against the
individual Defendants in their official capacities.
40
The element of malice means that abuse of process is an intentional tort. Accordingly, as
explained supra, Plaintiffs have abandoned this claim against the City and against the Individual
Defendants in their official capacities.
38
with Calhoun and this court’s prior analysis, on this evidence, Plaintiffs’ abuse of
process claims did not accrue prior to 2015. Accordingly, they are not time-barred.
4.
Plaintiffs’ conspiracy claims are dismissed to the same
extent as the underlying torts have been dismissed
In Counts Eight and Sixteen, Plaintiffs assert claims for conspiracy. These
claims remain only to the extent asserted against the Individual Defendants in their
individual capacities.41 As to a civil conspiracy claim brought under 42 U.S.C. §
1985, the Supreme Court has explained that “[c]onspiracy requires an agreement
— and in particular an agreement to do an unlawful act — between or among two
or more separate persons.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1867, 198 L. Ed. 2d
290 (2017) A claim for civil conspiracy under Alabama law is no different — it
requires proof of “a combination of two or more persons to accomplish an
unlawful end or to accomplish a lawful end by unlawful means.” Hooper v.
Columbus Regional Healthcare System, Inc., 956 So. 2d 1135, 1141 (Ala. 2006)
(citations omitted). Further, “[a] civil conspiracy is not an independent cause of
action.” Funliner of Alabama, L.L.C. v. Pickard, 873 So. 2d 198, 211 (Ala. 2003)
(citing Drill Parts and Service Co. v. Joy Manufacturing Co., 619 So. 2d 1280,
1290 (Ala. 1993)). Thus, a conspiracy claim “cannot exist in the absence of an
41
As explained supra, Plaintiffs have abandoned this claim against the City and against the
individual Defendants in their official capacities.
39
underlying tort.” Goolesby v. Koch Farms, LLC, 955 So. 2d 422, 430 (Ala. 2006)
(citing Avis Rent a Car Sys., Inc. v. Heilman, 876 So. 2d 1111, 1124 (Ala. 2003)).
Accordingly, Plaintiffs’ conspiracy claims (Counts Eight and Sixteen) are due to
be dismissed with prejudice as to any underlying tort which is dismissed with
prejudice.
The only underlying torts which have not been dismissed are against the
Individual Defendants in their individual capacities. Even against the Individual
Defendants in their individual capacities, all underlying tort claims have been
dismissed as abandoned or time-barred except the torts of malicious prosecution
(Counts Two and Eleven), state law false imprisonment (Count Nine) and abuse of
process (Counts Three and Twelve). Accordingly, the court finds that all
conspiracy claims are limited to conspiracy by the Individual Defendants acting in
their individual capacities to commit the tort of malicious prosecution and/or to
commit the tort of state law false imprisonment and/or to commit the tort of abuse
of process. The Defendants’ motion is hereby GRANTED as to Counts Eight and
Sixteen, and such counts are hereby DISMISSED WITH PREJUDICE, except to
the extent that Plaintiffs have alleged, in such counts, conspiracy claims against
the Individual Defendants to maliciously prosecute the Plaintiffs, and/or to commit
the tort of state law false imprisonment, and/or to abuse process against them.
40
C.
Remaining Claims
The court now turns to the Defendants’ motion for summary judgment as to
the Plaintiffs’ remaining claims
1.
Plaintiffs’ remaining federal claims fail
Plaintiffs’ remaining federal claims are brought under 42 U.S.C. § 1983 and
1985 (by and through § 1983). A necessary element of each of these claims is that
the Individual Defendants were “acting under color of law.” 42 U.S.C. § 1983.
“Section 1983 does not federalize all torts or other deprivations of rights
committed by a person who is a law enforcement officer or other government
agent.” Butler v. Sheriff of Palm Beach Cnty., 685 F.3d 1261, 1265 (11th
Cir.2012). Individual Defendants have pointed out the total absence of such
evidence, and this court agrees.
Viewed in the light most favorable to the Plaintiffs, as it must be, the
evidence fails to show that any complained-of acts of the Individual Defendants
were committed in the performance of any actual or pretended duty that was
authorized or appeared to be authorized by their positions as employees of the
City. More specifically, in opposing summary judgment, Plaintiffs have relied
upon the Individual Defendants’ positions as City employees, together with
statements contained in an affidavit of Mr. Fluker. (Doc. 51 at 29-33).
41
However, merely because the Individual Defendants and Mr. Fluker all were
employed by the City in 2012 does not necessarily establish that any of the
Individual Defendants were acting under color of state law in taking the
complained-of actions. United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031,
1043, 85 L.Ed. 1368 (1941), laid down the rule that “misuse of power, possessed
by virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law, is action taken ‘under color of’ state law.” That the
acts must be under “pretense” of law was stressed in Screws v. United States, 325
U.S. 91, p. 111, 65 S. Ct. 1031, p. 1040, 89 L.Ed. 1495 (1945), wherein it was
noted that “acts of officers in the ambit of their personal pursuits are plainly
excluded.”
To establish that the Individual Defendants’ acts were under “pretense” of
law (as opposed to based on personal motivations), Plaintiffs have relied solely
upon Mr. Fluker’s affidavit. (Doc. 51 at 29-33). They appear to argue that the
Individual Defendants’ acts were under “pretense” of law because promises and/or
threats were made to Mr. Fluker’s employment by the City. However, Plaintiffs
have failed to point out any evidence that these Individual Defendants could (or
appeared to be able to) cause Mr. Fluker’s conditions of employment to become
better or worse.
42
Plaintiffs improperly cite to the totality of Mr. Fluker’s affidavit as evidence
supporting their contention.42 However, the only portion of that affidavit regarding
promises or threats by Individual Defendants to induce Mr. Fluker to “set up” the
Plaintiffs (and thereby were, according to Plaintiffs, acting under color of law) are
two sentences in that affidavit where he states:
13. In the meeting at Bob Dean's office in August, Darryl Abernathy
asked me to set up Ronald Heining and his son, Tyler Heining. Darryl
Abernathy said if I would do that he would give me a pay raise and
pay me comp time.
(Doc. 5-1 at 2 ¶ 13).43
Initially, the Court notes that this statement was made only by Abernathy.
Although Abernathy was the Assistant Street Superintendent for the public works
department of the City at the time of the statement, and Mr. Fluker was working at
that time as a laborer for the City’s public works department (Doc. 38-3 at 2, ¶¶ 34), Plaintiffs point to no evidence that Abernathy in fact could give Mr. Fluker a
pay raise and pay him comp time if he “set up” Plaintiffs, or that Mr. Fluker even
thought Abernathy could do so. And, Plaintiffs offer no evidence of any promise
or threat by either of the other Individual Defendants.
42
See Doc. 51 at 29-31, repeatedly citing “Doc. 38-3/pp/2-4".
43
The Court purposely omits reference to ¶ 12 of Mr. Fluker’s affidavit, because it does not
even reference either Plaintiff. Rather, it references Councilman Little, who is not a party to this
action.
43
At summary judgment, Plaintiffs must come forward with evidence of each
necessary element of their claims. That these Individual Defendants were acting
“under color of” law is a necessary element of Plaintiffs’ federal claims, which are
brought under 42 USC §§ 1983 and 1985. Based on this lack of evidence to
support this required element, Defendants’ motion for summary judgment is due to
be granted and Plaintiffs’ claims under Counts Two, Three, and Eight are also due
to be dismissed with prejudice as to the Individual Defendants (who are the sole
remaining defendants under such counts).
2.
Discretionary dismissal of Plaintiffs’ remaining state
claims
In seeking a dismissal of Plaintiffs’ state law counts, Defendants
preliminarily contend that “because the §§ 1983 and 1985(3) claims should be
dismissed with prejudice, this Court should dismiss the Alabama law tort claims
asserted by Plaintiff without prejudice pursuant to 28 U.S.C. § 1367(c)(3), which
gives this Court authority to ‘decline to exercise supplemental jurisdiction over
[state law] claim ... if the district court has dismissed all claims over which it has
original jurisdiction.’” (Doc. 35 at 31-32). Plaintiffs have not argued against such
a dismissal. Accordingly, Defendants’ Motion is hereby GRANTED and
Plaintiffs’ remaining state law claims for false imprisonment (Count Nine), for
44
malicious prosecution (Count Eleven), for abuse of process (Count Twelve), and
for conspiracy to commit these torts (Count Sixteen) will be dismissed without
prejudice.
IV.
CONCLUSION
For the reasons set out above, the Defendants’ Motion is hereby due to be
GRANTED. A separate final judgment order will be entered.
DONE and ORDERED this the 26th day of September, 2017.
VIRGINIA EMERSON HOPKINS
United States District Judge
45
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