Higginbotham v. City of Pleasant Grove, the et al

Filing 41

MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 9/30/13. (SAC )

FILED
2013 Sep-30 PM 04:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

BARRY C. HIGGINBOTHAM,
Plaintiff,
V.

THE CITY OF PLEASANT GROVE,
et. al,
Defendants.

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Civil Action Number
CV-12-BE-252-S

MEMORANDUM OPINION
This Section 1983 case, filed by a pro se Plaintiff, comes before the court on six motions
to dismiss filed by all remaining Defendants: “Motion to Dismiss” filed by the Pleasant Grove
Police Department (doc. 24), requesting the dismissal of all claims against it with prejudice;
“Motion to Dismiss Official Capacity Claims” filed by Mayor Brasseale, Sergeant Roberts,
Officer Bullard, Officer Reed, Officer Grigsby, and Officer Lawson (doc. 25); “Motion to
Dismiss” filed by Mayor Brasseale and Director Knight (doc. 26), requesting the dismissal with
prejudice of all claims against them in their individual capacities; “Motion to Dismiss” filed by
the City of Pleasant Grove (doc. 28); “Motion to Dismiss” filed by Officer Grigsby (doc. 30),
requesting the dismissal with prejudice of all claims against him in his individual capacity; and
“Motion for Partial Dismissal” filed by Sergeant Roberts, Officer Bullard, Officer Reed, and
Officer Lawson (doc. 31), requesting the dismissal with prejudice of all claims against them in
their individual capacities, except those asserted in Count Six against Officers Roberts, Bullard,

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and Reed.
For the reasons stated in this Memorandum Opinion, the court FINDS as follows: that the
Pleasant Grove Police Department’s motion to dismiss (doc. 24) is due to be GRANTED; that
the motion to dismiss official capacity claims (doc. 25) is due to be GRANTED; that the motion
to dismiss individual claims against Officer Grigsby (doc. 30) is due to be GRANTED; that the
other motions (docs. 26, 28, & 31) are due to be GRANTED IN PART and DENIED IN PART.
The following Defendants are due to be DISMISSED as party Defendants: Pleasant Grove Police
Department, Officers Grigsby and Lawson, and Director Knight.
I. BACKGROUND
On January 24, 2012, the Plaintiff, Barry Higginbotham, filed a 63 page Complaint (doc.
1) against 23 Defendants containing five counts; a “Judicial Notice” (doc. 2), advising the
Defendants that he was proceeding pro se; a motion to proceed in forma pauperis (doc. 3); and
“Motion to Quash Arrest and Stay Court” (doc. 4), claiming that his arrest criminally violated his
federal civil rights. On April 17, 2012, the Plaintiff filed a “Motion to Quash Probation Order”
(doc. 5), alleging, among other things, that the Order’s issuance “constitutes the crime of
extortion in the first degree” and violated a number of the Plaintiff’s constitutional rights. He
also filed documents and affidavits in support of those claims (doc. 6). The 23 Defendants
included the City of Pleasant Grove and a number of its city officials and police officers as well
as judges and a prosecutor.
On August 15, 2012, this court entered an Order (doc. 7) denying the motions to quash,
and granting the motion to proceed as a pauper. Further, because the court has an obligation to
review sua sponte the merits of in forma pauperis matters, the court’s Order (doc. 7), as
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subsequently clarified and modified (doc. 9), dismissed all claims in the Complaint, some with
prejudice and some without prejudice. (Doc. 7). On September 14, 2012, the Plaintiff filed an
Amended Complaint (doc. 10) and then, on September 24, 2012, a Second Amended Complaint
(doc. 13).
The Second Amended Complaint contains eleven counts: Count One - a claim for
unlawful search and seizure in violation of his constitutional rights; Count Two - a claim for
excessive use of force based on alleged actions of Defendants Bullard, Reed, and Roberts, in
violation of his constitutional rights; Count Three - a claim for inadequate training and
supervision against the City of Pleasant Grove, Mayor Brasseale, Director Knight; Count Four - a
claim that the City of Pleasant Grove, its Police Department, Mayor Brasseale and Director
Knight were deliberately indifferent to the Plaintiff’s constitutional right based on the custom and
policy of tolerating excessive force and unlawful searches and seizures on the part of Pleasant
Grove police officers; Count Five - a claim for the tort of outrage; Count Six - a claim based on
the alleged assault of the Plaintiff by Defendants Bullard, Reed, and Roberts; Count Seven - a
claim based on the alleged false arrest and false imprisonment of the Plaintiff by Defendant Reed
and the City of Pleasant Grove; Count Eight - a claim for the alleged violation of the Plaintiff’s
due process rights under the Fifth, Sixth, and Fourteenth Amendments; Count Nine - a claim for
the alleged malicious abuse of process and malicious prosecution by Defendant Reed, the
Pleasant Grove Police Department, and the City of Pleasant Grove; Count 10 - a claim alleging
the defamation of the Plaintiff’s character by Defendants Roberts and the Pleasant Grove Police
Department; and Count Eleven - a claim that the City of Pleasant Grove and the Pleasant Grove
Police Department subjected the Plaintiff to double jeopardy.
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On October 4, 2013, the court entered an Order finding that the Second Amended
Complaint complies with Rule 8 of the Federal Rules of Civil Procedure. (Doc. 14). On
November 27, 2012, the remaining Defendants filed the motions to dismiss currently under
consideration. The court stayed discovery and obligations under Rule 26 pending resolutions of
those motions. (Doc. 34).
II. STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss attacks the legal sufficiency of the complaint. The
motion to dismiss in the instant case attacks the sufficiency of the Second Amended Complaint
filed by a pro se plaintiff. Although the court is required to show leniency to a pro se plaintiff’s
pleadings, his complaint is still “subject to the relevant law and rules of court, including the
Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). Pro
se complaints must “comply with the procedural rules that govern pleadings.” Beckwith v.
Bellsouth Telecomms. Inc., 146 Fed. Appx. 368, 371 (11th Cir. 2005).
Generally, the Federal Rules of Civil Procedure require only that the complaint provide
“‘a short and plain statement of the claim’ that will give the defendant fair notice of what the
plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47
(1957) (quoting Fed. R. Civ. P. 8(a)). A plaintiff must provide the grounds of his entitlement,
but Rule 8 generally does not require “detailed factual allegations.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley, 355 U.S. at 47). It does, however, “demand[ ] more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). Pleadings that contain nothing more than “a formulaic recitation of the
elements of a cause of action” do not meet Rule 8 standards nor do pleadings suffice that are
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based merely upon “labels or conclusions” or “naked assertions” without supporting factual
allegations. Twombly, 550 U.S. at 555, 557.
The Supreme Court explained that “[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Iqbal, 556 U.S. at 678 (quoting and explaining its decision in Twombly, 550 U.S. at 570).
To be plausible on its face, the claim must contain enough facts that “allow[ ] the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678. Although “[t]he plausibility standard is not akin to a ‘probability requirement,’” the
complaint must demonstrate “more than a sheer possibility that a defendant has acted
unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant’s
liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 557).
The Supreme Court has recently identified “two working principles” for the district court
to use in applying the facial plausibility standard. The first principle is that, in evaluating
motions to dismiss, the court must assume the veracity of well-pleaded factual allegations;
however, the court does not have to accept as true legal conclusions even when “couched as []
factual allegation[s]” or “threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements.” Iqbal, 556 U.S. at 678.

The second principle is that “only a

complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. Thus,
under prong one, the court determines the factual allegations that are well-pleaded and assumes
their veracity, and then proceeds, under prong two, to determine the claim’s plausibility given the
well-pleaded facts. That task is “context-specific” and, to survive the motion, the allegations
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must permit the court based on its “judicial experience and common sense. . . to infer more than
the mere possibility of misconduct.” Id. If the court determines that well-pleaded facts, accepted
as true, do not state a claim that is plausible, the claim must be dismissed. Id.
III. FACTS
The Second Amended Complaint contains 27 single-spaced pages of facts. The court will
attempt to condense them.
Higginbotham states in his pleading that he has been a member of the National Alliance
on Mental Illness (NAMI) for the last fourteen years. Higginbotham is not a resident of the City
of Pleasant Grove. Several members of the NAMI reside in Pleasant Grove, however, and
Higginbotham indicates that the existence of relationships with NAMI residents of Pleasant
Grove is one of the reasons he visits Pleasant Grove frequently.
According to the Second Amended Complaint, the genesis of Higginbotham’s
complicated feud with the Pleasant Grove police department and city officials occurred on March
27, 2010 when he began visiting Bill Howard in Pleasant Grove. Based upon what police
officers later told Higginbotham, the Pleasant Grove police identified Howard as a drug dealer
after several people supposedly suffered from drug overdoses at Howard’s residence. The
Pleasant Grove Municipal Judge, Mayor Jerry Brasseale, the City Council, and Sergeant Ed
Rogers of the Pleasant Grove Police Department allegedly issued orders to city police officers to
stop, identify, and search every vehicle and individual visiting the Howard residence. The police
officers repeatedly accused Higginbotham of being a drug dealer himself, although he denies that
he takes drugs or is a drug dealer; officers would continually make comments like “You just left
Bill Howard’s House...That makes you a g—damned heroin dealer or a g—damned junkey” or
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“You’re just as sorry as the trash you run around with....”
Higginbotham’s pleading chronicles the alleged harassment that often occurred when he
entered the Pleasant Grove City limits to visit Howard or another friend, Chris Gardner. Because
of the number of incidents involving various Pleasant Grove officers, the court will provide more
details of the individual incidents of harassment as it discusses claims against each Defendant.
Generally, however, the harassment took the form of police following, stopping, searching, often
ticketing, and once arresting Higginbotham when he visited Pleasant Grove. A second arrest
occurred at Higginbotham’s home but was based on an incident occurring in Pleasant Grove.
One officer warned Higginbotham that he would receive a ticket every time officers observed
him in the area, and police did indeed issue Higginbotham tickets on multiple occasions. On
other occasions, officers allegedly pulled guns from the holsters during stops of Higgibotham,
cursed at him and called him names, stole $20 from his van’s glove compartment, and one officer
threatened to kill Higginbotham if he filed charges. When Higginbotham’s van was impounded
in September of 2010 in connection with his arrest in Pleasant Grove, he later picked up his van
from the wrecker service and discovered that in the interim period someone had tampered with
his van: his radiator drain valve had been opened; both radiator hoses had been loosened; the
van’s engine was damaged, the heads were cracked; four bolts that held the van’s water pump in
place had been loosened allowing the engine block to be moved.
Higginbotham began lodging complaints about the police harassment as early as April of
2010, sending letters to Mayor Brasseale on April 1, 2010 and October 4, 2010, notifying him of
this treatment and asserting that the city, among others, had violated his constitutional rights.
Higginbotham received no response to these letters. On January 3, 2011, and May 6, 2011, he
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also sent a letter of complaint directed to the City of Pleasant Grove itself about his treatment by
the Pleasant Grove police department, demanding a police investigation and complaining of
constitutional violations, including the denial of his right to appeal convictions, but he received
no response to these letters, either.
During this period of harassment, Pleasant Grove police officers arrested Higginbotham
twice: on September 19, 2010 and on September 27, 2011. On September 19, 2010, he was
arrested and charged with carrying a concealed weapon, and eventually found not guilty; criminal
possession of Tagamet and Paxil, and eventually found guilty; and operating a motor vehicle
without a tag light, and eventually found guilty. He remained in jail until September 21, 2010,
when he was able to post bond. On other occasions, Higginbotham was also charged and
eventually found guilty of two counts of failure to use a turn signal. For these offenses, on April
19, 2011, Judge Ralph Coleman in Pleasant Grove Municipal Court fined him approximately
$1,000, and advised him that the last day to file an appeal to Jefferson County was May 3, 2011.
At the hearing before Judge Coleman, Higginbotham demanded that the police officers display
their dashcam videos from the incidents to verify Higginbotham’s version of the events. The
officers refused to do so and instead allegedly committed perjury in falsely recounting the
incidents. The municipal court judge ruled without the benefit of the dashcam video information.
However, Higginbotham claims that this record of his conviction mysteriously disappeared.
In late April of 2011, a tornado caused damage in Pleasant Grove, and in the days after
the tornado Higginbotham performed volunteer work with several members of the NAMI group
at Chris Gardner’s property in Pleasant Grove. National Guard soldiers established check points
around the storm-damaged areas. Although Higginbotham was allowed to enter and leave the
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area on many occasions, on April 30, 2011 (or the wee hours of the morning on May 1, 2011), he
was stopped by a group of officials, including Sergeant Roberts and others, who identified
themselves as U.S. Marshals. As more fully recounted later in this opinion, Roberts accused
Higginbotham of being a heroin dealer, issued him a citation for driving on bald tires, and
ordered him to stay out of Pleasant Grove except to pay the ticket. When Higginbotham
explained that he needed to come to the courthouse on Tuesday, May 3 to appeal a previous
conviction, Roberts told him he could not come into Pleasant Grove on Tuesday and promised: “I
will issue a written order to every checkpoint that you are NOT allowed to enter Pleasant Grove,
and I will have it signed by the Mayor.” One of the U.S. Marshals similarly ordered him to stay
out of Pleasant Grove or be subject to arrest.
On May 3, 2011, when Higginbotham attempted to enter the City of Pleasant Grove to
file an appeal, National Guard Soldiers advised him that he was not allowed to enter the City of
Pleasant Grove upon orders from the U.S. Marshal’s Officer, the Pleasant Grove Police
Department, Sergeant Ed Roberts, and the Mayor’s Office. Even though Higginbotham advised
the soldiers that he had legal business at the courthouse, the soldiers forced Higginbotham to turn
around and leave the city limits. Higginbotham claims that the courthouse was open for business
on May 3, 2011.
Higginbotham was also arrested on September 27, 2011 for bail jumping, and violating
his probation, although he claims that he had not jumped bail and he was not on probation. The
next day, a Pleasant Grove magistrate judge told him that she was addressing the claims for
criminal possession of prescription drugs, carrying a concealed weapon, failure to use a turn
signal, failure to carry proof of insurance, and operating a motor vehicle with bald tires.
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Higginbotham advised her that judgment had already been entered on some of those charges,
including findings that he was guilty on some charges, and he further advised her that he had
been turned away from Pleasant Grove when he attempted to go to the courthouse and appeal that
judgment. However, the magistrate judge had no documentation concerning the previous hearing
and the findings nor did she have any record of the complaint letters he had sent to the mayor and
the city advising that he had been prevented from appealing the convictions. Higginbotham
alleges that the September arrest warrant was a malicious response to Higginbotham’s letter of
complaint.
Higginbotham remained in jail through October 12, 2011, when he was released on bond.
On January 24, 2012, the city placed Higginbotham on probation. His conviction for illegal
possession of prescription drugs was not included in the probation order. The city forwarded
four traffic tickets to Judicial Correction Services of Hueytown for collection. When
Higginbotham met with officials at Judicial Correction Services, the officials stated that they had
no record of the conviction and the $1,000 fine that Judge Coleman imposed. Higginbotham
alleges that the city “did NOT want the plaintiff charged with bail jumping... NOR did it want the
plaintiff charged with operating a vehicle with bald tires. “ (Doc. 13, at 26). The court cannot
discern exactly what Higginbotham means by that statement nor can it discern exactly what
traffic tickets were referred to collection services.
IV. DISCUSSION
These motions were difficult to address for many reasons. First, they are difficult because
they challenge a 34-page pleading that reads like a nightmarish law school exam with potential
constitutional violations threaded throughout its single-spaced pages. Second, the plaintiff who
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wrote the pleading is pro se, which means not only that the claims are more difficult to discern
but also that the court must accord leniency to them despite that difficulty. See Hughes v. Lott,
350 F.3d 1157, 1160 (11th Cir. 2003). Finally, the Defendants ignore or give short shrift to
some claims in their briefs, apparently assuming that those claims are not plausible; thus, the
Defendants do not always provide the court with the case law and analysis that would be helpful
to address these claims. The court may not, however, ignore or give short shrift to any claims
that meet the standard in Iqbal and Twombly, and even if the claims do not meet that pleading
standard, the court must, at the very least, apply the standard and determine whether the facts
alleged meet its requirements.
The court will proceed to discuss the six motions to dismiss filed in this action.
A. “Motion to Dismiss Filed by the Pleasant Grove Police Department” (doc. 24)
Defendant Pleasant Grove Police Department requests dismissal because, as it points out
in its motion, the police department is not a suable entity. Rule 17 of the Federal Rules of Civil
Procedure provides that the “capacity to sue or be sued [is to] be determined by the law of the
state in which the district court is held.. . .” Fed R. Civ. P. 17(b); see Dean v. Barber, 951 F.2d
1210, 1214 (11th Cir. 1992). As this court sits in the Northern District of Alabama, the court
turns to Alabama law, that provides that police departments are generally not legal entities to be
sued. See, e.g., Ex parte Dixon, 55 So. 3d 1171, 1171-72 & n. 1 (Ala. 2010); see also Ex Parte
Haralson, 853 So. 2d 928, 931 (Ala. 2003) (“[U]nder Alabama law ... the sheriff’s department is
not a legal entity subject to suit.”); Dean v. Barber, 951 F.2d at 1214 (noting that “sheriffs
departments and police departments are not usually considered legal entities subject to suit”).
Further, the Plaintiff makes no objection to the dismissal of the police department as a
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Defendant. (Doc. 37, at 1 ¶ 1). Accordingly, the court FINDS that the department’s motion is
due to be GRANTED and the Pleasant Grove Police Department is due to be DISMISSED
WITH PREJUDICE.
B. Motion to Dismiss Official Capacity Claims (doc. 25)
In this motion, Mayor Breasseale, Director Knight, Sergeant Roberts, and Officers
Bullard, Reed, Grigsby, and Lawson request that this court dismiss all claims against them in
their official capacities. As those Defendants point out, the law is well-settled that “officialcapacity suits ... ‘generally represent only another way of pleading an action against an entity of
which an officer is an agent.’ As long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated
as a suit against the entity.” Hardy v. Town of Hayneville, 50 F. Supp. 2d 1176, 1184-85 (M.D.
Ala. 1999) (quoting Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citations omitted)).
Thus, because official capacity suits are, in essence, suits against the government entity, and
further, because the United States Supreme Court has recognized that local governments are
subject to suit for monetary damages and for injunctive and declaratory relief, the Court has also
recognized that official capacity suits against suable government entities are redundant and
unnecessary. Graham, 473 U.S. at 167 n. 14 (stating “there is no longer a need to bring officialcapacity actions against local government officials for ... local government units can be sued
directly for damages and injunctive and declaratory relief”).
In the instant case, Higginbotham sued the City of Pleasant Grove as one of the list of
Defendants, and it is a suable entity regardless of whether the particular claims against it remain
viable after the rulings on its motion to dismiss. Based on the Supreme Court’s direction, the
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court FINDS that the official capacity claims against the City’s officials are redundant and
unnecessary. Therefore, the court GRANTS the motion and DISMISSES WITH PREJUDICE
the official capacity claims asserted against Mayor Brasseale, Director Knight, Sergeant Roberts
and Officers Bullard, Reed, Grigsby, and Lawson.
The court acknowledges Higginbotham’s objections to the dismissal of the official
capacity claims. (Doc. 37, at 1 ¶ 2). However, the cases Higginbotham cites in support of his
objections are inapposite and do not support the retention of such official capacity claims. The
court notes that this particular problem would not be helped by giving Higginbotham an
opportunity to submit evidence and re-plead, because this issue is one of law.
C. Motions to Dismiss Individual Capacity Claims
The Defendants sued individually have filed three separate sets of motions to dismiss: (1)
“Motion to Dismiss” filed by Officer Grigsby (doc. 30); (2) “Motion for Partial Dismissal” filed
by Sergeant Roberts and Officers Bullard, Reed and Lawson (doc. 31); and (3) “Motion to
Dismiss filed by Mayor Brasseale and Director Knight (doc. 26).
While the court will address most of these motions separately, one claim addressed in all
of these motions is the state law claim of tort of outrage asserted in Count Five, and, because of
the Alabama Supreme Court has set narrow parameters to that cause of action, this court will first
address that claim as to all the individual Defendants.
1. Issues that Apply to Multiple Motions to Dismiss Individual Capacity Claims
a. Tort of Outrage
A plaintiff successfully asserting the tort of outrage under Alabama law must show that
the defendants engaged in conduct that “(1) was intentional or reckless; (2) was extreme and
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outrageous; and (3) caused emotional distress so severe that no reasonable person could be
expected to endure it.” Ex parte Bole, 103 So. 3d 40, 52 (Ala. 2012) (quoting Green Tree
Acceptance, Inc. v. Standridge, 565 So. 2d 38, 44 (Ala. 1990)). In the seminal case establishing
the tort, American Road Service Co. v. Inmon, the Supreme Court explained that the alleged
conduct must be “so outrageous in character and so extreme in degree as to go beyond all bounds
of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.”
American Road Serv. Co. v. Inmon, 394 So. 2d 361, 365 (Ala. 1980). The Alabama Supreme
Court has characterized this tort as “an extremely limited cause of action” and, over the years, the
Court recognized three discrete categories of conduct that would fall within the tort: “‘(1)
wrongful conduct in the family-burial context, Whitt v. Hulsey, 519 So. 2d 901 (Ala. 1287); (2)
barbaric methods employed to coerce an insurance settlement, National Sec. Fire & Cas. Co. v.
Bowen, 447 So. 2d 133 (Ala. 1983); and (3) egregious sexual harassment, Busby v. Truswal Sys.
Corp., 551 So. 2d 322 (Ala. 1989).’” Ex parte Bole, 103 So. 3d at 52 (quoting Potts v. Hayes,
771 So. 2d 462, 465 (Ala. 2000)); see also O’Rear v. B.H., 69 So. 3d 106 (Ala. 2011) (affirming
a judgment on an outrage claim brought against a family physician who began counseling a
teenaged male patient at the mother’s request and, through the vehicle of the counseling, gave the
boy addictive prescription drugs in exchange for homosexual sex).
In the instant case, the conduct alleged varies among the Defendants. However, the court
FINDS that the allegations of the Second Amended Complaint are insufficient to state a claim for
relief under this limited theory of liability. None of the conduct alleged in the instant case –
harassment, search and seizure, use of force against Higginbotham – falls within the categories of
circumstances that the Supreme Court of Alabama has recognized as constituting the tort of
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outrage. And, none of the conduct is otherwise commensurate with the type of egregious
conduct that the Court has recognized as supporting a claim for the tort of outrage.
Accordingly, the court FINDS that the motions of the individual Defendants is due to be
GRANTED as to the tort of outrage claims; the court WILL DISMISS WITH PREJUDICE those
claims.
b. Qualified Immunity
Further, all of the individually named Defendants raise the defense of qualified immunity
as to the federal claims. Although the court will address the claims against each Defendant
individually, a general discussion of this defense is appropriate as it applies to all. The doctrine
of qualified immunity provides that a government official acting within his discretionary
authority is immune from suit unless his conduct “violates clearly established [federal] statutory
or constitutional rights of which a reasonable person would have known.” Keating v. City of
Miami, 598 F.3d 753, 762 (11th Cir. 2010) (quoting GJR Invs., Inc. v. County of Escambia, 132
F.3d 1359, 1366 (11th Cir. 1998) (alteration in original)). “The purpose of this immunity is to
allow government officials to carry out their discretionary duties without the fear of personal
liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is
knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)
(internal citation and quotation omitted). To prove his entitlement to qualified immunity, the
“public official must first prove that he was acting within the scope of his discretionary authority
when the allegedly wrongful acts occurred. . . . Once the defendant establishes that he was acting
within his discretionary authority, the burden shifts to the plaintiff to show that qualified
immunity is not appropriate.” Penley v. Eslinger, 605 F.3d 843, 849 (11th Cir. 2010) (quoting
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Lee v. Ferraro, 284 F.3d at 1194)).
To determine whether qualified immunity is then appropriate, the Supreme Court has
established a two-part test and has granted the district court discretion about the order in which it
addresses each part. Pearson v. Callahan, 555 U.S. 223, 236 (2009). One part of the test is
“whether [the] plaintiff’s allegations, if true, establish a constitutional violation.” Hope v.
Pelzer, 536 U.S. 730, 736 (2002) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001) modified by
Pearson v. Callahan, 555 U.S. at 236). Another part of the test is whether the constitutional
violation was clearly established at the time of the alleged wrongful conduct. Saucier, 533 U.S.
at 201. The government official is entitled to qualified immunity unless the plaintiff establishes
both parts of the test.
The court notes that it should address the qualified immunity issue at this motion-todismiss stage, if possible, rather than waiting to address it for the first time at the summary
judgment stage. Because the immunity covers immunity from suit, not simply from liability, and
is also meant to shield officials from the burdens of litigation, the Supreme Court has repeatedly
stressed that courts should address the qualified immunity issue at the “‘earliest possible stage.’”
See Pearson, 555 U.S. at 231 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).
The court also notes Defendants’ argument that – when the court addresses whether the
factual matter supporting the allegations in the Amended Complaint plausibly suggest a right to
relief – a heightened pleading standard applies because the case involves § 1983 claims asserted
against an individual raising qualified immunity. However, Defendants are wrong in claiming
that a heightened pleading standard applies after the case of Ashcroft v. Iqbal, 556 U.S. 662
(2009). As the Eleventh Circuit explained in its Randall v. Scott decision, “[a]fter Iqbal it is
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clear that there is no ‘heightened pleading standard’ as it relates to cases governed by Rule
8(a)(2), including civil rights complaints.” 610 F.3d 701, 710 (11th Cir. 2010). Three years after
Iqbal and two years after Randall, the time has come for counsel for the Defendants to remove
that outdated argument from their legal arsenal.
Because the doctrine of qualified immunity requires the application of the law to each fact
situation, the court will conduct an analysis of this doctrine based on the allegations stated
against each individual Defendant.
2. Officer Jonathan Grigsby (doc. 30)
The Plaintiff’s Second Amended Complaint lists Officer Jonathan Grigsby as a Defendant
in the style not only in his official capacity but also individually. As discussed previously, the
court will dismiss the tort of outrage claim and the official capacity claim against Grigsby. The
court will now address the federal claims against him in his individual capacity and his defense
of qualified immunity.
In the thirty-four pages of the Second Amended Complaint, Higginbotham mentions
Officer Grigsby five times: in the style; in ¶ 6, which simply lists the parties; and in three
paragraphs in the fact section: ¶ 31, which narrates the alleged events of September 19, 2010, as
set out below; in ¶ 35, as set out below; and in ¶ 70, as set out below. However, none of the
actual Counts refers to Grigsby. Some of the Counts specifically name Defendants and some
refer only generically to “Defendants” and purport to incorporate by reference all previous
paragraphs in the lengthy pleading. Thus, the court is unsure about which specific claims
Higginbotham intended to assert against Grigsby and which specific facts he intended to
incorporate by reference; the preceding paragraphs are numerous. Incorporating all preceding
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paragraphs by reference is not the preferred practice, because that practice requires the court to
assume and guess about the incorporation process. But Higginbotham is pro se. “Pro se
pleadings are held to a less stringent standard than pleadings drafted by attorneys and will,
therefore, be liberally construed.” Hughes v. Lott, 350 F.3d at 1160. Therefore, the court will
examine the facts alleged in ¶¶ 31, 35, and 70 to determine whether they state sufficient claims
against Grigsby.
Paragraph 31 states that on September 19, 2010, before Grigsby arrived at the scene in a
separate car, Officer Reed had allegedly already pulled over Higginbotham’s van, blinded
Higginbotham and passenger Chad Galloway with a spotlight, threatened them, and after
Higginbotham called 911 complaining about Reed’s treatment, Reed allegedly punched the hood
of the van, grabbed Higginbotham by the arm, required him to exit the van at gunpoint, violently
shoved Higginbotham into the side of the van, violently twisted his arm behind his back,
handcuffed him in a manner that caused considerable pain, and dragged him to the back of the
van to point out that his tag light was not working. At that point, Reed apparently arrested
Higginbotham and placed him in the police car1 while Reed began to search the van. Grigsby
subsequently arrived, and Higginbotham provides the following factual allegations specifically
against Grigsby:
31.....Officer Jonathan Grigsby arrived at this time, and asked Officer Reed what
was going on. The plaintiff alleges that Officer Reed made the loud statement, “He
tried to call the Sheriff’s Dept. on me... He’s going to pay for that”! The
1

Although the pleading does not state outright that Reed placed Higginbotham in the
police car, it states that Reed stated, “I am throwing you in jail,” then states that Reed “left the
Police Car, and began an illegal search of the plaintiff’s van,” and later states that Reed returned
to the police car with a gun he found in the van. This whole narrative reflects that Higginbotham
was secured in the police car at that time of the search. (Doc. 13, at 12).
18

plaintiff alleges that Officer Grigsby made no comment, nor took any action, after
hearing Officer Reed’s statement. The plaintiff alleges that Officer Reed returned to
the Police Car several minutes later, and that he had, in his possession, the
plaintiff’s papers, and other articles from the plaintiff’s glove compartment. The
plaintiff alleges that he watched both Officers search through his papers, and other
articles, on the trunk of the Police Car. The plaintiff alleges that he observed
Officer Mark Reed stuff the ($20) bill, mentioned in paragraph 13, into his left,
front, pants pocket. The plaintiff alleges that he also observed Officer Reed stuff
the plaintiff’s spare set of keys into this same pocket, as well, The plaintiff alleges
that after he observed these criminal actions, Officer Reed blinded him once again,
with his spotlight, and laughed hysterically. The plaintiff alleges that Officer Reed
then unrolled, and opened a paper pharmacy bag which contained the prescription
drug, Paxil. The plaintiff states that this Paxil had been prescribed to Debra Bates
of Pleasant Grove, and that he had been driving her to her doctor’s appointments,
and to Payless Drugs in Fairfield in order to get her prescriptions filled. The
plaintiff state that he had placed the Paxil in his glove compartment, the last time he
had driven Debra Bates to her doctor’s appointment. The plaintiff alleges that
Officer Reed then informed him that he would be charged with the criminal
possession of prescription drugs.
[The next paragraphs indicate that Officer Reed, not Grigsby, drove Higginbotham
to the Pleasant Grove Jail, and do not indicate that Grigsby had further involvement
with Higginbotham on that evening.]
(Doc. 13) (emphasis in original).
As to a separate incident, in ¶ 35, the plaintiff alleges as follows:
that Officer Jonathan Grigsby, having a legal duty to prevent the commission of
crimes, did willfully, deliberately, and with malice aforethought, allow Officer
Mark Reed to violate the plaintiff’s Federal Civil Rights. The plaintiff alleges
that Officer Grigsby’s inaction, alleged in paragraph 31, constitutes a conspiracy
to violate the plaintiff’s Federal Civil Rights, under 42 U.S.C. Section
1983.....The plaintiff alleges that Officer Grigsby was acting under “color of sate
law” when he deprived the plaintiff of his constitutional rights.”
(Doc. 13) (emphasis in original).
In ¶ 70, the plaintiff alleges as follows:
[A]t approximately 8:45 p.m. on September 27th of 2011, Officer Jonathan
Grigsby, Officer Stacy Lawson, and a third Pleasant Grove Police Officer, arrived
at [Higginbotham’s] residence with an arrest warrant. The plaintiff alleges that
19

this arrest warrant charged him with bail jumping, and violating his probation. The
plaintiff states that he had not jumped bail, because the City of Pleasant Grove was
responsible for denying him his right to make an appeal bond to the county, as
alleged in paragraphs 63, 64, 65, 66, and 69. The plaintiff states that he was
NOT on probation for any reason. The plaintiff alleges that this arrest constituted
an illegal seizure of the plaintiff, in violation of the Fourth Amendment, and the
Due Process Clause of the Fourteenth Amendment; And a violation of plaintiff
Fifth Amendment Right against Double Jeopardy. The plaintiff alleges that the
City of Pleasant Grove was acting under “color of state law” when it deprived him
of his constitutional rights.
(Doc. 13) (emphasis in original).
Having viewed these paragraphs while keeping in mind the leniency afforded to pro se
litigants, the court will assume that the Second Amended Complaint attempts to assert against
Officer Grigsby the following claims under § 1983: (1) illegal search and seizure in violation of
the Fourth and Fourteenth Amendments to the Constitution of the United States based on (a) the
search of Higginbotham’s van on September 19, 2010; and (b) Higginbotham’s arrest on
September 27, 2011; (2) conspiracy to commit search and seizure in violation of those same
Constitutional Amendments based on the September 19, 2010 search; (3) failure to intervene
when a duty to intervene allegedly existed.; and (4) due process violations. The court will
address these claims separately.
a. Illegal Search and Seizure
Officer Grigsby raises the defense of qualified immunity as to all federal claims against
him individually, including those involving illegal search and seizure. The court FINDS that
Officer Grigsby was acting within the scope of his discretionary authority when the allegedly
wrongful acts occurred related to search and seizure, and, thus, the burden shifts to
Higginbotham to prove that the imposition of immunity is not appropriate. To determine

20

whether he has done so, the court will discuss each incident separately.
(1) September 19, 2010 Search and Seizure
The first search and seizure incident upon which Higginbotham bases his claims against
Officer Grigsby occurred, if at all, on September 19, 2010. Because Officer Grigsby raises an
additional affirmative defense as to this incident – a statute of limitations defense – the court
will first address that defense. Officer Grigsby contends that any claims related to this incident
are barred because Higginbotham did not file suit until more than two years after the incident
occurred. He is correct that the two year statute of limitations applies, but is incorrect that
Higginbotham’s suit is not timely.
Higginbotham filed his first complaint timely, on January 24, 2012. (Doc. 1). The court
dismissed the claims in that complaint in August of 2012, but did not make clear at that time
whether it was dismissing the claims against Officer Grigsby. On September 14, 2012, the court
clarified its August 2012 order, confirming that it had indeed dismissed all claims against Officer
Grigsby, some with prejudice and some without, and the court gave Higginbotham a chance to
file an Amended Complaint. Later that same day – September 14, 2012 – which was several
days before the two-year statute ran, Higginbotham filed an Amended Complaint (doc. 10),
stating constitutional claims against Officer Grigsby relating to the September 19, 2012 search
and seizure incident. Thus, the officer is incorrect when he argues that as of September 19, 2012,
the court had dismissed Higginbotham’s claims against Grigsby and that Higginbotham had
failed to timely re-plead within the statute. Although Higginbotham later filed a Second
Amended Complaint on September 24, 2012 – after the statute had run – no dispute exists that
Higginbotham had filed his first amended complaint including this claim and the other claims
21

against Grigsby before the statute had run. Therefore, Officer Grigsby’s statute of limitations
defense is not well taken.
As to the qualified immunity defense for the incident of September 19, 2010, the court
has already determined that Grigsby was performing within the scope of his discretionary
authority, and he is, therefore, immune from suit unless Higginbotham’s alleged facts – if true –
would establish that he had violated clearly established law. Based on the allegations of the
Second Amended Complaint, Grigsby arrived after Reed had arrested Higginbotham and was in
the midst of searching Higginbotham’s van. The only “search and seizure” Grigsby conducted
on that occasion was assisting Reed in completing the search Reed had already begun after the
arrest. The court FINDS that based on the allegations of the Second Amended Complaint, a
reasonable officer in Grigsby’s position would not have known that Reed had conducted an
illegal arrest or an illegal search and seizure.
In the Second Amended Complaint, Higginbotham places great emphasis on the
statement Reed mad to Grigsby: “He [Higginbotham] tried to call the Sheriff’s Dept. on me...
He’s going to pay for that”! [sic]. Although Higginbotham relies on that statement as an
admission of wrongdoing, that statement does not itself specifically advise Grigsby that the arrest
was unconstitutional or otherwise improper. Further, it does not advise Grigsby that the search
conducted was without arguable probable cause or otherwise unconstitutional. For all Grigsby
knew, this statement meant that Higginbotham had tried to call the sheriff’s department as a
delaying tactic and act of belligerence when Reed was performing a by-the-book stop and arrest.
The Complaint provides no other allegations showing that a reasonable officer in
Grigsby’s shoes would have known that arguable probable cause did not exist for searching
22

Higginbotham’s van and that the search was a violation of his constitutional rights pursuant to
clearly established law. In any event, where the facts and circumstances within a law
enforcement officer’s knowledge caused an objectively reasonable belief that the arrestee had
committed an offense, probable cause exists and “is an absolute bar to a [§] 1983 action.” Marx
v. Gumbinner, 905 F.2d 1503, 1505-06 (11th Cir. 1990). In other words, Grigsby did not need
actual probable cause but only “arguable probable cause” to justify the search and seizure.
Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997) (citation omitted).
Higginbotham’s pleadings, if taken as true, fail to establish that Grigsby is not entitled to
immunity as to the September 2010 incident. The motion to dismiss is due to be GRANTED as
to this claim against Grigsby.
(2) September 27, 2011
Higginbotham also alleges that his arrest on September 27, 2011 constitutes an unlawful
search and seizure. Once again, because the court has already determined that Grigsby was
acting within the scope of his discretionary authority at the time of the September 27, 2011 arrest,
he is, therefore, immune from suit unless Higginbotham’s alleged facts regarding that arrest
would establish that Grigsby had violated clearly established law. However, the only facts he
alleges against Grigsby regarding that arrest is that Grigsby was one of the three police officers
that arrested him pursuant to an arrest warrant charging him with bail jumping and violating his
probation. Higginbotham claims that he had not jumped bail and was not on probation, and,
thus, claims the arrest was an illegal search and seizure. However, he does not allege that
Grigsby knew that arrest warrant presented a false charge, or that Grigsby was responsible for the
issuance of an arrest warrant presenting a false charge. Further, he does not allege facts showing
23

that no reasonably competent officer in Grigsby’s shoes would have known that a warrant should
issue. Therefore, Higginbotham has not pled facts showing that a reasonable officer in Officer
Grigsby’s shoes would know that he was violating Higginbotham’s clearly established
constitutional rights, either under the Fourth Amendment or Due Process Clause, when he
participated in Higginbotham’s September 2011 arrest. See Messerschmidt v. Millender, ___
U.S. ___, 132 S. Ct. 1235, 1245 (2012) (stating that, “[i]n the ordinary case, an officer cannot be
expected to question the magistrate’s probable-cause determination”); Pearson v. Callahan, 555
U.S. 223, 244 (2009) (recognizing that, in cases alleging Fourth Amendment violations for a
search and seizure pursuant to a warrant, officers generally have a right to rely on a neutral
magistrate’s issuance of a warrant to establish their own “objective good faith” in acting on it).
The court FINDS that Grigsby’s motion to dismiss is due to be GRANTED as to the
claims regarding illegal search and seizure, and those claims are due to be DISMISSED. Noting
that Higginbotham’s pleading is his third, the court will dismiss these claims WITH
PREJUDICE.
b. Conspiracy to Commit Illegal Search and Seizure
In paragraph 35 of his Second Amended Complaint, Higginbotham alleges that Grigsby’s
inaction while Officer Reed allegedly violated Higginbotham’s constitutional rights on
September 19, 2010 constitutes a conspiracy to violate those rights.
Conspiring to violate another person’s constitutional rights constitutes a § 1983 violation.
Dennis v. Sparks, 449 U.S. 24, 27 (1980); Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1283
(11th Cir. 2002). To state a claim for relief based on a conspiracy to violate rights protected by §
1983, a plaintiff’s complaint must state that the defendant “reached an understanding” to deny
24

the plaintiff his constitutional rights. Strength v. Hubert, 854 F.2d 421, 425 (11th Cir. 1988),
overruled in part on other grounds by Whiting v. Traylor, 85 F.3d 581, 584 n. 4 (11th Cir. 1996).
The complaint must consist of more than “purely conclusory allegations” but instead, must state
material facts that, if true, would establish the existence of the understanding. Harvey v. Harvey,
949 F.2d 1127, 1133 (11th Cir. 1992). “The linchpin for conspiracy is agreement, which
presupposes communication.” Bailey v. Bd. of Cnty. Comm’rs of Alachua Cnty., 956 F.2d 1112,
1122 (11th Cir. 1994).
Higginbotham has cited non-controlling law for the proposition that under some
circumstances an officer’s inaction while another officer is committing a violation of
constitutional rights in his presence can constitute acquiescence to that violation and can mean
that the first officer has engaged in a conspiracy to commit that violation. The cases cited do not
necessarily stand for that expansive proposition and are inapposite to the instant one for a number
of reasons.
As a primary distinguishing point, none of the claims in those cases are framed as a
conspiracy claim. All of the cases Higginbotham cited – Jackson v. Patazes, 810 F.2d 426 (4th
Cir. 1987), Hafner v. Brown, 983 F.2d 570 (4th Cir. 1992), and Browning v. Snead, 886 F. Supp.
547, 552 (S.D. W. Va. 1995) – involved claims of excessive force, a category of cases in which
the court has recognized at times a duty of the officer witnessing the excessive force to intervene.
See Valazquez v. City of Hialeah, 484 F.3d 1340, 1341-42 (11th Cir. 2009). Therefore, the
allegation against the officer was not that he conspired with the person using excessive force but
that he either participated in the excessive force or failed to intervene when he had a duty to do
so.
25

In the instant case, Grigsby was not present during Reed’s conduct that allegedly
constituted excessive force. Therefore, the court finds that the cases cited are distinguishable
from the instant case and that they fail to support the conspiracy claim.
Further, the court finds that the facts pled in the instant case, if true, do not state a
plausible claim for conspiracy. Higginbotham has pled no facts showing that Grigsby had an
understanding with Reed to violate Higginbotham’s constitutional rights. In addition, the facts
pled do not necessarily show Grigsby had notice that Reed was violating Higginbotham’s
constitutional rights. Grigsby’s mere presence on the scene for part of the incident, with no
additional facts showing that Grigsby knew Reed was violating constitutional rights and had an
agreement with Reed to deny Higginbotham those rights, is not enough to successfully plead
conspiracy, and Higginbotham’s conclusory allegations do not supply facts necessary to survive
the motion to dismiss. Therefore, the court FINDS that the motion to dismiss is due to be
GRANTED as to the conspiracy claim against Grigsby. Because this pleading is Higginbotham’s
third, the court will DISMISS this claim WITH PREJUDICE.
c. Failure to Intervene
Higginbotham’s Second Amended Complaint also conceivably can be read as alleging
that Officer Grigsby had a duty to intervene when Reed exerted excessive force against
Higginbotham. Eleventh Circuit law is clearly established “‘that an officer who is present at the
scene and who fails to take reasonable steps to protect the victim of another officer’s use of
excessive force, can be held liable for his nonfeasance.’ Therefore, an officer who is present at
such a beating and fails to intervene may be held liable though he administered no blow.”
Velazquez, 484 F.3d at 1341-42 (quoting Fundiller v. Cooper City, 777 F.2d 1436, 1441-42 (11th
26

Cir. 1985)).
As noted above, in the instant case, the allegations of the Second Amended Complaint
show that any alleged excessive force occurred before Grigsby arrived on the scene. Therefore,
he was not present, and has no § 1983 liability for failing to intervene. The motion to dismiss as
to the failure to intervene claim against Grigsby is due to be GRANTED. The court will
DISMISS that claim and, because this pleading is Higginbotham’s third, the dismissal will be
WITH PREJUDICE.
d. Due Process Violations
The text of Count Eight, generally alleging due process violations under the Fifth, Sixth,
and Fourteenth Amendments, does not specifically name Grigsby. To the extent, if any, that
Higginbotham asserts a due process claim against Grigsby, that claim would have to be
connected with the incidents on September 19, 2010 and September 27, 2011, both of which
involve the search/seizure and arrest of Higginbotham. As the Supreme Court of the United
States has recognized, claims about conduct that occurred “in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen” are best analyzed under the Fourth
Amendment, “not the more generalized notion of ‘substantive due process.’” See Graham v.
Connor, 490 U.S. 386, 395 (1989) (stating quoted language in the context of an excessive force
claim).
As no claims remain against Officer Grigsby, the court will DISMISS him as a party
Defendant.
3. Sergeant Roberts and Officers Bullard, Reed, & Lawson (doc. 31)
In this motion by multiple Defendants, the Officers request the dismissal of all claims
27

against them individually, except the state law claim for assault in Count Six. The court,
therefore, will address the following claims: (1) Count One - § Section 1983 claims against all
four alleging unlawful stop, search, and seizure in violation of the Fourth Amendment; (2) Count
Two - § 1983 claims against Roberts, Bullard, and Reed for excessive force; (3) Count Seven - §
1983 claim against Reed for false arrest and imprisonment; (4) Count Eight - § 1983 claim
against all four for due process violations; (5) Count Nine - state law claim against Reed for
malicious abuse of process and prosecution; and (6) Count Ten - § 1983 claim against Roberts
for defamation. As discussed previously, the court has already dismissed the tort of outrage
claims asserted against these Defendants. These Officers raise the defenses of a statute of
limitations bar and qualified immunity.
a. Statutes of Limitation Issues that apply to multiple Defendants
The Defendants argue that claims involving the incidents that occurred more than two
years before the filing of the Second Amended Complaint on September 24, 2012 are barred by
the applicable two-year statute of limitations.
(1) September 19, 2010 Incident
As discussed previously, Higginbotham filed an Amended Complaint (doc. 10) on
September 14, 2012, before the two-year statute of limitations ran as to the September 19, 2010
incident. That Amended Complaint contained allegations against the four officers regarding
unlawful search and seizure and excessive force in violation of the Fourth Amendment, and that
Amended Complaint was still in force when Higginbotham filed the Second Amended
Complaint later that month. Thus, any arguments regarding a statutory bar as to the September
19, 2010 incident are not well taken.
28

(2) March 27 & 28, 2010 Incidents
As to the March 27 & 28, 2010 incidents, the Defendants argue that the two-year statute
of limitations bar the claims about them. Although Higginbotham filed suit in January of 2012,
before that statute ran, the Defendants argue that the court’s dismissal of those claims in August
of 2012, after the statute ran, means that they are time-barred. The court agrees that the claims
dismissed with prejudice are time-barred, but the Defendants also argue that the claims the court
dismissed without prejudice are time-barred even though Higginbotham timely amended by the
date the court provided in the dismissal order. The Defendants assert that the statutory bar
converts, in effect, a dismissal without prejudice into one with prejudice and that Higginbotham
could file an amended complaint only asserting claims that were not then time-barred.
As Defendants assert, the “constitutional claims brought under ... § 1983 are tort actions,
subject to the statute of limitations governing personal injury in the state where the § 1983 action
has been brought.” McNair v. Allen, 515 F.3d 1168, 1173 (11th Cir. 2008). In Alabama, the
state where this court sits, the statute of limitations governing personal injury is a two-year
statute. Ala. Code § 6-2-38(1) (1975). Higginbotham initially filed this action in January of
2012, and that complaint was in effect in March of 2012, when the two-year statutory period ran
on the claims involving the March 2010 incident. Further, the Defendants, who had not been
served, had not filed a motion to dismiss at the time that the statute ran as to those claims, so
Higginbotham had not been placed on notice that his initial complaint was defective. In August
of 2012, the court sua sponte dismissed all claims, some with prejudice and some without – or
intended to dismiss all claims; the court later clarified or modified its order to specify the rulings
also included the dismissal of claims against Officers Reed and Grigsby.
29

As noted above, the Defendants assert that the court’s dismissal of the claims regarding
the March 2010 search and seizure after the statute had run on them does not authorize the filing
of subsequent claims, and further, that the filing of a civil action later dismissed does not toll the
statute while that action is pending. None of the cases Defendants cited involves facts analogous
to those presented here, where the court had dismissed claims with or without prejudice in the
original suit but had provided a time period during the original suit to amend so that the claims
alleged to have been time-barred were still brought in the original suit within the time provided
by the court to amend the complaint. The court notes that it never entered an order dismissing
the entire action because Higginbotham amended the complaint within the time the court
provided.
However, the court FINDS to the extent, if any, the dismissal of the claims without
prejudice meant that the amended claims asserted in the same action as to the March 2010
incidents were time-barred, that equitable tolling applies to them and prevents the application of
the statutory bar. The court recognizes that equitable tolling is to be used sparingly. But, the
instant situation falls into a category that the Supreme Court of the United States has recognized
as appropriate for the operation of equitable tolling: “where the claimant has actively pursued his
judicial remedies by filing a defective pleading during the statutory period.” See Irwin v. Dep’t
of Veteran Affairs, 498 U.S. 89, 95 (1990).

Similarly, the Eleventh Circuit has explained that

equitable tolling is warranted when a plaintiff timely files what is later revealed to be a defective
pleading and “in all other respect acts with ‘the proper diligence .... which .... statutes of
limitation were intended to insure....’” Justice v. United States, 6 F.3d 1474, 1479 (11th Cir.
1993) (quoting Burnett v. New York Central R. Co., 380 U.S. 424, 430 (1965)).
30

In the instant case, Higginbotham timely filed the instant suit prior to the running of the
two-year statutory period, and had no notice of the defective state of his pleading as of the
running of the statute. When he was so advised by order of the court after the statute had run, he
amended his complaint within the time provided by the court to do so. He, a pro se plaintiff, has
acted with due diligence in timely filing the initial complaint and in following the court’s
direction regarding timely amending that complaint. To the extent, if any, that the claims
dismissed without prejudice and re-asserted in the same suit within the period provided for
amending the complaint are barred by the two-year statute, the court, in its discretion, finds that
the interests of justice require the application of the doctrine of equitable tolling. Thus, the court
FINDS that the doctrine applies to TOLL the running of the statute of limitations, and that the
claims regarding the March of 2010 incidents that this court dismissed without prejudice but
which Higginbotham reasserted in the Amended Complaint (doc. 10) and the Second Amended
Complaint (doc. 13) are not time barred. Because those claims are not time barred, the court will
proceed to address those claims below, along with the others alleged.
b. Claims against Officer REED
The Second Amended Complaint presents the following claims against Officer Reed
addressed in the motion to dismiss: (1) Count One - § 1983 claim alleging unlawful stop, search,
and seizure in violation of the Fourth Amendment; (2) Count Two - § 1983 claim for excessive
force; (3) Count Seven - § 1983 claim for false arrest and imprisonment; (4) Count Eight - §
1983 claim for due process violations; and (5) Count Nine - state law claim for malicious abuse
of process and prosecution. It also presents the tort of outrage claim in Count Five that the court
has already found is due to be dismissed.
31

According to the Second Amended Complaint, all of these claims arise out of an incident
that occurred late at night on September 19, 2010, after Higginbotham left Bill Howard’s home,
as previously recounted in the Grigsby section of this opinion.
(1) Count One - § 1983 claim against Reed for unlawful stop, search, and seizure
in violation of 4th Amendment
The Amended Complaint alleges that the September 19, 2010 stop, search and seizure
incident involving Reed violated Plaintiff’s constitutional rights. The only argument that Reed’s
brief supporting the motion to dismiss presents as to this claim is to assert that the claim is barred
by the statute of limitations, an argument that the court previously rejected. The brief does
present substantive arguments about claims for unlawful search and seizure asserted against other
officers, and the court assumes that if Reed intended to present a qualified immunity argument as
to this claim at this stage of the litigation, he would have done so. He did not. Accordingly, the
court has addressed and rejected the only argument Reed presented on this claim. The court
DENIES the motion to dismiss as to this claim, and the court will proceed to address the other
arguments presented.
(2) Count Two - § 1983 claim for excessive force against Reed
In Count Two of the Second Amended Complaint, Higginbotham alleges that “Officer
Mark Reed... used excessive force by unlawfully swinging a Maglite into the face of the Plaintiff,
in a menacing manner, and by unlawfully drawing his handgun, and forcing the Plaintiff to exit
his van at gunpoint. The plaintiff was unarmed, and at no point posed any grave threat to Officer
Reed, that would cause the need for the use of a firearm.” (Doc. 13, ¶ 92). Previous paragraphs,
incorporated by reference, state that this incident of alleged excessive force occurred after 11:00

32

p.m. on September 19, 2010 during an investigative stop and after a heated verbal exchange
between Officer Reed and Higginbotham that culminated in Higginbotham’s call to 9-1-1 to
complain of harassment. During that stop, the following occurred: Reed aimed a spotlight into
Higginbotham’s side mirror and in his face multiple times; Reed aimed a spotlight at his
passenger multiple times, and cursed at him when he objected; Reed punched the hood of the
van; unlocked, violently opened the driver-side door, and grabbed Higginbotham’s left arm;
when Higginbotham pulled his arm from Reed’s grip, Reed removed his handgun from its holster
and pointed it at Higginbotham; when Higginbotham called 9-1-1, Reed grabbed Higginbotham’s
cell phone, turned it off, and violently shoved him into the side of the van; Reed violently twisted
Higginbotham’s arms behind his back, and handcuffed his wrists tightly, causing considerable
pain; Reed violently dragged Higginbotham to the rear of his van to show him that the tag light
was not working; and Reed threatened to kill Higginbotham if he tried to file charges or a lawsuit
against him. Higginbotham does not allege any permanent injuries as a result of the force Reed
used and does not allege that he required medical care or was bleeding or received bruises or any
physical injuries as a result of the force used.
In Defendants’ brief in support of their motion to dismiss, they argue that Higginbotham’s
excessive force claims against them are subsumed within the unlawful stop and seizure claims
that are based on the same incidents. In Reed’s case, the only excessive force claim alleged
against him in the Second Amended Complaint stems from the September 19, 2010
stop/search/seizure incident, and thus, Reed argues that it would be subsumed within the § 1983
claim for the unlawful stop/search/seizure regarding that incident.
“Under this Circuit’s law ... a claim that any force [used] in an illegal stop or arrest is
33

excessive is subsumed in the illegal stop or arrest claim and is not a discrete excessive force
claim.” Jackson v. Sauls, 206 F.3d 1156, 1171 (11th Cir. 2000); see also Motes v. Myers, 810
F.2d 1055, 1059 (11th Cir. 1987) (stating that “[i]t is obvious that if the jury finds the arrest
unconstitutional, the use of force and the search were unconstitutional and they become elements
of damages for the § 1983 violation.”).
An excessive force claim, on the other hand “evokes the Fourth Amendment’s protection
against the use of an unreasonable quantum of force (i.e., non-de minimis force unreasonably
disproportionate to the need) in effecting an otherwise lawful arrest.” Bashir v. Rockdale Cnty.,
Ga., 445 F.3d 1323, 1332 (11th Cir. 2006). Thus, the excessive force claim is subsumed in the
illegal stop or arrest claim if the arrest lacked probable cause and is found to be unconstitutional
but, to the extent the arrest was lawful, then the excessive force claim presents a discrete and
separate constitutional violation “relating to the manner in which an arrest was carried out, and is
independent of whether law enforcement has the power to arrest.” Id.
Because the court does not address the merits of the search and seizure claim involving
Reed, and thus, does not perform a probable cause analysis regarding the arrest at this stage of
the proceedings, the court does not make a determination at this point whether the excessive
force claim is subsumed within the illegal stop and arrest claim, and the court must, for these
purposes, view them as separate claims.
The Fourth Amendment’s “objective reasonableness” standard applies in the
determination of whether the force used was reasonableness. Hadley v. Gutierrez, 526 F.3d
1325, 1329 (11th Cir. 2008). This standard requires that the court “carefully balance ‘the nature
and quality of the intrusion on the individual’s Fourth Amendment interests’ against ‘the
34

countervailing governmental interests at stake.” Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir.
2009) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).

To determine whether the force

the officer applied was reasonable, the court first focuses on “the fact pattern from the
perspective of a reasonable officer on the scene with knowledge of the attendant circumstances
and facts, and balance[s] the risk of bodily harm to the suspect against the gravity of the threat
the officer sought to eliminate.” McCullough v. Antolini, 559 F.3d 1201, 1206 (11th Cir. 2009).
The court measures the amount of force used against “the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Id.
As a second consideration, the court looks at “‘(1) the need for the application of force,
(2) the relationship between the need and the amount of force used, [and] (3) the extent of the
injury inflicted.’” Leslie v. Ingram, 786 F.2d 1533, 1536 (11th Cir. 1986), abrogated in part by
Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000) (acknowledging that Graham invalidated
Leslie’s fourth factor inquiring into the officer’s subjective motive). The Eleventh Circuit has
explained that “the application of de minimis force, without more, will not support a claim for
excessive force in violation of the Fourth Amendment.” Nolin, 207 F.3d at 1257. The Eleventh
Circuit has determined that the following were de minimis uses of force: the officer’s pushing an
arrestee who was handcuffed against a wall because the arrestee spoke after being told to “shut
up,” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1556 (11th Cir. 1993); the officer’s slamming
a suspect against a wall and kicking his feet apart without provocation, Jones v. City of Dothan,
121 F.3d 1456, 1460 (11th Cir. 1997) (per curiam); the officer’s grabbing an arrestee from
behind, shoving and pushing him against a vehicle, which resulted in bruising but no medical
35

treatment, Nolin, 207 F.3d at 1258 n. 4.
As a third consideration, the court recognizes “that the right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of physical coercion or
threat thereof to effect it.” Graham, 490 U.S. at 396. As the Supreme Court explained in
Graham,
Not every push or shove, even if it may later seem unnecessary in the peace
of a judge’s chambers ... violates the Fourth Amendment. The calculus of
reasonableness must embody allowance for the fact that police officers are
often forced to make split-second judgments—in circumstances that are
tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.
Id. Therefore, the “‘[u]se of force must be judged on a case-by-case basis from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’” Vinyard v.
Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002) (quoting Graham, 490 U.S. at 396)).
As a final consideration in the reasonableness inquiry, the Eleventh Circuit has
recognized that the timing of the use of force is key; an officers’ use of force is more likely to be
unlawful when it occurs “after the arrest [has] been fully effected, the arrestee completely
secured, and all danger vitiated.” Lee v. Ferraro, 284 F.3d 1188, 1199-1200 (11th Cir. 2002).
Keeping all of these factors in mind, the court FINDS that the use of force in the instant
case is de minimis. The use of force alleged — grabbing Higginbotham’s arm, slamming him
against the van, twisting his arms behind his back and handcuffing him in a way that caused
pain, and dragging him to the rear of the car– is commensurate with the uses of force
characterized as de minimis by the Eleventh Circuit, and no allegations exist that Higginbotham
suffered longterm or permanent pain as a result of the force applied or that he suffered bleeding,

36

severe bruising or received or required any medical care because of the incident. Reed used this
de minimis force in connection with an investigative stop when the driver was less than fully
cooperative, engaging in a heated verbal exchange and pulling away when Reed grabbed him.
Reed did pull his handgun out of the holster, but Higginbotham’s complaint states that Reed did
not do so until after Higginbotham pulled his arm from Reed’s grip. Accordingly, the excessive
force claim asserted against Reed is due to be DISMISSED.
Alternatively, if Higginbotham has raised a genuine issue of material fact as to the
excessiveness of the force applied, the court finds that Reed has successfully asserted the
doctrine of qualified immunity and that the application of that doctrine shields him from suit.
Given Reed’s invocation of qualified immunity, the court FINDS that Reed was acting within
the scope of his discretionary authority when the alleged wrongful acts occurred. He therefore is
immune unless Higginbotham demonstrates that as of September 19, 2010, the law was clearly
established that the force Reed used was excessive.
Higginbotham may meet his burden of showing an alleged constitutional violation was
well-established in two ways: he must point the court to a materially similar controlling case
already decided as of September 19, 2010, determining that the use of force was unlawful; or he
must show that the conduct “lies so obviously at the very core of what the Fourth Amendment
prohibits that the unlawfulness of the conduct was readily apparent to the officer,
notwithstanding the lack of case law.” Lee, 284 F.3d at 1198 (citing Priester v. City of Riviera
Beach, Fla., 208 F.3d 919, 926 (11th Cir. 2000)).
Higginbotham has not cited any such materially similar case. The one case he cites in
Count Two of the Second Amended Complaint, Wakefield v. City of Pembroke Pines, 269 F.
37

App’x 936 (11th Cir. 2008) (per curiam) is not a published case, and, thus, does not represent
binding precedent. See Eleventh Circuit Rule 36-2 stating that unpublished opinions are not
considered binding precedent. In any event, Wakefield does not present materially similar facts
to those of the instant case. Wakefield was not a qualified immunity case, and focused upon
whether the City of Pembroke Pines had an official policy and custom of violating constitutional
rights. Although the fact scenario did include a police officer pointing a gun at a plaintiff during
a traffic stop, along with other instances of alleged misconduct, the Eleventh Circuit did not
specifically rule whether the police officers’ use of force was excessive; it merely found that,
even assuming arguendo the use of force was excessive, the plaintiff failed to create a genuine
issue of material fact concerning the city’s liability for that use of force. The district court
granted summary judgment in favor of the city and against the plaintiff on the claims and the
Eleventh Circuit affirmed. Id. at 941. Because the Court of Appeals made no ruling on whether
the use of force was excessive, and because its fact scenario was not sufficiently similar to the
total circumstances of the instant case, Wakefield cannot “clearly establish” that the force Reed
used on Higginbotham violated his constitutional rights. None of the cases cited in
Higginbotham’s response brief regarding qualified immunity is a published excessive force case
from the Eleventh Circuit or the United States Supreme Court.
Another means of overcoming qualified immunity is to prove that the unlawfulness of
the conduct was “readily apparent” to Reed because the conduct “lies so obviously at the very
core of what the Fourth Amendment prohibits. . . .” Lee, 284 F.3d at 1198. Under this test, the
Eleventh Circuit has explained that the particular facts of this case must be “so far beyond the
hazy border between excessive and acceptable force [that every reasonable officer] had to know
38

he was violating the Constitution without caselaw on point.” Vinyard, 311 F.3d at 1355.
An examination of Graham, Leslie, and Eleventh Circuit case law up to September 19,
2010 shows that this case is not one “far beyond the hazy border between excessive and
acceptable force.” As is clear from the recitation of alleged facts at the beginning of this section,
when Reed pulled Higginbotham over, the occupants of the car were not compliant and
completely cooperative. Rather, they began fussing with the officer about the use of his
spotlight even though the use of some light to illuminate the scene and the van occupants was
appropriate given the late hour. The verbal exchange became heated with accusations going
back and forth culminating in Higginbotham’s calling 9-1-1 and insisting to the operator that the
officer was harassing him and threatening him. None of the alleged excessive physical conduct
occurred until after the initiation of the heated verbal exchange and the 9-1-1 call. Further,
Reed’s pulling out a gun did not occur until after Reed had grabbed Higginbotham and after
Higginbotham had reacted by “pull[ing] his arm from Officer Reed’s grip.” (Doc. 13, at 12).
Disorderly conduct is a misdemeanor under Alabama law that authorizes an officer to
make a custodial arrest. Ala. Code § 13A-11-7. The court does not determine as a matter of
law that the conduct of Higginbotham and his passenger was disorderly within the meaning of
Alabama law. Rather, the court merely points out that the heated verbal exchange, the 9-1-1
call, and Higginbotham’s pulling his arm out of Reed’s grasp – when taken together and viewed
from the point of view of a reasonable officer in Reed’s shoes – at the very least constitutes
conduct that an officer could reasonably consider to be disorderly generating a right to make a
custodial arrest. Fourth Amendment jurisprudence has long recognized that the right to effect
an arrest “necessarily carries with it the right to use some degree of physical coercion or threat
39

thereof to effect it.” Graham, 490 U.S. at 396. Further the Eleventh Circuit “has made clear
that some use of force by a police officer when making a custodial arrest is necessary and
altogether lawful, regardless of the severity of the alleged offense.” Duruthy v. Pastor, 351 F.3d
1080, 1094 (11th Cir. 2003). When effecting arrest even for minor offenses, the law authorizes
police officers to use physical restraints and handcuffs and to push suspects. See, e.g., Nolin,
207 F.3d at 1257 (finding no constitutional violation where the officer grabbed the suspect,
searched his groin area, and placed him in handcuffs); Jones v. Dothan, 121 F.3d 1456, 1460
(11th Cir. 1997) (finding no constitutional violation when the officer slammed the plaintiff
against a wall and kicked his legs apart); Gold v. City of Miami, 121 F.3d 1442, 1446-47 (11th
Cir. 1997) (finding no constitutional violation when the officer placed the handcuffs too tightly
onto the plaintiff’s hands when arresting him for disorderly conduct).
Finally, the court notes that even the right to make an investigatory stop “necessarily
carries with it the right to use some degree of physical coercion. . . .” Graham, 490 U.S. at 396.
When Reed made the investigatory stop, he had the right to use some degree of force to effect it.
The circumstances of that stop escalated to a situation with heated verbal exchanges,
Higginbotham’s calling 9-1-1, and, eventually, Higginbotham pulling his arm away when Reed
grabbed it, meaning that at the time of the use of force, Higginbotham was affirmatively
refusing to cooperate; Reed had the right to use some degree of force to control the situation and
do his job. Further, the use of force occurred in the process of gaining control of and arresting
Higginbotham and not after he had secured control. And, as noted previously, Higginbotham
does not allege that he received any physical injuries from the force applied other than
temporary pain or that he required any medical care for physical injuries.
40

In sum, the court FINDS that the force Reed applied was de minimis and does not
represent a constitutional violation, and, alternatively, to the extent that the force applied did
represent a constitutional violation, that every reasonable officer in Officer Reed’s position
would not inevitably conclude that such use of force was unlawful under the standards of Leslie
and Graham. Accordingly, the court FINDS that Higginbotham has failed to allege facts
demonstrating that Reed is not entitled to immunity as to this claim. The court will GRANT the
motion to dismiss as to the claim of excessive force against Reed, DISMISSING that claim.
Further, because this pleading is Higginbotham’s third, the dismissal will be WITH
PREJUDICE.
(3) Count Seven - claim against Reed for false arrest and imprisonment
In this Count, Higginbotham claims Reed’s actions against Higginbotham on September
19, 2010 constituted false imprisonment and false arrest in violation of his constitutional rights.
Because he specifies constitutional violations and does not mention Alabama law, the court
must presume that he intends to bring this claim as a federal claim under § 1983. The court
acknowledges experiencing difficulty distinguishing the claims in this Count from those in
Count One. Perhaps Higginbotham intends for Count One to address Reed’s alleged wrongful
stopping and searching his vehicle and Count Seven to address Reed’s subsequent arrest of
Higginbotham on that same evening, which he claims was wrongful. The court will proceed on
that assumption.
In Defendants’ motion to dismiss, they first argue that this claim is barred by the twoyear statute of limitations. This court dismissed claims against all other Defendants in August
of 2012, and then on September 14, 2012 clarified its Order by dismissing claims against Reed
41

and Grigsby without prejudice to Higginbotham’s filing an amended complaint on or before
September 24, 2012. Higginbotham filed the first Amended Complaint on September 14, 2012,
containing all relevant facts about the September 19, 2010 incident and naming Reed (Doc. 10,
at 9-12), but that pleading contained only six counts and did not contain separate counts for false
arrest and false imprisonment. Higginbotham then filed on September 24, 2012, the Second
Amended Complaint with Count Seven, asserting this claim for false arrest and false
imprisonment within the time that this court provided for amending.
Because the First Amended Complaint, filed before the statute ran, contained the
relevant facts about the September 19, 2010 incident out of which the claim for false arrest and
imprisonment arose, the court FINDS that the amendment to that pleading, the Second
Amended Complaint, relates back pursuant to Rule 15(c)(1)(B). Fed. R. Civ. P 15(c)(1)(B)
(“An Amendment to a pleading relates back to the date of the original pleading when ... the
amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence
set out – or attempted to be set out – in the original pleading ....”). Alternatively, for the
reasons previously discussed, this court FINDS that the doctrine of equitable tolling applies and
TOLLS the statute as to this claim. This claim is not barred.
Other than asserting the rejected statute of limitations argument, Defendants present only
a conclusory three-sentence statement, devoid of case law, that Higginbotham has no claim for
false arrest because “he was convicted of most of the charges which gave rise to Officer Reed’s
arrest of him” and because “if probable cause existed...to convict Higginbotham, then probable
cause certainly existed for Officer Reed’s arrest of Higginbotham.” (Doc. 32, at 14) (emphasis
added). While the court appreciates the concise presentation of arguments, counsel should
42

never be so concise that they fail to present and address the relevant law. Put another way, they
should never confuse a positive brevity for a pejorative bare bones; the bones should never be so
bare that the court is left to gnaw without the law.
The Eleventh Circuit has repeatedly stated that individuals enjoy a Fourth Amendment
right to be free from unreasonable searches and seizures, including unreasonable arrests, which
are seizures of the person. E.g., Skop v. City of Atlanta,485 F.3d 1130, 1137 (11th Cir. 2007).
“The ‘reasonableness’ of an arrest is, in turn, determined by the presence or absence of probable
cause for the arrest.” Id. If probable cause existed for the arrest and conviction, then a plaintiff
has no claim from false arrest under § 1983. See id.
The court thus looks to the Second Amended Complaint to see if, based on the facts
alleged, probable cause existed. In ¶ 55 of his Second Amended Complaint, Higginbotham
acknowledges that Judge Coleman found him guilty of at least some of the charges upon which
Reed arrested him on September 19, 2010: criminal possession of Paxil, and operating a motor
vehicle without a tag light. He does not plead that he has challenged those allegedly wrongful
convictions on direct appeal or that they were “expunged by executive order, declared to be
invalid by a state tribunal authorized to make determination, or called into question by a federal
court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that
relationship to a conviction [ ] that has not been so invalidated is not cognizable under § 1983.”
Heck v. Humphrey, 512 U.S. 477, 486 (1994). Heck bars those claims that “if successful, would
necessarily imply the invalidity of the conviction because they would negate an element of the
offense.” Hughes v. Lott, 350 F.3d 1157, 1160 n. 2 (11th Cir. 2003).
Obviously, if probable cause existed for conviction, probable cause existed for the arrest,
43

and, given that Higginbotham acknowledges his conviction for certain offenses, he is barred
from challenging the arrest in this lawsuit as to those offenses. Accordingly, the claims for false
arrest and false imprisonment against Reed are due to be dismissed as to the claims under which
he was found guilty regarding the September 19, 2010 incident.
Higginbotham was found not guilty, however, of all the offenses for which he was
arrested on September 19, 2010: Reed also charged him with carrying a concealed weapon and
Higginbotham was not found guilty of that charge. Defendants rather blithely assert that
because Higginbotham was convicted on most charges issued on September 19, 2010, a false
arrest charge is improper, but they provide no support for that assertion. Viewing the facts in
the light most favorable to the pro se Plaintiff, Higginbotham has alleged that immediately after
Reed got angry and threatened Higginbotham for calling the 9-1-1 operator, Reed charged him
with carrying a concealed weapon based on a toy gun, and also expressly stated to another
officer that Higginbotham would “pay” for making that 9-1-1 call. Further, the allegations state,
in ¶ 55 that the concealed weapon charge was ultimately resolved in Higginbotham’s favor.
Those allegations also allege in ¶ 16 that another set of officers had previously been able to
“[confirm] that the [same] handgun was a plastic toy.” The court assumes that a trained officer
such as Reed similarly would have been able to confirm whether Higginbotham’s handgun was
a toy. Higginbotham’s allegations provide an inference that Reed charged Higginbotham with
the concealed weapon offense without probable cause and in bad faith and with malice, knowing
or suspecting that the gun was a toy. See Seaboard Oil Co. v. Cunningham, 51 F.2d 321, 322 (5

44

th Cir. 1931)2 (stating that while malice and want of probable cause are both essential elements
of false arrest and malicious prosecution, “malice may be inferred from want of probable
cause”).
The court FINDS the allegations state a plausible claim that no probable cause existed
for Higginbotham’s arrest on that charge, and that his arrest was a deprivation of
Higginbotham’s constitutional rights to be free from unreasonable arrest. Further, the court
FINDS that, based on the facts alleged and the reasonable inferences derived from those facts,
every reasonable officer in Reed’s shoes would know that charging Higginbotham with carrying
a concealed weapon based on a toy gun, knowing or suspecting it was a toy gun, would be
without probable cause and in violation of his constitutional rights. Accordingly, the court
DENIES the motion to dismiss as to the claim against Reed for false arrest on the concealed
weapon charge.
In sum, as to the claims against Reed in Count Seven, the court GRANTS the motion to
dismiss as to all of those claims except the arrest on the concealed weapons charge; the court
DENIES the motion as to the arrest on that charge.
(4) Count Eight - Violation of Due Process Rights brought pursuant to § 1983
against Reed
In ¶ 34, Higginbotham claims that Reed’s intentional taking of his $20 and spare set of
keys, spending the $20 for drinks and snacks purchased on the way to the jail, denying that he
took the money, and failing to return the keys or pay back the money represents taking

2

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981)(en banc), the Eleventh
Circuit adopted as precedent all Fifth Circuit decisions handed down prior to the close of business on
September 30, 1981.

45

Higginbotham’s property without due process of law. The Fourteenth Amendment provides that
“[n]o State shall... deprive any person of life, liberty, or property, without due process of law.”
U.S. Const., amend. XIV, § 1. Here, the allegation is that Reed intentionally took the property
and provided Higginbotham with no process or means of objecting to the theft and rectifying the
situation.
In the Eleventh Circuit, “a § 1983 claim alleging the denial of procedural due process
requires proof of three elements: (1) a deprivation of constitutionally-protected liberty or
property interest; (2) state action; and (3) constitutionally-inadequate process.” Cook v.
Randolph County, Ga., 573 F.3d 1143, 1148-49 (11th Cir. 2009) (quoting Grayden v. Rhodes,
345 F.3d 1225, 1232 (11th Cir. 2003)). But “a procedural deprivation may be cured by
providing a later procedural remedy.” Sullivan Props., Inc. v. City of Winter Springs, 899 F.
Supp. 587, 594-95 (M.D. Fla. 1995) (quoting McKinney, 20 F.3d at 1557).
According to the Eleventh Circuit,
only when the state refuses to provide a process sufficient to remedy the
procedural deprivation does a constitutional violation actionable under
section 1983 arise. It is the state’s failure to provide adequate
procedures to remedy the otherwise procedurally flawed deprivation of
a protected interest that gives rise to a federal procedural due process
claim.
Cotton v. Jackson, 216 F.3d 1328, 1330-31 (11th Cir. 2000) (footnote and quotation omitted).
“This rule ... recognizes that the state must have the opportunity to remedy the procedural failings
of its subdivisions and agencies in the appropriate fora – agencies, review boards, and state
courts – before being subjected to a claim alleging a procedural due process violation.” Id. at
1331 (quotation omitted).

46

Thus, the Eleventh Circuit has acknowledged time and time again that the procedural due
process “a state provides is not only that employed by the board, agency, other governmental
entity whose action is in question, but also includes the remedial process state courts would
provide if asked.” Horton v. Bd. of County Comm’rs, 202 F.3d 1297, 1300 (11th Cir. 2000); see
also Bass v. Perrin, 170 F.3d 1312, 1319 (11th Cir. 1999); Harris v. Bd. of Educ., 105 F.3d 591,
596 (11th Cir. 1997); McKinney, 20 F.3d at 1561-65. If the state provided adequate remedies
and “the plaintiff failed to take advantage of them, the plaintiff cannot rely on that failure to
claim that the state deprived him of procedural due process.” Cotton, 216 F.3d at 1331.
The court FINDS that this allegation states a plausible claim that Reed violated
Higginbotham’s right to due process in taking his property. Perhaps an adequate remedy for this
“taking” existed; however, in the briefing, the Defendant has not provided the court with any
information concerning the process available to remedy the wrong. Further, the court FINDS
that the right to be free from a police officer’s taking your property without adequate process
was clearly established as of the date of the alleged theft, and thus, Reed is not entitled to
qualified immunity at this stage of the action. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 82
(1972) (stating that the procedural due process guarantee protects against “arbitrary taking[s]”).
5) Count Nine- claim against Reed for Malicious Prosecution and Malicious
Abuse of Process
In this Count, Higginbotham claims that Reed’s arrest of him on September 19, 2010
constitutes the torts of malicious prosecution and malicious abuse of process. The Second
Amended Complaint does not specify whether Higginbotham brings these claims under Alabama
state law or as a claim pursuant to § 1983, but because he does not point to any Alabama law, the

47

court will address this claim as one brought under federal law. To establish a § 1983 malicious
prosecution claim, a plaintiff must show two prongs: first, the elements of the common law tort
of malicious prosecution; and, second, a violation of his right under the Fourth Amendment to
be free from unreasonable seizures under the Fourth Amendment. Kingsland v. City of Miami,
382 F.3d 1220, 1234 (11th Cir. 2004). The elements of the common law tort of malicious
prosecution are: “(1) a criminal prosecution instituted or continued by the present defendant; (2)
with malice and without probable cause; (3) that terminated in the plaintiff accused’s favor; and
(4) caused damage to the plaintiff accused.” Wood v. Kesler, 323 F.3d 872, 882 (11th Cir. 2003).
In the instant case, the face of the Second Amended Complaint shows that several of the
charges against him were not terminated in Higginbotham’s favor; Judge Cole found him guilty
of having criminal possession of prescription drugs, operating a motor vehicle without a tag light
and two counts of failing to use a turn signal. Accordingly, Higginbotham has not stated a
plausible claim as to the malicious prosecution claims regarding those charges; the motion to
dismiss those claims is due to be GRANTED, and the claims against Reed as to those charges are
due to be DISMISSED.
The remaining charge is the charge for carrying a concealed weapon, for which
Higginbotham received a finding of not guilty. However, as noted, Higginbotham must allege
more than a “not guilty” finding to state a plausible claim: he must also allege facts that would
create an inference that Reed’s charge was executed with malice and without probable cause.
As discussed previously under Count Seven, Higginbotham has done so. See discussion supra
at 44-45; see also Brown v. Benefield, 757 F. Supp. 2d 1165, 1181-82 (M.D. Ala. 2010) (finding
that, for the purposes of a malicious prosecution action, malice may be inferred for want of
48

probable cause). The court FINDS that Higginbotham has alleged a plausible claim against Reed
for malicious prosecution as to the charge of carrying a concealed weapon. The court further
FINDS that every reasonable officer in Reed’s position, as alleged in the Second Amended
Complaint, would have known that prosecuting him for this charge under these circumstances
constituted a violation of Higginbotham’s constitutional rights; the law was clearly established
that individuals have a right to be free from a prosecution commenced with malice and without
probable cause. See Uboh v. Reno, 141 F.3d 1000, 1002-04 (11th Cir. 1998). Therefore, Officer
Reed is not entitled to qualified immunity. The motion to dismiss as to the claim against Reed
for malicious prosecution is due to be GRANTED IN PART and DENIED IN PART: granted as
to all claims regarding charges except the concealed weapons charge and denied as to the
malicious prosecution for the concealed weapons charge.
As to the claim for malicious abuse of process also in Count Nine, this court knows of no
decision in which the United States Supreme Court or the Eleventh Circuit has recognized that
the tort of malicious abuse of process rises to a constitutional tort cognizable under § 1983. In
any case, the court notes that the tort is generally distinguished from that of malicious
prosecution by focusing on the timing of the abuse; “[M]alicious prosecution concerns the
wrongful issuance of process; abuse of process concerns the wrongful use of process after it has
been issued.” C.C. & J., Inc. v. Hagood, 711 So. 2d 947, 950 (Ala. 1998). Put another way, a
defendant cannot be liable for an abuse of process unless he somehow “acted outside the
boundaries of legitimate procedure after the charge had been filed.” Id. at 951-52 (emphasis
added).
The facts alleged in the Second Amended Complaint against Reed focus on the alleged
49

wrongful acts of searching, seizing Higginbotham, arresting, him, and filing charges—not on any
wrongful use of process after the charge had been filed. Accordingly, the Second Amended
Complaint fails to state a plausible claim against Reed for abuse of process under state or federal
law. The motion to dismiss as to that claim against Reed is due to be GRANTED as to the
malicious abuse of process claim. Because Higginbotham has already had two opportunities to
amend the complaint, the court will DISMISS that claim WITH PREJUDICE.
In sum, the court FINDS that the motion to dismiss is due to be GRANTED as to the
following claims against Reed: Counts Two, Five, Seven - for all claims except the one involving
arrest for the concealed weapons charge, and Nine - for all claims except the malicious
prosecution for the concealed weapons charge. The claims against him in Counts One, Six,
Seven - as to the arrest for the concealed weapons charge, Eight, and Nine - as to malicious
prosecution for the concealed weapons charge will proceed at this stage.
c. Claims against Sergeant ROBERTS
The Second Amended Complaint presents the following claims against Sergeant Roberts
that are addressed in the motion to dismiss: (1) Count One - § 1983 claim alleging unlawful
stop, search, and seizure in violation of the Fourth Amendment; (2) Count Two - § 1983 claim
for excessive force; (3) Count Eight - § 1983 claim for due process violations; and (4) Count
Ten - Defamation of Character. As noted previously, the court has determined that the tort of
outrage claim against Roberts in Count Five is due to be DISMISSED and the motion does not
address Count Six’s claim for assault. The court will address the remaining claims against
Roberts separately.

50

(1) § 1983 claim against Roberts for unlawful stop, search, and seizure in
violation of 4th Amendment.
Higginbotham claims that the conduct of Roberts and others in conducting
unlawful investigatory stops and searches and seizures violated his Fourth Amendment rights
guaranteeing “[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. CONST.. amend. IV. “The Supreme Court
has identified three distinct types of police-citizen encounters, each requiring a different level of
suspicion to be deemed reasonable under the Fourth Amendment: (1) arrest, which must be
supported by probable cause; (2) brief investigatory stops, which must be supported by
reasonable articulable suspicion; and (3) brief encounters between police and citizens, which
require no objective justification.’” United States v. Brown, 401 F.3d 588, 592 (4th Cir. 2005)
(quoting United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002)). The court will address
each incident separately.
A. March 27, 2010
The Amended Complaint alleges that the March 27, 2010 stop, search and seizure
incident involving Roberts violated Higginbotham’s constitutional rights. Roberts first asserts
that the claim is barred by the statute of limitations, an argument that the court previously
rejected. The brief does present substantive arguments about claims for unlawful search and
seizure asserted against Roberts for subsequent stops, and the court assumes that if Roberts
intended to present an argument as to the plausibility of this claim or raise qualified immunity as
to this claim at this stage of the litigation, he would have done so. He did not. Accordingly, the
court has addressed and rejected the only argument Roberts presented on this claim. The court

51

DENIES the motion to dismiss as to this claim regarding the March 27, 2010 stop, and the court
will proceed to address the arguments presented as to other incidents.
B. April 29, 2011
The Second Amended Complaint contains the following allegations about an incident on
April 29, 2011, after a tornado damaged Chris Gardner’s property:
The plaintiff states that he, Shane Myers, Chrissy Jackson, and Walter
“Butch” Morgan assisted Chris Gardner with cleaning, and clearing his
property. The plaintiff alleges that Shane Myers, and “Butch” Morgan set fire
to a pile of debris at approximately 11:45 p.m., and that said fire brought a
U.S. Marshal, several Pleasant Grove Police Officers, and the Pleasant Grove
Fire Dept. The plaintiff states that he did not speak, interact, or initiate
contact with any of these individuals. The plaintiff states that the Fire Dept.
extinguished this fire in less than five (5) minutes. The plaintiff states that
Shane Myers freely admitted to everyone present, that he had started the fire.
The plaintiff alleges that after the U.S. Marshal, the Fire Dept., and all other
Police Officers had left the property, Sgt. Ed Roberts threatened to arrest
Shane Myers, “Butch” Morgan, and Chris Gardner if they caused him any
more problems. The plaintiff states that he was standing in the middle of 7th
Street, approximately fifty (50) feet from the location of the fire. The plaintiff
alleges that Sgt. Roberts approached him in a menacing manner, shoved him
backwards against Chrissy Jackson’s Dodge Durango, and made the following
statements, “That goes for you, too, Barry. I don’t give a damn how
much law you know, nor how much law you think you know. I will
throw you in jail right now, I will lose the paperwork, I will make sure
that no one lets you use the telephone, I will keep you in jail for the next
six (6) months, and no one will know where you are... And there won’t be
a god-damned thing you can do about it... You’re just as sorry as the
trash you run around with ... You’re no better than the company you
keep”. The plaintiff alleges that Sgt. Roberts removed his handgun from its
holster, and then returned it to its holster. The plaintiff states that he left Chris
Gardner’s property at approximately 1:00 a.m. .... [The pleading also indicates
that Higginbotham was subsequently stopped momentarily by other State
Troopers and National Guardsmen on his way home, indicating that this area
was heavily patrolled during this period.].
(Doc. 13, at 20-21).
The court FINDS that Roberts was acting within the scope of his discretionary authority
52

when he encountered Higginbotham at Chris Gardner’s property, as Roberts was dealing with the
fire and its aftermath. The burden thus shifts to Higginbotham to allege facts that, if proven,
show that Roberts’s encounter with him or seizure of him violated his clearly established
constitutional rights. Higginbotham alleges that Roberts’s conduct during this incident
represents an illegal momentary seizure of his person and excessive force attendant to that
seizure. Higginbotham was not in a car at the time. He does not allege that Roberts arrested him
or handcuffed him or prevented him from leaving the premises; his allegations of “seizure”
appear to be based on verbal threats, one shove with no resulting physical injury, and the
sergeant’s removal of his handgun from its holster and then replacement of it without pointing it
at Higginbotham. Further, Higginbotham does not allege that Roberts searched him or seized
his property. Accordingly, the court characterizes this incident as a brief encounter between
police and citizens, which requires no objective justification. Even assuming arguendo that this
incident did constitute a momentary seizure, however, the court finds that no constitutional
violation occurred.
Higginbotham cites no case law decided as of April of 2011 establishing that such
conduct constitutes a violation of constitutional rights. Other ways he can meet his burden is by
“(2) pointing to a ‘broader, clearly established principle’ that controls ‘the novel facts of the
situation;’ (3) or ‘demonstrating that the conduct involved in the case’ so obviously violates ‘the
constitution that prior case law is unnecessary.’” See Terrell v. Smith, 668 F.3d 1244, 1255-56
(11th Cir. 2012). Higginbotham has pointed the court to no broader, clearly established principle
controlling this situation nor has he demonstrated by the alleged facts that every reasonable
officer in Roberts’s shoes would have known that his conduct otherwise obviously violated
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Higginbotham’s constitutional rights. See Marx, 905 F.2d at 1505-06; Montoute, 114 F.3d at 184.
The court FINDS that Higginbotham has not asserted a plausible claim that Roberts’s conduct on
April 29, 2011 violated his Fourth Amendment right. Alternatively, to the extent that he has, the
court FINDS that Roberts is entitled to qualified immunity as to that claim.
Higginbotham also claims that the push constituted excessive force in connection with an
unconstitutional seizure; however, the court need not spill much ink in its analysis. To the extent,
if any, that claim is not subsumed within the claim of unconstitutional search and seizure,
Higginbotham alleges no resulting damage other than momentary discomfort and no resulting
medical care. The court FINDS that the force alleged was de minimus and does not support a
claim for excessive force in violation of the Fourth Amendment. See Nolin, 207 F.3d at 1257
and discussion supra. As to this claim against Roberts regarding the April 29, 2011 encounter,
the motion is due to be GRANTED and that claim is due to be DISMISSED. Because this
pleading is Higginbotham’s third attempt, the dismissal will be WITH PREJUDICE.
C. April 30, 2011 & May 3, 2011
The Second Amended Complaint contains the following allegations about an incident
occurring on April 30, 2011 [actually shortly after midnight on May 1, 2011] and a follow-up
incident on May 3, 2011. Both occurred shortly after a tornado had hit and badly damaged areas
of Pleasant Grove resulting in U.S. Marshal presence to assure safety of citizens and to prevent
looting.
The plaintiff states that he left Chris Gardner’s home at
approximately 12:10 a.m. The plaintiff states that when he stopped at
the intersection of 9th Avenue, and 4th Street he was approached by
three (3) men who claimed they were U.S. Marshals. The plaintiff
alleges that one man opened his driver side door, and told him to get
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out. The plaintiff alleges that he asked this man what his problem
was, and the man replied, “These police officers have told us that
you are a looter, and a heroin dealer”. The plaintiff states that he
was so outraged at this statement, that he exited the car in order to
determine which police officers were responsible for this slander.
The plaintiff alleges that when he asked the man in question who had
told him these lies, the man pointed to Sgt. Ed. Roberts. The
plaintiff alleges that another man approached him, claimed to be a
U.S. Marshal, shoved the plaintiff backwards against the car, and
made the [accusation against Higginbotham of being strung out on
drugs and concealing heroin in this vehicle.] The plaintiff states that
he told this man... that he was free to search Chris Gardner’s car for
heroin, if he so desired. The plaintiff alleges that all three (3) men
who had claimed to be U.S. Marshals, began to search the car.. . .The
plaintiff states that all of these men were extremely upset when they
could not find any heroin in the car. The plaintiff alleges that the
man who had opened his driver side door, approached him for a third
time, and made the statement, “These police officers claim that you
are concealing heroin in your work boots, since we cannot find it
in the car’. The plaintiff states that he removed his left, work boot,
and allowed this man to examine it. The plaintiff alleges that the
man who had shoved him against the car, noticed talcum powder in
his work boot, shoved him backwards against the car again, and
made the accusation [that he was concealing heroin in his work
boots.] The plaintiff alleges that Sgt. Ed Roberts then approached
him, shoved him backwards against the car, and made that
accusations, “We know that you, and Chris are dealing heroin...
And I will stop you, one way or another”. The plaintiff alleges
that Sgt. Roberts then ordered a Pleasant Grove Police Officer to
write the plaintiff a traffic citation. The plaintiff states that when
said Officer informed Sgt. Roberts that the plaintiff had not
committed any traffic violations, Sgt. Roberts became belligerent,
and shouted, “Just write him a damned ticket for anything, and I
will sign it” ... He’s been warned that coming into Pleasant
Grove would cost him a fortune, and I’m going to make sure that
it does”! The plaintiff states that said Officer asked the plaintiff for
his driver’s license, and wrote him a citation for operating a motor
vehicle with bald times, and that Sgt. Roberts signed it. The plaintiff
states that Chris Gardner’s car did NOT have bald tires at this time.
Therefore, the plaintiff alleges that Sgt. Roberts falsified this
citation. . . . The plaintiff alleges that Sgt. Roberts then made the
statement, “You admit that you went to Bill Howard’s house!
That proves you are a god-damned heroin dealer”! The plaintiff
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alleges that when he attempted to leave, Sgt. Roberts shoved him
backwards against the car for a third time, and made the threats,
“you have been told several times to stay out of Pleasant Grove
... I am telling you now that I will only allow you to enter
Pleasant Grove one more time, and that will be to pay this
ticket... I will NOT allow you to have this ticket voided”. [The
plaintiff then accused Roberts of violating his civil rights and
promised to make an appeal bond to the county on Tuesday.] Sgt.
Roberts then made the threats, “You will NOT come into Pleasant
Grove on Tuesday ... I will see to that ... I stopped you from
driving your van, and I will stop you from driving this car ... I
will issue a written order to every check point that you are NOT
allowed to enter Pleasant Grove, and I will have it signed by the
Mayor!” The plaintiff alleges that the man who had opened his
driver side door approached him, and Sgt. Roberts at this time, and
made the following threats, “These police officers claim that you
are a heroin dealer, and we have no reason to doubt them... They
do not want you in their city ... I am a U.S. Marshal, and I am
ordering you to stay out of Pleasant Grove.... If you ever enter
Pleasant Grove again, you will be arrested, and jailed”. The
plaintiff alleges that Sgt. Roberts then made the threat, “Did you
hear that, Barry? That’s an order from the Marshal’s office...
You had better stay out of Pleasant Grove, or you will be
arrested twice...Once by me, and then a second arrest by the
Marshal’s Office”! The plaintiff alleges that Sgt. Roberts removed
his handgun from its holster, and then returned it to its holster.
***
The plaintiff states that on May 03rd of 2011, he entered the City of
Pleasant Grove, in order to make his appeal bond to Jefferson
County. . . . The plaintiff alleges that when he stopped at the
intersection of 4th Street and 9th Avenue, he was informed by the
National Guard Soldiers that he was NOT allowed to proceed any
farther into Pleasant Grove. The plaintiff states that he informed
these Soldiers that he had legal business at the Pleasant Grove
Courthouse, which required his personal attention. The plaintiff
alleges that the Soldiers informed him that they had been instructed
by the U.S. Marshal’s Office, the Pleasant Grove Police Dept., Sgt.
Ed Roberts, and the Mayor’s Office that he was NOT allowed to
enter Pleasant Grove for any reason. The plaintiff alleges that he was
forced to turn around, and leave the City Limits of Pleasant Grove.
(Doc. 13, at 22-23). Higginbotham alleges that these incidents represent, among other things, an

56

illegal seizure in violation of the Fourth Amendment, with attendant excessive force.
The court FINDS that Roberts was acting within the scope of his discretionary authority
when he encountered Higginbotham on April 30, 2011 as he was patrolling the streets of Pleasant
Grove with U.S. Marshals after midnight in the aftermath of a tornado. The burden thus shifts to
Higginbotham to allege facts that, if proven, show that Roberts’s conduct violated his clearly
established constitutional rights.
The court notes that Higginbotham does not claim that Roberts stopped him on April 30,
but, instead, claims that U.S. Marshals stopped him as he was driving in the storm-damaged area
of Pleasant Grove after midnight. Without a stop by Roberts, the court is not sure what Plaintiff
alleges was the “seizure” of him by Roberts. The alleged facts do indicate that the Marshals had
spoken to Roberts before the Marshals stopped Higginbotham and indicates that the conversation
with Roberts resulted in his stop. In any event, the facts reflect that exigent circumstances
existed for the April 30 stop because of the tornado damage and the late hour, providing arguable
reasonably articulated suspicion for the stop. According, the court FINDS that Roberts’s
involvement in the stopping of Higginbotham’s car on April 30 does not violate the Fourth
Amendment by law clearly established as of April of 2011, and he is entitled to qualified
immunity as to that claim.
Higginbotham acknowledges that the subsequent search of Gardner’s car on April 30 was
a search performed with Higginbotham’s express permission. Higginbotham also specifically
states that he himself removed his work boot and “allowed” one of the Marshals to examine it.
Therefore, because he gave consent, those searches cannot represent a constitutional violation.
Other aspects of the April 30 incident are more troubling from a due process standpoint,
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but do not involve search and seizure, and, thus, the court will address and analyze that conduct
as potential due process violations later in the opinion.
As to the Fourth Amendment illegal search and seizure claim against Roberts regarding
the April 30, 2011 incident, the court FINDS that Higginbotham has not alleged a plausible
claim. Alternatively, to the extent, if any, that he has alleged a plausible claim, the court FINDS
that Roberts is entitled to qualified immunity. Accordingly, the motion to dismiss is due to be
GRANTED as to this claim against Roberts, and it will be DISMISSED. Because this pleading
represents Higginbotham’s third attempt, the dismissal will be WITH PREJUDICE.
In sum, the only Fourth Amendment claim against Roberts that will proceed is the one
involving the March 27, 2010 incident.
(2) Count Two - Excessive Force against Roberts
In paragraph 93 of the Second Amended Complaint, Higginbotham alleges that Officer
Roberts used excessive force in unlawfully drawing his handgun on April 29 and April 30, 2011
in the presence of Higginbotham. Higginbotham does not allege that Roberts pointed the gun at
him, but alleges that on both occasions Roberts took it out of the holster and replaced it in
Higginbotham’s presence. Further, he alleges that Roberts shoved him backwards against a car
on both occasions. To the extent, if any, that the claim is not subsumed within the claim of
unconstitutional search and seizure, Higginbotham has alleged no resulting damage other than
momentary discomfort and no resulting medical care.
The court FINDS that the force alleged was de minimis and does not support a claim for
excessive force in violation of the Fourth Amendment. See Nolin, 207 F.3d at 1257, and
discussion supra. Thus, the motion to dismiss is due to be GRANTED as to this claim for
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excessive force against Roberts; the court will DISMISS it WITH PREJUDICE because this
pleading is Higginbotham’s third attempt.
(3) Count Eight - Due Process Violations
Higginbotham’s Count Eight does not break down the due process allegations by
individual Defendant or specifically name the Defendants against whom this claim applies.
However, he refers in this count to “malicious harassment,” “guilt by association,” the denial of
his right to file an appeal bond and appeal traffic citations, and finally, the prevention of his
ability to own and operate a motor vehicle and “to visit individual with whom he maintains
personal relationships.” Because those allegations, set out elsewhere in the Second Amended
Complaint, involve Roberts, the court will address them here.
The Fourteenth Amendment’s Due Process Clause requires “that a deprivation of life,
liberty or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of
the case.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). To bring a procedural due process
claim under § 1983, a plaintiff must prove the following elements: “‘(1) a deprivation of a
constitutionally-protected liberty or property interest; (2) state action; and (3) constitutionallyinadequate process.’” Catron v. City of St. Petersburg, 658 F.3d 1260, 1266 (11th Cir. 2011)
(quoting Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003)). Citizens “have a
constitutionally protected liberty interest to be ... on ... city lands of their choosing that are open
to the public generally.” Id.; see also City of Chicago v. Morales, 527 U.S. 41, 54 (1999)
(recognizing that “the freedom to loiter for innocent purposes is part of the ‘liberty’ protected by
the Due Process Clause of the Fourteenth Amendment” and stating “an individual’s decision to
59

remain in a public place of his choice is as much a part of his liberty as the freedom of movement
inside frontiers that is ‘a part of our heritage,’ or the right to move ‘to whatsoever place one’s
own inclination may direct.’”).
Citizens also enjoy a liberty interest in their freedom of association. See, e.g., NAACP v.
Alabama, 357 U.S. 449, 465-66 (1958) (recognizing the freedom of association as a fundamental
value implied in the First Amendment guarantees coming under the protection of the Fourteenth
Amendment due process clause). Finally and fundamentally, citizens enjoy the right of access to
courts, the infringement of which is subject to heightened judicial scrutiny. Tennessee v. Lane,
541 U.S. 509, 510 (2004).
Higginbotham’s Second Amended Complaint can be read as alleging against Roberts a
deprivation of property by impounding and damaging his van, a deprivation of his liberty rights
in preventing him from entering the city to access courts and for other innocent purposes, and in
prevening him from associating with people of his choosing.
The court will first address Higginbotham’s characterization of Officer Roberts’s
statements to him as a confession of sorts to damaging his van and, thus, taking his property
without due process of law. Officer Roberts was not involved in the September 22, 2010 stop
and arrest of Higginbotham, resulting in the impounding of his van. Higginbotham alleges that
significant damage occurred to his van during the time he was in jail and his van was impounded:
his radiator cap had been removed, his tag light was missing, his radiator drain valve had been
opened causing his van to overheat on the way home, both radiator hoses had been loosened, the
engine was damaged requiring rebuilding, the heads were cracked, and four bolts holding the
water pump in place had been loosened and backed out of the engine block one-quarter of an
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inch. Although Higginbotham did not initially know who was responsible for these damages, he
alleges that Roberts’s subsequent statements to him in April of 2011 represent an
acknowledgment of Roberts’s responsibility for that damage: “ I stopped you from driving your
van, and I will stop you from driving this car. . .”
The court disagrees that Roberts’s statement is obviously and necessarily a confession of
responsibility for the damage to Higginbotham’s van. The statement could just as easily
represent Roberts’s acknowledgment that he and other officers had given Higginbotham
appropriate traffic citations related to his driving the van. Roberts’s statement referring to
stopping Higginbotham from driving his van does not, in and of itself, support a plausible claim
for violation of due process through damage to his van.
However, taken as a whole, and if true, Higginbotham’s allegations about Roberts’s
various statements to him do state a plausible claim that Roberts had a plan or orchestrated a plan
in which a number of Pleasant Grove officials participated (1) to stop Higginbotham from
enjoying his rights to personal mobility within the City of Pleasant Grove and freedom of
association with people in Pleasant Grove because of Higginbotham’s association with supposed
drug dealers and junkies; and (2) to stop Higginbotham’s access to the courts to appeal his
convictions. The court notes that Higginbotham has alleged facts supporting his claim that
Roberts was behind the harassment and the prevention of his traveling into and around Pleasant
Grove; according to those alleged facts, Roberts ordered Higginbotham to stay out of Pleasant
Grove and specifically told Higginbotham that he had such a plan.
Other facts indicate that Roberts’s statements to Higginbotham were not idle threats but
that Roberts carried through with them; the officers stopping Higginbotham on March 28, 2010
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and May 3, 2011 specifically told him that they were following orders of Roberts (and other
Pleasant Grove city officials). And, even though Higginbotham allegedly communicated to
Roberts at the end of April of his need to enter the city for a legitimate purpose – filing an appeal
bond, Pleasant Grove officials still prevented him from entering the city on May 3, 2011 without
providing him a hearing or any other process at the time.
Further, the allegations of the Second Amended Complaint reflect that Roberts’s order
preventing Higginbotham’s entry into the city occurred after Higginbotham discussed with
Roberts his intention to enter the city for access to the court to file an appeal, and after Roberts
specifically told him that he would issue an order preventing that access.
Higginbotham’s allegations in the instant case satisfy the first and second elements of a
procedural due process claim. Given the factual allegations, the court must conclude that “there
is more than a sheer possibility” that Higginbotham has been deprived of a constitutionally
protected liberty interest by state action. See Iqbal, 556 U.S. at 678.
The remaining question is whether the allegations reflect constitutionally inadequate
process. The factual allegations in the instant case show that a process existed regarding police
issuance of the tickets to Higginbotham when he entered Pleasant Grove and his challenge to that
ticketing. However, the allegations further show that Roberts and the City of Pleasant Grove
interfered with that process with the action taken on May 3, 2011, preventing Roberts from
having access to the courts to appeal the judgment that he was guilty of the traffic charges and
criminal possession of Paxil. Further, the facts as alleged show that the city provided no
“process” on May 3, 2011 and thereafter for Higginbotham to object to his being turned away
from the city limits on that date. The pleading does state that a tornado had recently ravaged the
62

Pleasant Grove area, but it also states that the May 3 incident occurred during the day and when
the courthouse was open for business. The court FINDS that Higginbotham has sufficiently
alleged a deprivation of due process.
As discussed previously, because Roberts raises qualified immunity, the court FINDS that
any reasonable officer in Roberts’s shoes would know that the alleged conduct – ordering a
citizen to stay out of a city based only on his association with others, and then making sure that
other officers carried through that order to prevent him from entering a city to go to court and
appeal a conviction – constituted a deprivation of the citizen’s liberty interests and violated that
citizen’s clearly established rights to due process. Accordingly, the court DENIES the motion to
dismiss as to the claim in Count Eight against Roberts.
(4) Count Ten- Defamation of Character resulting in a violation of constitutional
rights
In Count Ten of the Second Amended Complaint, Higginbotham claims that Roberts
defamed his character when he allegedly told two United States Marshals that Higginbotham was
a heroin dealer and that this defamation resulted in a violation of his constitutional rights.
Although Count Ten does not specify which constitutional rights were abridged, the court
assumes that he alleges a due process violation, i.e., that Roberts deprived him of a
constitutionally protected interest and that his reputation was such an interest. However,
“allegations of injury to reputation alone do not support a section 1983 claim for violation of due
process, and therefore must be accompanied by a constitutionally recognized injury.” Cypress
Ins. Co. v. Clark, 144 F.3d 1435, 1436 (11th Cir. 1998). Under this “stigma-plus” standard, a
plaintiff must show that the government not only damaged his reputation but also deprived him

63

of a constitutionally recognized property or liberty interest.
In Count Ten, the Second Amended Complaint specifically refers back to ¶ 63, in which
Higginbotham recounts that Roberts issued to him a false citation for driving a vehicle with bald
tires, and ordered him not to re-enter the City of Pleasant Grove except to pay the false citation
even though Higginbotham communicated his intention to transact legal business and to make an
appeal bond to the County at a courthouse within the Pleasant Grove city limits. The U.S.
Marshal ordering Higginbotham to stay out of the city allegedly tied that order to Roberts’s
defamatory statement, explaining that “These police officers claim that you are a heroin
dealer, and we have no reason to doubt them. . . .” (Doc. 13, at 23) (emphasis in original).
A subsequent paragraph of the pleading alleges that when Higginbotham later attempted
to re-enter the city to post the appeal bond and to transact legal business at the courthouse,
National Guard soldiers refused to let him past a checkpoint, citing orders from Roberts, the U.S.
Marshal’s office and others. The evidence eventually may show that the reason why
Higginbotham and others were turned away from Pleasant Grove was because of the emergency
situation from the tornado, not because of orders from Roberts and others that Higginbotham
himself was excluded from the City because of a feud between him and city officials. If the
evidence reflects that the emergency situation was the true reason, that reason would be a solid
defense. However, the court must accept the allegations as true, and these allegations appear to
state a claim under the stigma-plus standard. Further, although Roberts raises his entitlement to
qualified immunity, every reasonable officer in his shoes would have known that preventing a
citizen from re-entering the city to pursue his legal rights under these alleged circumstances – a
feud between the non-violent citizen and city officials – and without legal justification, would be
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a well-established violation of the citizen’s constitutional rights. Further, the alleged defamation
was tied to that constitutional deprivation. Consequently, at this stage of the case, and given
Higginbotham’s pro se status, the court FINDS that the motion to dismiss is due to be DENIED
as to this claim against Roberts.
In sum, the court FINDS that the motion to dismiss is due to be GRANTED as to the
following claims against Roberts: Count One as to April 29, 2011, April 30, 2011, and May 3,
2011 incidents; Count Two; and Count Five. The court will DISMISS those claims, and because
this pleading is Higginbotham’s third, the dismissal will be WITH PREJUDICE. The claims
asserted against Roberts in the following counts will proceed at this stage: Count One as to the
March 27, 2010 incident; Count Six; Count Eight; and Count Ten.
d. Individual Claims against Nathan BULLARD
The Second Amended Complaint asserts the following claims against Officer Bullard
individually: (1) Count One - § 1983 claim for unlawful search and seizure on March 28, 2010
and October 12, 2010 in violation of the Fourth Amendment; (2) Count Two - § 1983 claim for
excessive force; and (3) Count Eight - § 1983 claim for violation of due process rights. The
court has previously addressed and dismissed the tort of outrage claim, which is asserted against
Bullard, in Count Five, and the Defendants’ motion to dismiss does not encompass the claim for
assault asserted in Count Six against Bullard.
(1) Count One - § 1983 claim for unlawful search and seizure
Count One alleges that Bullard violated Higginbotham’s rights under the Fourth
Amendment, guaranteeing citizens’ right “to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The Second
65

Amended Complaint identifies two “unlawful search and seizure” incidents involving Officer
Bullard: March 28, 2010 and October 12, 2010.
A. March 28, 2010
According to the Second Amended Complaint, on about 9:45 p.m. on March 28, 2010,
Higginbotham left Bill Howard’s residence in Pleasant Grove, and two Pleasant Grove police
cars began following him even though he had committed no criminal actions or violations of
municipal ordinances during that trip. Earlier that same day, police cars had followed him on
two separate trips to or from Bill Howard’s residence. Higginbotham makes the following
allegations about the 9:45 p.m. stop:
Officer Nathan Bullard approached his van on the driver side, and []
Officer Michael Green approached on the passenger side. The plaintiff
alleges that Officer Bullard quickly shoved a spotlight in his face,
temporarily blinding him. The plaintiff then asked Officer Bullard why he
had been pulled over, when he had committed no crime. The plaintiff
alleges that Officer Bullard made the statement, “You just left a known
drug house!”! The plaintiff informed Officer Bullard that leaving a
known drug house was not a crime specifically defined in the Alabama
Code. The plaintiff alleges that Officer Bullard became argumentative and
then loudly stated, “You just left a house in which several people have
overdosed’! The plaintiff informed Officer Bullard that leaving a house
in which several people have overdosed, was also not a crime specifically
defined in the Alabama Code. The plaintiff alleges that Officer Bullard
became even more argumentative, became belligerent, grasped his
handgun, attempted to open the plaintiff’s driver door, and demanded that
the plaintiff exit his van so they could discuss the situation. The plaintiff
informed him that his driver door was damaged, and that he had to exit on
the passenger side. The plaintiff alleges that, at this moment, Officer
Michael Green became agitated on the passenger side of the van, drew his
handgun from its holster, and then loudly shouted, “You should have told
us you had a gun”! The plaintiff alleges that Officer Bullard then drew his
handgun from its holster and pointed it directly at the plaintiff. The
plaintiff alleges that both Officers forced him to exit his van, at gunpoint.
After the plaintiff exited his van, he informed Officer Green that he did not
have a gun. Officer Green then made the statement, “I see a 9mm
66

handgun under your seat”! [The plaintiff stated that the gun to which
Green referred was a toy that fires plastic BB’s, told the officers it was a
toy, which the officers eventually confirmed.] The plaintiff alleges that
Officer Bullard repeatedly shoved his spotlight in the plaintiff’s face, and
then stated, “You have nystagmus... That means you are drunk, and
under the influence of drugs.” The plaintiff informed Officer Bullard that
he did not have nystagmus, was not drunk, and was not under the influence
of drugs. The plaintiff alleges that Officer Bullard made the statement,
“You just left Bill Howard’s House... That makes you a god-damned
heroin dealer, or a god-damned junkey. We’ve been watching and
following you all week... We know the times you have arrived at Bill’s,
and the times you have left!” The plaintiff informed Officer Bullard that
he would not tolerate language of this nature. Officer Bullard then asked to
see the plaintiff’s arms, in order to look for needle tracks. The plaintiff had
no objection to showing his arms, but when no needle tracks could be
found, the plaintiff alleges that Officer Bullard became very angry, grabbed
the plaintiff, shoved him into the passenger side of his van, and began to
conduct an illegal search of the plaintiff’s person. The plaintiff alleges that
Officer Bullard made the threat, “If I get stuck with a dirty needle, I will
blow your god-damned head off right here and now!” The plaintiff
states that nothing was found on his person during this illegal search. The
plaintiff states that Officer Bullard then wrote him a citation for having an
expired insurance card. The plaintiff informed Officers Bullard, and Green
that their actions constituted violations of his Federal Civil Rights. [The
officers advised Higginbotham that several city officials and Sergeant
Roberts had ordered them] to stop, identify, and search every vehicle and
individual who visits the residence of Bill Howard [, and, when
Higginbotham insisted that he was running legitimate errands, Officer
Bullard warned him to] stay out of Pleasant Grove, [or] he would be
stopped, searched, and ticketed every time he was observed in their
jurisdiction.
(Doc. 13, at 6-7).
These allegations show that Bullard stopped Higginbotham after he had made several
trips in one day to a “known drug house” with a history of patrons overdosing. Higginbotham
contends that stopping and later searching him under these circumstances represents a violation
of his Fourth Amendment rights. The first issue is whether the officer had “reasonable,
articulable suspicion based on objective facts” to pull Higginbotham’s car over in the first place
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simply because he had visited this “known drug house.” See United States v. Nunez, 455 F.3d
1223, 1226 (11th Cir. 2006) (concluding that “ enforcement officers may detain a person briefly
for an investigatory stop if they have a reasonable, articulable suspicion based on objective facts
that the person has engaged in, or is about to engage in, criminal activity”). “An individual’s
presence in an area of expected criminal activity, standing alone, is not enough to support a
reasonable, particularized suspicion that the person is committing a crime.” Illinois v. Wardlow,
528 U.S. 119, 124 (2000).
In the instant case, based on the allegations of the Second Amended Complaint, Bullard
articulated no reason for the investigatory stop of Higginbotham except that Higginbotham had
left Howard’s home. The facts, as alleged, indicate that Higginbotham did not violate any
traffic laws or ordinances, except his failure to have an up-to-date insurance card, which the
officers did not know prior to the stop. Bullard did not accuse him of committing any traffic
violation or behaving suspiciously; when Higginbotham asked why he had been stopped,
Bullard’s only articulable reason was that he had left a known drug house. Although Bullard
later accused Higginbotham of being drunk or under the influence of drugs, that accusation was
based on Higginbotham’s eye movements when the officer shone light on them, something the
officer did not see until he stopped the car and could not have observed from a distance at night.
The court FINDS that the facts alleged reflect that Bullard had no reasonable articulable
suspicion to pull Higginbotham over. Further, the court FINDS that any reasonable officer in
Bullard’s position would know that stopping a car simply because the citizen left a known drug
house, without more, constitutes a violation of the Fourth Amendment law, clearly established
as of March 28, 2010. See Wardlow, 528 U.S. at 124. Therefore, based on the facts alleged,
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Officer Bullard is not entitled to qualified immunity. The motion to dismiss is due to be
DENIED as to this claim.
B. October 12, 2010
On this occasion, Higginbotham drove away from the home of Chris Gardner about 1:30
p.m. on October 12, 2010 in Gardner’s car to pick up a friend, Andrew Howe, from a probate
court meeting in the Bessemer county courthouse. Officer Bullard stopped him en route and
Bullard made the comment that the officer had assumed he was stopping Gardner. Bullard then
called three more officers as backup, and informed Higginbotham: “Just for the record,
driving this car is going to get you stopped a lot, okay?” Bullard proceeded to question him
about Gardner, Bill Howard’s son, and John and Debra Bates.
Higginbotham characterizes this stop as an illegal search and seizure because no reason
existed to stop the car. See Delaware v. Prouse, 440 U.S. 648, 648 (1979) (“Stopping an
automobile and detaining its occupants constitute a ‘seizure’ within the meaning of the Fourth
and Fourteenth Amendments, even though the purpose of the stop is limited and the resulting
detention quite brief . . .”). However, elsewhere in the pleading, Higginbotham states that
Gardner’s license had been revoked, and the city officers were aware which car was Gardner’s.
Further, Higginbotham alleges no attendant search of Higginbotham or the vehicle he was
driving. Therefore, the court FINDS that, based on the facts alleged, reasonable articulable
suspicion existed for the stop – that is, a suspicion that the driver was operating a car without a
license, because the officer recognized the car as belonging to a person whose driver’s license
had been revoked. Alternatively, the court FINDS that every reasonable officer in Bullard’s
position would not have known that this conduct violates Higginbotham’s Fourth Amendment
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rights, and Bullard is entitled to qualified immunity. Therefore, the court FINDS that the
motion to dismiss is due to be GRANTED as to this claim against Bullard; the claim is due to be
DISMISSED. Because this pleading is Higginbotham’s third attempt, the court will dismiss it
WITH PREJUDICE.
(2) Count Two - § 1983 claim for excessive force against Bullard
In this Count, Higginbotham claims that Bullard’s conduct of shining a light into
Higginbotham’s face and forcing him to exit his van at gunpoint constituted excessive force.
Because this alleged use of force occurred in the process of traffic stops that Higginbotham
characterizes as illegal stops and seizures, the court FINDS that this claim “is subsumed in the
illegal stop or arrest claim and is not a discrete excessive force claim.” See Jackson, 206 F.3d at
1171. Alternatively, Higginbotham alleges no resulting damage or medical care, and the court
FINDS that the force alleged was de minimus and does not support a claim for excessive force in
violation of the Fourth Amendment. See Nolin, 207 F.3d at 1257 and discussion supra.
Thus, the motion to dismiss is due to be GRANTED as to this claim for excessive force against
Roberts; the court will DISMISS it WITH PREJUDICE because this pleading is Higginbotham’s
third attempt.
(3) Count Eight - § 1983 claim against Bullard for violation of due process
Higginbotham alleges that Bullard’s conduct of stopping and/or searching him based on
Higginbotham’s visiting a known drug house violated his constitutional right to due process. As
discussed previously, the allegations that the officer was stopping Higginbotham without
probable cause because Higginbotham visited Howard, as part of a plan to harass Higginbotham
on visits and discourage him from exercising his freedom to move in the city’s public places and
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to freely associate with people of his choice, states a plausible claim of violation of Fourth
Amendment rights.
“Where a particular Amendment ‘provides an explicit textual source of constitutional
protection’ against a particular sort of government behavior, ‘that Amendment, not the more
generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.”
Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395
(1989)). Therefore, the court FINDS that this claim falls under the Fourth Amendment, and will
limit its analysis of this claim to the Fourth Amendment, as already addressed and decided. The
court will GRANT the motion as to any substantive due process claims brought under the
Fourteenth Amendment, and will DISMISS those claims.
In sum, as to the claims asserted against Bullard, the court finds that motion is due to be
GRANTED as to the claims asserted in Count One regarding the October 12, 2011 incident;
Count Two; Count Five; and Count Eight. Those claims will be DISMISSED WITH
PREJUDICE. The claims asserted in Count One as to the March 28, 2010 incident, and Count
Six remain.
e. Individual Claims against Officer Stacy LAWSON
The Second Amended Complaint asserts the following claims individually against Officer
Lawson: (1) Count One - unlawful search and seizure in violation of the Fourth Amendment
regarding the stops on October 31, 2010 and November 28, 2010; and (2) Count Eight violation of due process. The court has previously dismissed the claim for tort of outrage
asserted against all Defendants in Count Five.

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(1) Count One - unlawful search and seizure against Lawson
In this Count, Higginbotham points to two incidents involving Officer Lawson that
Higginbotham characterizes as unlawful searches and seizures: the stop on October 31, 2010, and
the subsequent stop on November 28, 2010.
On October 31, 2010, Higginbotham claims that when he arrived at the home of Chris
Gardner at approximately 5:00 p.m., driving Gardner’s car, two police cars pulled up behind him
with light bars activated. Officer Lawson approached Higginbotham in Gardner’s driveway, and
when he asked why she was following him, she replied, “The owner of this car is revoked.”
(Doc. 13, at 17) (emphasis in original). Lawson took his driver’s license, returned to her police
car, and approximately ten minutes later, issued him a citation for failure to use his turn signal,
which she claimed her dashcam had recorded. Higginbotham does not specifically allege that he
did indeed use his turn signal.
On November 28, 2010, Higginbotham alleges that he left the home of Chris Gardner at
approximately 6:00 p.m. and Lawson stopped him, making the following statements: “Are you
driving this car again... I’m going to stop it every time I see it... I can’t tell who’s driving it... The
owner is revoked... You need to get you your own car.”
Although Higginbotham asserts that Lawson’s conduct on both of these occasions was
unconstitutional, the allegations merely show that Lawson was familiar with the car
Higginbotham was driving at the time, knew that the driver’s license of its owner had been
revoked, and was attempting to determine whether the driver was driving with a revoked license,
i.e., she had a valid reason to stop the car. Given those facts, Higginbotham has not stated a
plausible claim for any constitutional violation in stopping the car, and the motion to dismiss is
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due to be GRANTED as to the claim in Count One asserted against Lawson. Alternatively, the
court finds that the facts as alleged do not show that every reasonable officer in Lawson’s shoes
would have known that she did not have reasonable articulable suspicion to stop the car nor do
they show that her conduct otherwise obviously violated Higginbotham’s constitutional rights.
See Marx, 905 F.2d at 1505-06; Montoute, 114 F.3d at 184. Thus, alternatively, the court finds
that Lawson is entitled to qualified immunity as to the claim in Count One against her. The
motion is due to be GRANTED as to all claims in Count One asserted against Officer Lawson,
and the court will DISMISS them.
(2) Count Eight - Due Process claim against Lawson
In paragraph 70 of the Second Amended Complaint, Higginbotham alleges that the
conduct of Officers Grigsby and Lawson on September 27, 2011 in arresting Higginbotham
pursuant to an arrest warrant violated his due process rights. The court has already found that the
facts alleged against Grigsby regarding this arrest – which are identical to those alleged against
Lawson – did not state a plausible claim for a due process violation. That analysis applies
equally to Lawson.
The court FINDS that the facts alleged do not state a plausible claim against Lawson, and
alternatively, that to the extent they do, every reasonable officer in Lawson’s position would not
know that her actions on September 27, 2011 violated Higginbotham’s due process rights.
Therefore, the motion to dismiss is due to be GRANTED as to that claim against Lawson. The
court will DISMISS that claim.
In sum, as to all claims asserted against Lawson, the court FINDS that the motion to
dismiss is due to be GRANTED. As this pleading is Higginbotham’s third attempt, the court will
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DISMISS those claims WITH PREJUDICE. No claims remain against Lawson; therefore, the
court will DISMISS Lawson as a party Defendant.
4. “Motion to Dismiss” filed by Mayor Brasseale and Director Knight re Individual
Capacity Claims (doc. 26)
In this motion, the City’s Mayor and Public Safety Director request the dismissal of all
claims against them in their individual capacities: Count Three - inadequate training and
supervision of Officers Reed and Grigsby; Count Four - “deliberate indifference through custom”
and policy of excessive use of force and unconstitutional seizures of community citizens; and
Count Five- tort of outrage based on notice that City police officers were drawing their handguns
and repeatedly using their authority to intimidate citizens. The court has already determined that
the tort of outrage claim is due to be dismissed, but the court will address the two remaining
claims separately.
a. Count Three - Inadequate Training and Supervision
As a prefatory statement, as discussed previously, Higginbotham makes claims that
certain officers stopped and searched him and the vehicles he was driving without cause, stole
from him, used excessive force on him, defamed him, assaulted him, and committed the tort of
false arrest and false imprisonment, and maliciously prosecuted him, etc. Although he claims
that Mayor Brasseale and/or Director Knight are guilty of failing to adequately train and
supervise the wrongdoers who committed this wrongful conduct, Higginbotham does not claim
that the Mayor and Director themselves directly performed any of these alleged wrongful actions.
The law provides that “Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior.” Ashcroft

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v. Iqbal, 556 U.S. 662, 676 (2009). In other words, for Higginbotham’s claims to be successful,
he cannot merely allege that Brasseale and Knight are automatically liable merely as trainers and
supervisors of the wrongdoers. Rather, he "must plead that each Government-official defendant,
through his own individual actions, has violated the Constitution." Id. Stating a claim against a
government official is not easy: “[t]he standard by which a supervisor is held liable in [his]
individual capacity for the actions of a subordinate is extremely rigorous.” Mann v. Taser Int’l,
588 F.3d 1291, 1308 (11th Cir. 2009).
Supervisory liability under § 1983 attaches either when "the supervisor personally
participates in the alleged constitutional violation or when there is a causal connection between
the actions of a supervising official and the alleged constitutional violation.” Myers v. Bowman,
713 F.3d 1319, 1328 (11th Cir. 2013).

"A causal connection can be established by, inter alia,

'facts which support an inference that the supervisor directed the subordinates to act unlawfully
or knew that the subordinates would act unlawfully and failed to stop them from doing so.'"
Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010) (quoting Gonzalez v. Reno, 325
F.3d 1228, 1235 (11th Cir. 2003)). A supervisor cannot be held liable pursuant to § 1983 for
negligence in the supervision or training of his employees. Greason v. Kemp, 891 F.2d 829, 83637 (11th Cir. 1990).
The court notes that another method of stating a claim against a supervisory defendant is
to allege the existence of the supervisor’s custom or policy that resulted in deliberate indifference
to the plaintiff’s constitutional rights, as alleged in Count Four and addressed subsequent to this
discussion. Accordingly, the court will address whether Higginbotham, in his Second Amended
Complaint, has plausibly alleged a causal connection between the actions of Mayor Brasseale and
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Director Knight.
Count Three of the Second Amended Complaint, entitled “Inadequate Training and
Supervision,” states that the Mayor and Director
failed to adequately train, and supervise the Pleasant Grove Police Officers,
including Mark Reed, Jonathan Grigsby, in the areas of seizure, arrest
procedures, investigatory stops, the use of force, the use of firearms, and the
constitutional rights of their citizens. The Defendants, therefore exhibited
reckless disregard for, and deliberate indifference to the Plaintiff.
Additionally, the Defendants failed to monitor the activities of the law
enforcement officials, and failed to properly supervise their activities, and
conduct. Defendants Mayor Jerry W. Brasseale, and Public Safety Director,
Robert J. Knight were made aware of the Defendants’ actions, but failed to
take any type of corrective action. Said failure to supervise, resulted in injury
to the Plaintiff.
(Doc. 13, at 29, ¶ 95). It also incorporates by reference the preceding paragraphs of the
pleadings.
To expect the court and the other parties to pick through 89 paragraphs and to speculate
about what sentences might or might not fall under Higginbotham’s claim in Count Three is not
appropriate and is not a role that this court should have to play. However, keeping in mind
Higginbotham’s pro se status, the court has attempted to do so, and notes the following
paragraphs:
*¶ 16 (Stating that on Sunday, March 28, 2010, Officer Bullard and Green
informed Higginbotham that Brasseale, among others, had ordered them) “to stop,
identify, and search every vehicle and individual who visits the residence of Bill
Howard” and they promised he would be “stopped, searched, and ticketed every
time he was observed in their jurisdiction.” (Doc. 13, at 6).
* ¶¶ 7-11 (Stating that officers harassed Higginbotham by following him
and stopping him when he was driving to/from Howard’s house in Pleasant Grove
on March 27, 2010 - no citation); 13-18 (same March 28, 2010 - citation for
expired insurance card); 24-35 (stating that officers harassed Higginbotham by
following him and stopping when he was visiting Chris Gardner’s house and Bill
Howard’s house in Pleasant Grove, eventually arresting him on September 19,
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2010 for criminal possession of prescription drugs, carrying a concealed weapon,
operating a vehicle without a tag light); 43 -45 (officer harassed him when he was
driving Gardner’s car on October12, 2010 - no citation); 47-48 (officer harassed
him when he was driving Gardner’s car on October 31, 2010 and gave him a
citation for failure to use turn signal); 49-50 (officer harassed him when he was
driving Gardner’s car on November 28, 2010 - no citation); 60 (he went to
Gardner’s house on April 28, 2011 and was told by national guard that no one
could enter Pleasant Grove after 9 PM); 61 (officer harassed him when he was
visiting Gardner’s home on April 29, 2011 - given a ticket for driving on bald
tires); 63-64 (officers harassed him when he visited Gardner’s home on April 30,
2011); 66 (officers harassed him when he tried to enter Pleasant Grove to conduct
legal work at courthouse on May 6, 2011);
*¶ 20 stating that on April 1, 2010, Higginbotham mailed a letter to
Brasseale complaining about the harassment he had received from the police
department (alleged wrongful stops and searches of his vehicle and attendant
alleged improper use of force against him when he visited Bill Howard violating
his constitutional rights) through March 28, 2010, and received no response from
Brasseale which “constitutes prima facie evidence that Mayor Brasseale did in fact
order the Pleasant Grove Police Dept. to stop, identify, and search every vehicle,
and individual who visits the residence of Bill Howard.” 3
*¶ 42 stating that on October 4, 2010, Higginbotham mailed another letter
of complaint to Brasseale outlining further harassment involving Officers Reed and
Grigsby that allegedly occurred on September 19, 2010 and violated his
constitutional rights, and demanding a police investigation
*¶ 51 stating that on January 3, 2011, Higginbotham mailed a letter to the
City of Pleasant Grove reiterating complaints he had made in his April 1 letter to
the Mayor and demanding a police investigation. The City never responded to his
letter.
* ¶ 63 stating that Sergeant Roberts allegedly issued a false citation for
driving on bald tires and after he and U.S. Marshals ordered Higginbotham to stay
out of Pleasant Grove, including to do legal work at the courthouse on Tuesday,
May 3, 2011, Roberts said: “You will NOT come into Pleasant Grove on
Tuesday... I will see to that... I stopped you from driving your van, and I will stop
you from driving this car.... I will issue a written order to every checkpoint that you
are NOT allowed to enter Pleasant Grove, and I will have it signed by the Mayor!”!
*¶ 65 stating that when Higginbotham attempted to enter the City of
Pleasant Grove on May 3, 2011 to perform legal business at the county courthouse,
including making an appeal bond, solders informed him that they had instructions
from others, including “the Mayor’s Office that he was not allowed to enter
Pleasant Grove for any reason. The plaintiff alleges that he was forced to turn
around and leave the City Limits of Pleasant Grove.” [Higginbotham proceeds to

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allege that although this incident occurred shortly after a tornado caused damage to
areas of Pleasant Grove, the City Hall and county courthouse were not damaged
and were open for business on May 3, 2011.]
* ¶ 66 stating that Higginbotham mailed a letter of complaint against
Sergeant Roberts and others to the City of Pleasant Grove on May 6, 2011 and sent
a second copy on June 6, 2011, with a third letter sent on Jun 29, 2011, outlining
his charges of constitutional violations occurring in April of 2011 and explaining
that Sergeant Roberts and others had prevented him from making an appeal bond.
The City never responded to these letters.
(Doc. 13).
(1). Supervisory Liability
Supervisory liability under § 1983 attaches either when "the supervisor personally
participates in the alleged constitutional violation or when there is a causal connection between
the actions of a supervising official and the alleged constitutional violation.” Myers v. Bowman,
713 F.3d 1319, 1328 (11th Cir. 2013). Higginbotham has not alleged that Brasseale and Knight
were present at the time the wrongful acts occurred. But, he has alleged facts that he claims
would establish a causal connection. Accordingly, the court will address whether Higginbotham,
in his Second Amended Complaint, has plausibly alleged a causal connection between the
actions of Mayor Brasseale and Director Knight.
A. Supervisory Liability for Directing Acts
One means of alleging a causal connection is to state a plausible claim that a defendant
directed the unlawful acts of others. In the instant case, Higginbotham has alleged in Count
Three that Mayor Brasseale and Director Knight failed to adequately train and supervise the
alleged active wrongdoers. Except to the extent that it incorporates by reference preceding
paragraphs, the text of Count Three does not specifically state that Brasseale or Knight directed
the wrongdoers from acting as they did, but simply uses conclusory language that their liability
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hinges upon alleged sins of omission: the failure to train, the failure to supervise, the failure to
monitor, the failure to take corrective action.
Having examined the paragraphs of facts that Count Three incorporated by reference, the
court FINDS that Higginbotham has alleged no facts stating that Knight directed the wrongful
activity. Higginbotham has alleged that, on two different occasions, officers allegedly violating
his constitutional rights had expressly advised him that they were doing so at the direction of
Mayor Brasseale or the Mayor’s office. However, he has alleged no facts stating that Knight
was the person in the Mayor’s office providing that direction. Accordingly, the court FINDS
that Higginbotham has not alleged a causal connection based on Knight’s direction of the
wrongful activity, and thus, has not stated a plausible claim against Knight on that theory.
As noted above, Higginbotham specifically alleged that Brasseale directed wrongful
activity and has also alleged that he wrote Brasseale and complained about the violation of his
constitutional rights and that Brasseale failed to respond. While the court disagrees with
Higginbotham that Brasseale’s failure to respond is prima facie evidence that he directed such
activities, the allegations about the letters do include facts which, if proven, would indicate that
the Mayor was notified of the incidents. Those facts, added to the officers’ words about the
Mayor’s involvement, could represent believable evidence that the Mayor was indeed directing
the harassment of Higginbotham and that the harassment violated Higginbotham’s constitutional
rights as previously discussed.
In any event, the court FINDS that Higginbotham has alleged a causal connection
between the alleged constitutional violations and the Mayor’s own conduct based on factual
allegations supporting an inference that the Mayor directed the unlawful action.
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B. Supervisory Liability for Knowledge plus Failure to Stop
In Count Three, Higginbotham also attempts to establish a causal connection by alleging
that Brasseale and Knight “were made aware of the Defendants’ actions, but failed to take any
type of corrective action.” (Doc. 13, at 29). The Defendants can be “made aware” of the
constitutional violations by being told or by widespread abuse that is so “obvious, flagrant,
rampant and of continued duration” that the Defendants are considered to receive notification as
a matter of law. See Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990).
Higginbotham has alleged no such widespread abuse. Indeed, although he has alleged
that the Mayor and other city officials directed officers to stop, identify, and search anyone
visiting the home of Bill Howard, he has not alleged that the officers actually harassed any
citizens except himself and the people riding with him, that this harassment was so widespread
that it was public knowledge or known at City Hall (except known by those directing it), or that
the harassment had been the subject of media attention or of other citizen complaints.
Higginbotham has alleged that he sent letters to the Mayor or his office beginning on
April 1, 2011, but the Second Amended Complaint presents no similar factual allegations
notifying Knight of a need to take corrective action. The generic allegation in Count Three that
Knight was aware of the constitutional violations and did nothing is a mere conclusion, devoid
of any specific facts to support that conclusion, and devoid of any facts supporting Knight’s
notification of a need to supervise or train, the notification that failing to act on the need would
violate citizens’ constitutional rights, and his deliberate indifference to that need. Further, the
alleged fact that Higginbotham sent a letter to the Mayor’s office does not mean that Knight saw
or heard about that letter, and the Second Amended Complaint does not specifically allege that
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Higginbotham’s letter of complaint directed to the city represents notice to Knight.
Accordingly, the court FINDS that the claim in Count Three against Knight does not
allege a causal connection between the alleged constitutional violation and Knight’s own actions
or inaction, and thus, does not state a plausible claim against him; the motion to dismiss is due
to be GRANTED as to the Count Three claims against Knight. Alternatively, the court FINDS
that Knight was acting within the scope of his discretionary aruthority at the time of the alleged
wrongful conduct, and a reasonable person in Knight’s position would not have known that
omitting training or supervision in this area would cause city officials to violate citizens’
constitutional rights, and Knight would be entitled to qualified immunity as to this claim. As this
pleading is Higginbotham’s third attempt, the court will DISMISS the claims alleged in Count
Three against Knight WITH PREJUDICE.
The Second Amended Complaint does present facts that Mayor Brasseale received notice
of the constitutional violations directed at Higginbotham, and yet, that he did nothing. If the
Mayor directed the acts, he received notice in early April of 2011 that the officers had acted on
his directions and that Higginbotham’s constitutional rights were violated. Similarly, if the
Mayor did not direct the acts, he nevertheless received notice in early April of 2011 via
Plaintiff’s letter that the officers were violating Higginbotham’s constitutional rights and were
claiming to do so based on the Mayor’s orders. The court FINDS that the alleged facts show
notice to the Mayor.
To successfully allege a failure to correct claim under a theory of supervisory liability, the
supervisor must “have the ability to prevent or discontinue a known constitutional violation by
exercising his or her authority over the subordinate who commits the constitutional violation.”
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Keating, 598 F.3d at 765. The court notes that common sense dictates if the Mayor ordered that
the officers commit the constitutional violations and they did so, then naturally he would have
the ability to prevent or discontinue the constitutional violation that he originally ordered. Id.
(finding that because the supervisors “had the authority, and exercised the authority, to direct the
subordinate officers to engage in unlawful acts..., they likewise had the authority to stop the ...
unlawful acts”). Thus, Higginbotham has alleged facts establishing a causal connection between
the Mayor’s alleged failure to stop the subordinate officers from acting and the alleged
constitutional violations.
Finally, as Mayor Brasseale raises qualified immunity, the court FINDS that the alleged
failure to correct violated clearly established law. The practice of stopping and searching all
people who visit a residence, regardless of whether probable cause exists that they have
committed a crime, violated clearly established law. See Wardlow, 528 U.S. at 124. And,
preventing a citizen from entering freely in public areas and to transact legal business at the
courthouse without justification violated clearly established law. See Catron, 658 F.3d at 1266
(stating that citizens have a constitutionally protected liberty interest in traveling on city lands
open to the public); Morales, 527 U.S. at 54 (recognizing that an individual has a constitutionally
protected right to remain in a public place of his choice); and Tennessee v. Lane, 541 U.S. at 510
(recognizing that citizens enjoy the fundamental right of access to courts).
In sum, the court FINDS that the claim in Count Three against Mayor Brasseale alleges a
causal connection between the alleged constitutional violations of others and Mayor Brasseale’s
own conduct, and thus, states a plausible claim; it alleges facts that, if proven, would establish or
help to establish that Mayor Brasseale directed the city official to violate Higginbotham’s
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constitutional rights, and/or, that Mayor Brasseale received notification of city officials violating
Higginbotham’s constitutional rights, but that Brasseale failed to act to prevent further violations,
and was deliberately indifferent to the need to act to prevent the violation of Higginbotham’s
constitutional rights. Further, because those rights were clearly established in April of 2011 and
thereafter, Brasseale is not entitled to qualified immunity. Accordingly, the motion to dismiss is
due to be DENIED as to the claims in Count Three against Mayor Brasseale based on a “failure
to correct” theory.
The court notes that Defendants’ argument that a “knowledge and failure to stop” cause
of action is insufficient to state a cause of action after Iqbal is misplaced and ignores the
discrimination context of Iqbal. Because the instant case does not allege discrimination based on
race, religion, sex, or national origin, the requirement of “purposeful discrimination” for
supervisory liability that applied in Iqbal does not apply here.
(2). Failure to Train Liability
To properly assert a plausible § 1983 claim under a failure to train theory of liability
involving police officers, a complaint must allege facts that, if true, would establish that the
“failure to train amounts to deliberate indifference to the rights of persons with whom the police
come into contact. . . .” Am. Fed’n of Labor & Congress of Indus. Org. v. City of Miami, Fla.,
637 F.3d 1178, 1188-89 (11th Cir. 2011). To support a claim of deliberate indifference, the
plaintiff must allege facts creating an inference that the supervisor was aware of the need to train
officers in the areas of investigatory stop/search/seizure and excessive force, and that the
supervisor made a deliberate choice not to do so.
For the reasons discussed previously, the court FINDS as follows:
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(1) that the facts alleged do not establish Knight’s awareness of the need to train, and that
Count Three does not state a plausible claim against Knight. The motion to dismiss is due to be
GRANTED as to this claim against Knight.
(2) that the facts alleged in Count Three do not state the extent, if any, to which the
training of Pleasant Grove police officers was actually overseen by Mayor Brasseale or the extent
to which he was responsible for the training of police officers. The motion to dismiss is due to
be GRANTED as to the failure to train claim asserted against Mayor Brasseale.
In sum, the motion is due to be GRANTED as to all claims asserted against Knight in
Count Three. As to the claims asserted in Count Three against Mayor Brasseale, the motion is
due to be GRANTED IN PART and DENIED IN PART; the motion is due to be GRANTED as
to the failure to train claim but is due to be DENIED as to claims against the Mayor based on
supervisory liability for allegedly directing wrongful acts and for allegedly failing to stop
wrongful acts despite notice of them.
b. Count Four - Deliberate Indifference through Custom and Policy
In the first paragraph under Count Four, Higginbotham incorporates by reference the
previous 95 paragraphs of his Amended Complaint, which, given the number of paragraphs is
totally unhelpful to the Defendants and the court. In the second paragraph, Higginbotham alleges
generically that Brasseale, Knight and others “have tolerated the continued, and repeated
excessive use of force, and seizures of the citizens of its community, such that the conduct is so
persistent, and widespread as to constitute custom, and policy of the City and the Police Dept.”
(Doc. 13, at 30). The paragraph proceeds to allege that Brasseale and Knight received actual
notice of officers’ excessive use of force on Higginbotham, but that they nevertheless failed to
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act and that the inaction represents deliberate indifference. He presumably brings these claims
pursuant to § 1983.
These recitations in the text of Count Four are devoid of specific facts such as the
particulars about the policy, how long it was in force, prior incidents, specific notification to
Brasseale and Knight, etc. Thus, the text of Count Four alone does not state a plausible claim.
However, as the court listed earlier, other paragraphs incorporated by reference do provide some
specific facts. The best that can be said from these facts is that some city officials – including
Brasseale but not specifically identifying Knight – allegedly established a policy directing the
officers and other peace officers to stop, identify, and search all individual who visited the
residence of Bill Howard in Pleasant Grove, and pursuant to that policy, the police officers of
Pleasant Grove stopped, identified, and ticketed Higginbotham every time they caught him
visiting Howard. Further, some city officials – including Brasseale but not specifically
identifying Knight – allegedly ordered police officers and other peace officials to stop
Higginbotham from entering Pleasant Grove for a period time, and pursuant to that policy,
Higginbotham was turned away from the city when he tried to enter it to go to the courthouse on
May 3, 2011 even though the courthouse was open for business on that date.
The generic allegations of Count Four include a claim against Knight; however the
allegation is a mere conclusion. Higginbotham states no facts tying the custom and policy to
Knight and no facts supporting an inference that he established the custom or policy, or knew
about it, or that the custom and policy was so widespread that he would have had to know about
it, and was deliberately indifferent to the resulting constitutional violations resulting from it.
Accordingly, the court FINDS that the claim in Count Four against Knight does not allege
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a causal connection between the alleged constitutional violation and Knight’s own action, and
thus, does not state a plausible claim against him; the motion to dismiss is due to be GRANTED
as to Count Four claims against Knight. Alternatively, the court FINDS that a reasonable person
in Knight’s position would not have known that the policy or custom existed and that failing to
act to stop that custom or policy from execution would cause city official to violate citizens’
constitutional rights; Knight is entitled to qualified immunity as to this claim. As this pleading is
Higginbotham’s third attempt, the court will DISMISS the claims alleged in Count Four against
Knight WITH PREJUDICE. As the court has found that all the claims asserted against Knight
are due to be dismissed, the court will DISMISS Knight as a party Defendant.
The claim against Mayor Brasseale is, once again, more troubling. As listed above in the
discussion regarding Count Three, Higginbotham states specific facts supporting his claims
against Mayor Brasseale, facts supporting the claims that the Mayor either established or helped
to establish the policy of (1) stopping and searching every individual who visited Bill Howard in
Pleasant Grove, regardless of whether probable cause existed to do so; and (2) refusing to allow
Higginbotham to enter the City of Pleasant Grove when he had a right to travel through public
spaces, to associate freely with people of his choice, and to transact legal business at the
courthouse when the courthouse was open for business. As discussed previously, the law was
well-established as of March of 2010 that such policies violate constitutional rights.
Accordingly, the Mayor is not entitled to qualified immunity as to this claim, and the court
FINDS that the motion to dismiss is due to be DENIED as to this claim in Count Four asserted
against the Mayor.
In sum, the motion to dismiss individual claims asserted against Knight and Brasseale is
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due to be GRANTED in part and DENIED in part. More specifically, the motion is due to be
GRANTED in its entirety as to the claims against Knight, and those claims will be DISMISSED
WITH PREJUDICE, as this pleading is Higginbotham’s third effort. Knight will be
DISMISSED as a party Defendant. As to the claims against Brasseale, the motion is due to be
GRANTED as to the failure to train claim in Count Three and the tort of outrage claim in Count
Five, and those claims will be DISMISSED WITH PREJUDICE; however, the motion is due to
be DENIED as to the claim based on supervisory liability in Count Three, as well as the claims in
Count Four.
D. Motion to Dismiss by the City of Pleasant Grove (doc. 28)
In the Second Amended Complaint, Higginbotham asserts the following claim against the
City: (1) Count Three - inadequate training and supervision of city police officers in the areas of
investigatory stops and search and seizure and in the use of force and fire arms; (2) Count Four deliberate indifference through custom in tolerating police officer conduct involving search and
seizures and use of force that violates constitutional rights of citizens; (3) Count Five - tort of
outrage which the court previously found is due to be dismissed; (4) Count Seven - false arrest
and false imprisonment based on the events of September 27, 2011; (5) Count Eight - violation
of due process rights based on Higginbotham’s being deprived of his liberty and property without
due process of law; (6) Count Nine - malicious abuse of process and malicious prosecution; (7)
Count Eleven - double jeopardy. The court will proceed to address each claim except the tort of
outrage claims in Count Five, which the court has already determined should be dismissed.
1. Count Three - inadequate training and supervision
Plaintiff asserts Count Three’s claim of inadequate training and supervision against the
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City of Pleasant Grove itself. “A municipality may only be held liable under § 1983 when one of
its policies causes a constitutional injury.” Am. Fed. of Labor & Congress, 637 F.3d at 1187
(citing Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978)). A policy- or custom-based
failure to train may form the basis of a § 1983 claim against a city “only where the failure to train
amounts to deliberate indifference to the rights of persons with whom the police come into
contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989).
To allege the requisite “deliberate indifference,” a plaintiff must allege facts that would
support an inference that the city was aware of the need to train or supervise, that the natural
consequences of the failure to train or supervise would be constitutional violations, and that the
city made a “deliberate choice” not to train and supervise its employees. Allegations that would
support notice would be alleged facts showing a “widespread pattern of prior abuse” or
constitutional violations of which the city had notice that occurred prior to the constitutional
violations made the basis of the suit. Am. Fed. of Labor & Congress, 637 F.3d at 1188 (quoting
Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998)).
In the instant case, the Second Amended Complaint does not allege any facts of a
“widespread pattern of prior abuse.” Rather, the only facts about constitutional violations are
those made the basis of this lawsuit committed against Higginbotham. The first date on which
Higginbotham claims to have notified the city or the Mayor or anyone connected with the city
about the alleged constitutional violations was on April 1, 2010, and, accordingly, any claim
based on the failure to train and supervise must concern only actions that occurred after that date.
Higginbotham does allege that he notified the Mayor in that letter and in subsequent letters about
the wrongful conduct of the officers, including their promise to stop, search, and ticket him every
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time he was observed in Pleasant Grove based on orders supposedly emanating from the Mayor
and the Pleasant Grove City Council, among others. Further, he alleges that the Pleasant Grove
police officers continued to act on the unconstitutional policy of stopping and searching him any
time he came into Pleasant Grove, and that he continued to notify the Mayor and city about those
violations but that the city ignored his letters. The May 3, 2011 incident when Higginbotham
attempted to enter the city to appeal convictions and was not allowed to enter is one example of
incidents that allegedly occurred after Higginbotham began notifying the city of the wrongful
conduct of its officers and officials.
At a later stage of this case, the evidence will establish whether such a custom or policy
existed, or whether a genuine dispute exists on that issue. If that custom or policy did not exist
but certain officers nevertheless were stopping and searching Higginbotham and other citizens
visiting Howard and allegedly violating their constitutional rights, then the city received notice of
that practice sometime after April 1, 2010 and continued to receive notice of further violations
thereafter. Thus, as Higginbotham alleges, the city arguably received notice of a need to train
and supervise those officers who were allegedly committing constitutional violations, and yet, it
failed to act, and those alleged violations continued.
In any event, the court FINDS Higginbotham’s Second Amended Complaint states a
plausible claim against the City on this failure to train or supervise theory – that is, the failure to
train and supervise regarding stop and search violations of the Fourth Amendment and other
potential due process violations of the Fourteenth Amendment – and thus, the motion to dismiss
is due to be DENIED. The court notes that Count Three also refers to constitutional violations
based excessive force; however, because, as discussed previously, the court finds that
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Higginbotham has alleged no plausible claim for excessive force, the court GRANTS the motion
as to the allegations in Count Three regarding the failure to train and supervise as to excessive
force.
2. Count Four - unconstitutional municipal custom or policy
The Second Amended Complaint also asserts in Count Four that the City of Pleasant
Grove had city customs and policies violating constitutional rights. One of the challenged
policies involves the use of excessive force. Because, as previously discussed, the court finds
that Higginbotham has alleged no plausible claim for excessive force, the court GRANTS the
motion as to the allegations in Count Four regarding an unconstitutional policy or custom as to
the use of excessive force.
A second challenged policy or custom is the policy of stopping and searching anyone who
visited Bill Howard regardless of whether officers had probable cause to do so; the policy of
stopping and searching and ticketing Higginbotham any time he entered Pleasant Grove to harass
him for his connection with alleged drug dealers and junkies, and the subsequent policy of
preventing Higginbotham from entering Pleasant Grove city limits at all, even to transact
legitimate business and to safeguard his legal rights and related policy to stop him from
appealing his conviction.
Section 1983 does provide a vehicle for municipal liability when one of its policies
causes constitutional injury. See Monell, 436 U.S. at 694. In assessing municipal liability, a
court must first inquire whether a direct causal link exists between a municipal policy and the
alleged constitutional injury. City of Canton v. Harris, 489 U.S. 378, 385 (1989). For a causal
link to exist, the city’s policy may not be tangentially related to a constitutional deprivation but
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must be “the moving force” behind the constitutional injury. Cuesta v. Sch. Bd. of Miami-Dade
Co., 285 F.3d 962, 967 (11th Cir. 2002) (quoting Gilmere v. City of Atlanta, 737 F.2d 894, 901
(11th Cir. 1984)). “When a municipal policy itself violates federal law, or directs a municipality
to do so, resolving ‘issues of fault and causation is straightforward.’” Am. Fed. of Labor &
Congress, 637 F.3d at 1187 (quoting Bd. of Cnty. Comm’rs v. Brown, 520 US. 397, 404 (1997)).
“[T]he conclusion that the action taken or directed by the municipality or its authorized
decisionmaker itself violates federal law will ... determine that the municipal action was the
moving force behind the injury of which the plaintiff complains.” Brown, 520 U.S. at 405
(emphasis added).
The Supreme Court has explained that a plaintiff need not allege a widespread policy or
custom on the part of a city for municipal liability to attach; rather, “a final decisionmaker’s
adoption of a course of action ‘tailored to a particular situation and not intended to control
decisions in later situations’ may, in some circumstances, give rise to municipal liability under §
1983.” Brown, 520 U.S. at 406 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 485 (1986)
(determining that decision of county prosecutor, acting as city’s final decisionmaker, to direct
county deputies to forcibly enter petitioner’s place of business was a municipal policy giving rise
to municipal liability under § 1983)).
In the instant case, Higginbotham has indeed alleged facts stating that a policy or policies
supposedly existed upon the orders of top city officials, including the Mayor and the City
Council, that the policy violated Higginbotham’s constitutional rights, and that the policy caused
him constitutional injury when police officers repeatedly enforced it against him. In the Second
Amended Complaint, Higginbotham alleges that in 2010 and early 2011 he was routinely stopped
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in the city limits without probable cause in violation of the Fourth Amendment, that officers
specifically told him that they had such a policy/policies and that the orders to act as they did
came from the Mayor, City Council, and Municipal Judge. Further, he has alleged facts stating
that in May 2011 he attempted to enter the City of Pleasant Grove to go to the courthouse and
appeal a conviction but was turned away by U.S. Marshals and told by those Marshals that they
did so on orders from the Pleasant Grove Police Department, Sergeant Roberts, and the Mayor’s
office that Higginbotham could not enter the city for any reason.
As previously discussed under the section addressing claims against Officer Roberts, the
alleged orders from the Mayor and other city officials – orders to stop citizens who are driving in
the city limits or to stop them from entering the city at all and exercising their legal rights solely
because of their association with another person with no accompanying probable cause or
controlling justification or appropriate accompanying process to object – are orders violating
their constitutional rights. See, e.g., Catron, 658 F.3d at 1266 (stating that citizens have a
constitutionally protected liberty interest in traveling on city lands open to the public and have a
constitutional right not to be deprived of that right without appropriate procedural due process);
Lane, 541 U.S. at 510 (recognizing that citizens enjoy the fundamental right of free access to
courts); NAACP v. Alabama, 357 U.S. at 465-66 (recognizing the right to freedom of
association as a fundamental value implied in the First Amendment guarantees and falling
coming under the protection of the Fourteenth Amendment due process clause); Morales, 527
U.S. at 54 (recognizing that an individual has a constitutionally protected right to remain in a
public place of his choice). Accordingly, Higginbotham has stated a plausible claim against the
City of Pleasant Grove in Count Four for unconstitutional customs and policies, and the motion
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to dismiss is due to be DENIED as to that claim.
3. Count Eight - Due Process
Count Eight does not specify which Defendants violated his due process claims. The
court has already found that the Second Amended Complaint plausibly alleges a claim under
Count Four that the City of Pleasant Grove had a policy and/or custom that violated
Higginbotham’s constitutional rights, including his due process rights under the Fourteenth
Amendment; those claims will proceed under Count Four. To the extent, if any, that Count Eight
attempts to present these allegations once again against the city, the court FINDS that they are
redundant and are due to be DISMISSED. Accordingly, the court will GRANT the city’s motion
to dismiss as to the claims in Count Eight.
4. Count Nine - Malicious prosecution and abuse of process
As discussed previously, Count Nine of the Second Amended Complaint does not specify
whether Higginbotham brings this Count under Alabama law or as a § 1983 claim. The court
will address this claim as one brought under federal law because he does not point to any
Alabama law. The court notes, in any event, the common law prong of both the Alabama and
federal claim for malicious prosecution contain the same elements. See Wood v. Kesler, 323 F.3d
at 882. The court has previously discussed the elements for malicious prosecution, including the
requirement that the charge be resolved in favor of the plaintiff. The two incidents that
Higginbotham appears to challenge are (1) the prosecution of charges resulting from the
September 19, 2010 incident; and (2) the City’s January 24, 2012 act of placing Higginbotham
on probation without giving him an opportunity to appeal his convictions.
As to the prosecution of charges from the September 19, 2010 incident, the court has
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already noted that those charges were not resolved in Higginbotham’s favor except for the charge
for carrying a concealed weapon. The charges on which he was ultimately convicted cannot form
the basis of a malicious prosecution suit. See id. While the concealed weapons charge for
carrying a toy gun was resolved in Higginbotham’s favor, Higginbotham has not specifically
alleged a city policy or practice underlying the prosecution of that particular charge, and certainly
has not alleged a city policy or practice that was the “moving force” behind that prosecution.
Cuesta, 285 F.3d at 967.
As to the City’s placing Higginbotham on probation for the charges for which he was
convicted, again, that City action involved charges for which Higginbotham was convicted and
cannot form the basis of a malicious prosecution claim.
As to the abuse of process claims, the court has previously determined that no such
cognizable constitutional claim exists pursuant to § 1983. To the extent, if any, that
Higginbotham attempts to present claim for abuse of process under Alabama law, that claim
requires a showing of malice, and Alabama law provides that a municipality is immune from tort
liability for unintentional acts of its agents that are carried out in bad faith or with malice. See
Ala. Code § 11-47-190 (providing that a municipality is immune from tort liability “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 therefore and while acting in the
line of his or her duty”); Ex parte City of Tuskegee, 932 So. 2d 895, 910 (Ala. 2005); see also
Walker v. City of Huntsville, 62 So. 3d 474, 501-02 (Ala. 2010) (recognizing that a municipality
cannot be held liable for malicious prosecution in light of § 11-47-190).
Therefore, the court FINDS that the motion to dismiss is due to be GRANTED claims in
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Count Nine against the City for malicious prosecution and malicious abuse of process; the court
will DISMISS those claims WITH PREJUDICE, as the current pleading is Higginbotham’s third.
5. Counts Seven and Eleven
In Count Seven, Higginbotham asserts claims against the City of Pleasant Grove for false
arrest and false imprisonment, and in Count Eleven, it asserts claims for subjecting him to double
jeopardy in violation of his Fifth Amendment rights. As discussed previously, the City of
Pleasant Grove cannot be held liable for the unconstitutional acts of its police officers and city
officials except to the extent municipal policies or customs caused constitutional violations. The
court has previously addressed Higginbotham’s claims as to the municipal policies that allegedly
caused the violation of his constitutional rights. The claims in Counts Seven and Eleven
attempting to hold the City of Pleasant Grove liable for the actions of its officers and officials
absent an official policy or custom do not state a plausible claim. Accordingly, court FINDS that
the motion to dismiss is due to be GRANTED as to the claims in those Counts against the City of
Pleasant Grove. As this pleading is Higginbotham’s third, the dismissal shall be WITH
PREJUDICE.
V. CONCLUSION
In sum, the court FINDS as follows:
A.

The “Motion to Dismiss Filed by the Pleasant Grove Police Department” (doc. 24) is due
to be GRANTED; the court will DISMISS those claims WITH PREJUDICE, and
DISMISS the police department as a party Defendant.

B.

The “Motion to Dismiss Official Capacity Claims” (doc. 25) is due to be GRANTED; the
court will DISMISS WITH PREJUDICE all official capacity claims asserted against
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Mayor Brasseale, Director Knight, Sergeant Roberts, and Officers Roberts, Bullard, Reed,
Grigsby, and Lawson.
C.

The “Motion to Dismiss” filed by Officer Grigsby (doc. 30), is due to be GRANTED; the
court will DISMISS the individual claims against him WITH PREJUDICE, and, as no
further claims remain, the court will DISMISS Officer Grigsby as a party Defendant.

D.

As to the Motion to Dismiss filed by the other officers (doc. 31) based on claims against
them in their individual capacities, the court FINDS that the motion is due to be
GRANTED in part and DENIED in part. More specifically:
(A) regarding the claims against Officer Reed, the motion is due to be GRANTED as to
the claims set forth in Counts Two, Five, Seven - regarding all claims except the arrest for
a concealed weapon, and Nine - regarding all claims except malicious prosecution for the
concealed weapons charge, and those claims will be DISMISSED WITH PREJUDICE;
however, the motion is due to be DENIED as to claims set forth in Counts One, Seven regarding the false arrest claim based on the concealed weapons charge, Eight, and Nine regarding the malicious prosecution claim on the concealed weapons charge, and those
claims will proceed at this stage. The claim for Assault set out in Count Six will also
proceed, because the motion for partial dismissal did not address that claim.
(B) regarding the claims against Officer Roberts, the motion is due to be GRANTED as
to claims set forth in Counts One (as to the incidents on April 29, 2011 and April 30-May
3, 2011); Two; and Five. Those claims will be dismissed WITH PREJUDICE. However,
the motion is due to be DENIED as to claims against Roberts set forth in Counts One (as
to the incident on March 27, 2010); Eight; and Ten. Those claims will proceed, along
with the claim for Assault set out in Count Six, which the motion for partial dismissal did
not address.
(C) regarding the claims against Officer Bullard, the motion is due to be GRANTED as
to claims set forth in Counts One (as to the October 12, 2011 incident); Two; Five; and
Eight. Those claims will be dismissed WITH PREJUDICE. However, the motion is due
to be DENIED as to claim against Bullard set forth in Counts One (as to the March 28,
2010 incident). That claims will proceed, along with the claim for Assault set out in
Count Six, which the motion for partial dismissal did not address.
(D) regarding the claims against Officer Lawson, the motion is due to be GRANTED;
those claims will be DISMISSED WITH PREJUDICE, and the Lawson will be
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DISMISSED as a party Defendant.
E.

The motion to dismiss filed by Mayor Brasseale and Director Knight regarding individual
capacity claims (doc. 26) is due to be GRANTED IN PART and DENIED IN PART.
More specifically:
(A) regarding the claims asserted against Director Knight, the motion is due to
GRANTED; all those claims will be DISMISSED WITH PREJUDICE, and Knight will
be DISMISSED as a party Defendant.
(B) regarding the claim asserted against Mayor Brasseale, the motion is due to be
GRANTED as to Count Five and the failure to train claims in Count Three; however, the
motion is due to be DENIED as to the claim for supervisory liability set forth in Count
Three, as well as the claim in Count Four.

F.

The motion to dismiss filed by the City of Pleasant Grove (doc. 28) is due to be
GRANTED IN PART and DENIED IN PART. The court will GRANT the motion as to
the claims in Counts Three and Four regarding excessive force, and also the claims in
Five, Seven, Eight, Nine, and Eleven. The court and will DISMISS those claims WITH
PREJUDICE. However, the motion is due to be DENIED as to the claims against the city
in Counts Three and Four regarding stopping and searching Higginbotham and other
visitors of Bill Howard without probable cause and preventing Higginbotham from
entering the Pleasant Grove city limits.

The court will enter a separate Order consistent with this Memorandum Opinion.
Dated this 30th day of September, 2013.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE
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