Warren v. Birmingham, City of et al

Filing 184

MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 7/31/13. (SAC )

FILED
2013 Jul-31 PM 03:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

ANTHONY WARREN ,
Plaintiff
vs.
CITY OF BIRMINGHAM, ALABAMA, et al.
Defendants

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CASE NO. 2:09-cv-1025-JHE

MEMORANDUM OPINION

This case comes before the court on the magistrate judge’s five reports and
recommendations (docs. 166, 167, 168, 169, and 173); the parties’ objection to those reports and
recommendations (docs. 171, 174, 175, 176, and 179); the magistrate judge’s order commenting
on the parties’ objections to the five reports and recommendations (doc. 181); and the underlying
motions for summary judgment of Defendants City of Birmingham, A.C. Roper, Heath Boackle,
Thomas Cleveland, Kenneth Prevo, Alvin Fortson, Dexter Cunningham, Frank Majors, Gary
Finley, and Jamal McCaskey (docs. 107, 108, 111, 115, 118, 122, and 126). Plaintiff Anthony
Warren’s civil action against the City of Birmingham, its police officers, and its Chief of Police,
and the City of Hoover and one of its police officers arise from a high speed chase that
culminated in an alleged assault on Mr. Warren, which was captured on video. Mr. Warren
alleges that the Defendants used excessive force in violation of his constitutional rights, among
other wrongful conduct, and withheld the video evidence of his assault.
The court has thoroughly reviewed the extensive record in this case and the many briefs

filed by the parties, as well as the magistrate judge’s reports and recommendations, objections
thereto, and subsequent submissions. Because the magistrate judge issued five separate reports
and recommendations, the court will take each in turn.
I.

Alvin Fortson
On January 12, 2012, the magistrate judge entered his report and recommendation as to

Defendant Alvin Fortson. (Doc. 166). The magistrate judge recommended that Fortson’s motion
for summary judgment as to Count IV for unlawful search and seizure should be denied and that
his motion for summary judgment as to Count VII for negligent initiation of a high speed pursuit
be granted. Defendant Alvin Fortson filed his objections to the magistrate judge’s report and
recommendation denying summary judgment on Count VI on January 26, 2012. (Doc. 171). In
his order commenting on the objections, the magistrate judge concluded that because of
Fortson’s inconsistent versions of the evidence, a reasonable jury could find an unlawful search
and seizure, and thus the motion for summary judgment as to Count VI should be denied. (Doc.
181, at 11).
After careful consideration of the record involving Fortson and the magistrate judge’s
report and recommendation, the court hereby ADOPTS the report of the magistrate judge. The
court further ACCEPTS the recommendations of the magistrate judge, and, therefore, will
GRANT Defendant Fortson’s motion for summary judgment on Count VII for negligent
initiation of a high speed pursuit and will DENY Defendant Fortson’s motion for summary
judgment on Count VI for unlawful search and seizure. (Doc. 108).
II.

Kenneth Prevo
On January 17, 2012, the magistrate judge entered his report and recommendation as to

Defendant Kenneth Prevo. (Doc. 167). The magistrate judge first recommended that Prevo’s

motion for summary judgment be granted for any claims made against Prevo in his official
capacity. The magistrate judge also recommended that the motion for summary judgment as to
Count I for excessive force against Prevo in his individual capacity should be denied; the motion
for summary judgment as to Count II for assault and battery against Prevo in his individual
capacity should be denied; the motion for summary judgment as to Count III for failure to
intervene against Prevo in his individual capacity should be granted; the motion for summary
judgment as to Count IX for civil conspiracy against Prevo in his individual capacity should be
granted; and the motion for summary judgment as to Count XI for outrageous conduct against
Prevo in his individual capacity should be denied. On February 7, 2012, Defendant Kenneth
Prevo filed his objections to the magistrate judge’s report and recommendation arguing that he
had not abandoned any argument on the outrage claim and was entitled to qualified and
discretionary immunity. (Doc. 175).
In his order commenting on the objections, the magistrate judge concluded that Prevo
abandoned any argument on the outrage claim because he did not address Count XI, the outrage
claim, in his brief, and that summary judgment was due to be denied. (Doc. 181, at 14). The
magistrate judge also concluded that Prevo was not entitled to discretionary immunity because he
intentionally kicked Mr. Warren and was not entitled to qualified immunity because a reasonable
jury find that a reasonable officer would conclude that kicking Mr. Warren was excessive force
under the circumstances. (Doc. 181, at 15).
After careful consideration of the record involving Prevo and the magistrate judge’s
report and recommendation, the court hereby ADOPTS the report of the magistrate judge. The
court further ACCEPTS the recommendations of the magistrate judge, and, therefore, will
GRANT the motion for summary judgment as to Defendant Prevo on all claims made against

him in his official capacity and on Counts III for failure to intervene and Count IX for outrage
made against him in his individual capacity. (Doc. 107). The court will DENY the motion for
summary judgment as to Defendant Prevo in his individual capacity on Count I for excessive
force, Count II for assault and battery, and Count XI for outrage.
III.

Dexter Cunningham, Frank Majors, Gary Finley, and Jamal McCaskey
On January 19, 2012, the magistrate judge entered his report and recommendation as to

Defendants Dexter Cunningham, Frank Majors, Gary Finley, and Jamal McCaskey. (Doc. 168).
Mr. Warren brought three claims against this group of defendants based on the alleged
suppression of evidence in the criminal prosecution of Mr. Warren: Count VIII for denial of due
process; Count IX for civil conspiracy; and Count XI for outrageous conduct. The magistrate
judge recommended that the motion for summary judgment be granted for all claims, made in
their official and individual capacities under the “law of the case” doctrine. On February 3, 2012,
Plaintiff Mr. Warren filed his objections to the magistrate judge’s report and recommendation
arguing that the report and recommendation did not sufficiently address the Plaintiff’s outrage
claim. (Doc. 174). In his order commenting on the objections, the magistrate judge concluded
that Mr. Warren’s outrage claim was sufficiently addressed in his report and recommendation
that adopted Judge Proctor’s prior opinion on the issue in this case. (Doc. 181, at 11).
After careful consideration of the record involving Cunningham, Majors, Finley, and
McCaskey, and the magistrate judge’s report and recommendation, the court hereby ADOPTS
the report of the magistrate judge. The court further ACCEPTS the recommendations of the
magistrate judge, and, therefore, will GRANT the motion for summary judgment as to this group
of defendants on all claims made against them in both their official and individual capacities.
(Doc. 111). The court will ENTER JUDGMENT for Cunningham, Majors, Finley, and

McCaskey and against Mr. Warren and will DISMISS Defendants Cunningham, Majors, Finley,
and McCaskey as parties to this case.
IV.

Heath Boackle and Thomas Cleveland
On January 20, 2012, the magistrate judge entered his report and recommendation as to

Defendants Heath Boackle and Thomas Cleveland. (Doc. 169). Mr. Warren brought five claims
against these two defendants: Count I for excessive force; Count II for assault and battery; Count
III for failure to intervene; Count IX for civil conspiracy; and Count XI for outrageous conduct.
The magistrate judge first recommended that the motion for summary judgment be granted for
any claims made against Boackle and Cleveland in their official capacities. The magistrate judge
also recommended that the motion for summary judgment as to Count I for excessive force
against Boackle and Cleveland in their individual capacities should be denied; the motion for
summary judgment as to Count II for assault and battery against Boackle and Cleveland in their
individual capacities should be denied; the motion for summary judgment as to Count III for
failure to intervene against Boackle and Cleveland in their individual capacities should be
granted; the motion for summary judgment as to Count IX for civil conspiracy against Boackle
and Cleveland in their individual capacities should be granted; and the motion for summary
judgment as to Count XI for outrageous conduct against Boackle and Cleveland in their
individual capacities should be denied.
On February 9, 2012, Heath Boackle filed his objections to the magistrate judge’s report
and recommendation arguing that he was entitled to qualified and discretionary immunity. (Doc.
176). Thomas Cleveland did not file any objection to the magistrate judge’s report and
recommendation. In his order commenting on the objections, the magistrate judge concluded that
because Boackle provided no new evidence or legal argument in his objection, his

recommendation was unaffected by the objections. (Doc. 181, at 28).
After careful consideration of the record involving Boackle and Cleveland and the
magistrate judge’s report and recommendation, the court hereby ADOPTS the report of the
magistrate judge. The court further ACCEPTS the recommendations of the magistrate judge,
and, therefore, will GRANT the motion for summary judgment as to Defendants Boackle and
Cleveland on all claims made against them in their official capacities and on Count III for failure
to intervene and Count IX for outrage made against them in their individual capacities. (Docs.
122, 126). The court will DENY the motion for summary judgment as to Defendants Boackle
and Cleveland in their individual capacities on Count I for excessive force, Count II for assault
and battery, and Count XI for outrage.
VI.

The City of Birmingham and A.C. Roper
On February 2, 2012, the magistrate judge entered his report and recommendation as to

Defendants City of Birmingham and Police Chief A.C. Roper. (Doc. 173). Mr. Warren brought
eleven claims against the City: Count I for excessive force; Count II for assault and battery;
Count III for failure to intervene; Count IV for failure to supervise; Count V for inadequate
training; Count VI for unlawful search and seizure under the Fourth and Fourteenth
Amendments; Count VII for initiation of a high speed pursuit; Count VIII for denial of due
process; Count IX for civil conspiracy; Count X for deliberate indifference; and Count XI for
outrage. The magistrate judge recommended that the City’s motion for summary judgment be
granted as to all claims.1 The magistrate judge recommends that Mr. Warren’s failure to
supervise, inadequate training, and deliberate indifference claims should be dismissed because

1

The magistrate judge found Counts I, II, III, VI, VII, X, and XI abandoned because Mr.
Warren made no attempt to argue the merits of those claims against the City. (Doc. 173, at 27).

Mr. Warren did not produce any evidence of a prior incident that establishes the City had a
pattern or practice of unlawful conduct or that would put the City on notice of the need for
training or discipline of excessive force violations.
Mr. Warren brought seven claims against Roper in both his individual and official
capacities: Count III for failure to intervene; Count IV for failure to supervise; Count V for
inadequate training; Count VIII for denial of due process; Count IX for civil conspiracy; Count X
for deliberate indifference; and Count XI for outrage. The magistrate judge recommended that
Roper’s motion for summary judgment be granted as to all claims because Roper was entitled to
qualified immunity and for the same reasons the City’s motion for summary judgment should be
granted.2
On February 23, 2012, Mr. Warren filed his objection to the magistrate judge’s report and
recommendation arguing that the report and recommendation “displays a judicial condonation of
Birmingham Police Officers’ egregious beating of an unarmed and unconscious man while other
officers and Supervisors watched.” (Doc. 179, at 1). In response, the City of Birmingham and
A.C. Roper filed a motion to strike Mr. Warren’s objections arguing that Mr. Warren’s legal
contentions were not warranted by existing law and that his factual contentions lacked
evidentiary support. (Doc. 180). On November 16, 2012, the magistrate judge denied the motion
to strike and allowed Mr. Warren’s objections to remain on the record. In his order commenting
on the objections, the magistrate judge concluded that because Mr. Warren did not provide any
persuasive new evidence or legal argument in his objection, his recommendation was unaffected
by the objections. (Doc. 181, at 41).

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The magistrate judge found Counts III, IX, and XI abandoned because Mr. Warren made
no attempt to argue the merits of those claims against Defendant Roper. (Doc. 173, at 31).

After careful consideration of the record involving the City and Roper and the magistrate
judge’s report and recommendation, the court hereby ADOPTS the report of the magistrate
judge. The court further ACCEPTS the recommendations of the magistrate judge, and, therefore,
will GRANT the motion for summary judgment as to all claims against the City of Birmingham
and A.C. Roper, in his official and individual capacities. (Docs. 115, 118). The court will
ENTER JUDGMENT for the City of Birmingham and A.C. Roper and against Mr. Warren, and
will DISMISS the City and Roper as parties to this case.
VI.

Remaining Claims
Defendants City of Hoover and Norm McDuffy were dismissed from this case on August

13, 2010, and any claims alleged against those defendants no longer remain before the court.
(Doc. 62). Upon entry of the accompanying order, Defendants Dexter Cunningham, Frank
Majors, Gary Finley, Jamal McCaskey, A.C. Roper, and the City of Birmingham are no longer
parties to this case, and any count alleged against just those defendants no longer remains before
the court. Defendants Barrett Dewitt and David Doran did not file motions for summary
judgment, and any count alleged against them in their individual and official capacities remains
before the court.
The following claims remain before the court: Count I for excessive force against
Boackle, Cleveland, Dewitt, Doran, and Prevo in their individual capacities, and Dewitt and
Doran in their official capacities; Count II for assault and battery against Boackle, Cleveland,
Dewitt, Doran, and Prevo in their individual capacities, and Dewitt and Doran in their official
capacities; Count III for failure to intervene against Dewitt and Doran in their official and
individual capacities; Count VI for unlawful search and seizure under the Fourth and Fourteenth
Amendments against Fortson; Count IX for civil conspiracy against Dewitt and Doran in their

individual and official capacities; and Count XI for outrage against Boackle, Cleveland, Dewitt,
Doran, and Prevo in their individual capacities and Dewitt and Doran in their official capacities.
DONE and ORDERED this 31st day of July, 2013.

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KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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