Chambers v. City of Birmingham et al

Filing 45

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 2/14/2014. (JLC)

FILED
2014 Feb-14 PM 03:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
EDDIE CHAMBERS,
Plaintiff,
v.
CITY OF BIRMINGHAM, et al.,
Defendants.

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) Case No.: 2:12-CV-1109-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION AND PROCEDURAL HISTORY
Plaintiff Eddie Chambers (“Mr. Chambers”) initiated this civil rights lawsuit on

April 13, 2012, against Defendants City of Birmingham (“COB”), Officer T. Gardiner
(“Officer Gardiner”) (sued both individually and officially), and Officer Raynard E.
Escott (“Officer Escott”) (sued both individually and officially). (Doc. 1). Mr.
Chambers’s complaint contains three causes of action which assert federal and state
constitutional claims stemming from his arrest for obstructing government operations
on April 16, 2010, and his subsequent termination from employment by the COB. (Doc.
1 ¶¶ 11-12, 23; see also Doc. 44 ¶¶ 11-12, 23)1.
1

Because the version of Mr. Chambers’s complaint filed into CM/ECF was missing a page,
the court, on December 20, 2013, with Defendants’ consent, granted Mr. Chambers leave to file a
corrected complaint into the record. (Doc. 43). Mr. Chambers separately filed in his corrected

On August 22, 2013, Mr. Chambers filed a Motion To Dismiss Certain Claims
Without Prejudice (Doc. 33) (the “Dismissal Motion”).The court granted Mr.
Chambers’s Dismissal Motion on September 17, 2013, and dismissed without prejudice
Count Three of his complaint pertaining to the COB’s alleged wrongful termination of
Mr. Chambers’s employment. (Doc. 35).
As a result, the scope of Mr. Chambers’s complaint is now limited to the police
misconduct allegations asserted in Counts One and Two. Count One contends that
Defendants have committed “unlawful and false imprisonment and excessive use of
force, all in violation of the Fourth and Fourteenth Amendments to the United States
Constitution and 42 U.S.C. § 1983.” (Doc. 44 ¶ 15). Count Two maintains that “[t]he
acts and conduct of the Defendants constitute false arrest and false imprisonment under
the laws and Constitution of the State of Alabama . . . .” (Id. ¶ 20).
Pending before the court is Defendants’ Motion for Summary Judgment (Doc.
34) (the “Motion”) filed on August 28, 2013. The parties have supported and opposed
the Motion. (Docs. 37-41).2 Accordingly, the Motion is ready for disposition and, for
the reasons explained below, is due to be granted.

complaint on that same date. (Doc. 44).
2

As part of their reply, Defendants filed a Motion To Strike Certain Undisputed Facts (Doc.
41) (the “Strike Motion”) and also requested oral argument on their Motion. (Doc. 41 at 1). Mr.
Chambers has not responded to either of these requests.
2

II.

FACTUAL BACKGROUND3
At all times relevant, both Officers Escott and Gardiner were employees of the

COB’s Police Department. AF Nos. 1, 2.4 On April 16, 2010, John Heard (“Mr.
Heard”) and his landscaping work crew were at the COB Roosevelt Park doing
landscaping work as contractors for the COB’s Water Works Board. AF No. 3.
Reginald Tate (“Mr. Tate”), an employee of the COB’s Water Works Board, had
several Water Works Board employees, including himself, present at Roosevelt Park
on that same date. AF Nos. 4, 5.

3

Keeping in mind that when deciding a motion for summary judgment the court must view
the evidence and all factual inferences in the light most favorable to the party opposing the motion,
the court provides the following statement of facts. See Optimum Techs., Inc. v. Henkel Consumer
Adhesives, Inc., 496 F.3d 1231, 1241 (11th Cir. 2007) (observing that, in connection with summary
judgment, a court must review all facts and inferences in a light most favorable to the non-moving
party).This statement does not represent actual findings of fact. See In re Celotex Corp., 487 F.3d
1320, 1328 (11th Cir. 2007). Instead, the court has provided this statement simply to place the
court’s legal analysis in the context of this particular case or controversy.
4

The designation “AF” stands for admitted fact and indicates a fact offered by Defendants
that Mr. Ward has admitted in his written submissions on summary judgment, in his deposition
testimony, or by virtue of any other evidence offered in support of his case. Under appendix II of the
court's uniform initial order (Doc. 4) entered on April 17, 2012, “[a]ll statements of fact must be
supported by specific reference to evidentiary submissions.” (Id. at 16). For Mr. Chambers, more
specifically, this means that “[a]ny statements of fact that are disputed by the non-moving party must
be followed by a specific reference to those portions of the evidentiary record upon which the dispute
is based.” (Id. at 17). Consequently, whenever Mr. Chambers has inadequately asserted a dispute over
a fact that Defendants have otherwise substantiated with an evidentiary citation, the court has
reviewed the cited evidence and, if it in fact fairly supports Defendants’ factual assertion, has
accepted Defendants’ fact. On the other hand, whenever Mr. Chambers has adequately disputed a fact
offered by Defendants, the court has reviewed the evidence cited by Mr. Chambers and, if it in fact
fairly supports Mr. Chambers’s factual assertion, has accepted Mr. Chambers’s version. The court’s
numbering of admitted facts (e.g., AF No. 1) corresponds to the numbering of Defendants’ statement
of undisputed facts as set forth in Doc. 34-1 and responded to by Mr. Chambers in Doc. 37.
3

Mr. Chambers and Daryl Whitt (“Mr. Whitt”) were plumbers with the COB. AF
No. 6. On April 16, 2010, Mr. Chambers and Mr. Whitt went to Roosevelt Park to
repair a leaking pipe. AF No. 7. Defendants maintain that while Mr. Heard and his
crew were working at Roosevelt Park, Mr. Chambers accosted them. (Doc. 34-2 at 12).5 Contrastingly, Mr. Chambers disputes that any argument or confrontation occurred,
and instead indicates that after introducing himself to them, he realized that he could
not understand their speech. (Doc. 40-1 at 32-34).6
Defendants further contend that Mr. Chambers confronted Mr. Tate at Roosevelt
Park. (See Doc. 34-2 at 25 (“[W]e were confronted by Eddie Chambers.”)); (id. (“I did
not want to be attacked by Mr. Chambers who was irate and out of control.”))7. Mr.
Chambers disputes that he had any menacing interactions with Mr. Tate as well. (See
Doc. 38-1 at 1 (“On April 16, 2010, I never confronted anyone including Mr. Reginald
Tate.”)).
Mr. Tate waited for law enforcement to arrive, as the police had been called by
the dispatch office earlier. AF No. 22. Officer Escott was one of the police officers who
was dispatched to Roosevelt Park concerning a reported disturbance with an irate black

5

All page references to Doc. 34-2 correspond with the court’s CM/ECF numbering system.

6

All page references to Doc. 40-1 correspond with the court’s CM/ECF numbering system.

7

All page references to Doc. 34-2 correspond with the court’s CM/ECF numbering system.
4

male. AF No. 24. Upon Officer Escott’s arrival on the scene, Mr. Heard and Mr. Tate
informed him about their respective versions of what had transpired with Mr. Chambers
and indicated that Mr. Chambers had gone inside the Roosevelt Park Recreational
Center building. AF No. 28; (see also Doc. 34-2 at 2-3).
Officer Escott went into the Recreational Center building and saw a person, i.e.,
Mr. Chambers, on the telephone. AF No. 30. Officer Escott asked whose truck was
parked outside and Mr. Chambers raised his hand and answered “me.” AF Nos. 31, 32.
Officer Escott asked to speak with Mr. Chambers and Mr. Chambers got off the
telephone. AF Nos. 33, 34.
Defendants contend that Mr. Chambers then refused to cooperate with Officer
Escott and that, more specifically, Mr. Chambers refused to give Officer Escott his
identification. (Doc. 34-1 at 7 ¶¶ 35-37). Mr. Chambers responds that Officer Escott
never asked him for his identification and that he cooperated fully with Officer Escott.
(Doc. 37 at 4 ¶¶ 35-37). Mr. Chambers further states that, although he was handcuffed,
Officer Escott never told him that he was under arrest. (Doc. 37 at 4 ¶ 39).
Mr. Chambers told Officer Escott that he had been hurt at the time of the
handcuffing (Doc. 40-1 at 158), and Officer Escott decided to transport Mr. Chambers
to Cooper Green Hospital. AF No. 53. Officer Escott’s shift ended while Mr.
Chambers was being examined at Cooper Green Hospital. AF No. 55.
5

Officer Escott called for a transport officer and Officer Gardiner came to Cooper
Green Hospital to take Mr. Chambers to the Birmingham City Jail. AF No. 55. Officer
Gardiner put Mr. Chambers back into handcuffs with his arms behind his back before
taking him to the Birmingham City Jail. Mr. Chambers maintains that Officer
Gardiner’s actions in handcuffing him were improper because Mr. Chambers had
requested to be cuffed in the front due to his injury and because he was never a threat
to anyone’s personal safety. (Doc. 37 at 6 ¶ 57).
Mr. Chambers was charged with obstructing governmental operations. (Doc. 342 at 7).While Defendants suggest, by way Officer Escott’s affidavit (Doc. 34-2 at 7-8)
and again in Officer Gardiner’s affidavit (Doc. 34-2 at 17), that a magistrate found
probable cause for Mr. Chambers’s arrest and that a Warrant of Arrest was issued for
Mr. Chambers, the court has been unable to locate a copy of such warrant in the record.
At the same time, however, Mr. Chambers does not dispute contest this fact in
opposing summary judgment. Ultimately, the obstruction charge against Mr. Chambers
was nolle prossed on March 12, 2012. (Doc. 38-1 at 2).

III.

STANDARDS
A.

Summary Judgment Generally
6

Summary judgment is proper only when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P. 56(c).
All reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.
1993). A dispute is genuine “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). “Once the moving party has
properly supported its motion for summary judgment, the burden shifts to the
nonmoving party to ‘come forward with specific facts showing that there is a genuine
issue for trial.’” International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270,
1274 (11th Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)).
Finally “[i]f the movant bears the burden of proof on an issue, because, as a
defendant, it is asserting an affirmative defense, it must establish that there is no
genuine issue of material fact as to any element of that defense.” International Stamp,
456 F.3d at 1274 (citing Martin v. Alamo Community College Dist., 353 F.3d 409, 412
(5th Cir. 2003)).

B.

Qualified Immunity
7

Both individual defendants assert that qualified immunity bars Mr. Chambers’s
§ 1983 claims brought against them in their personal capacities. (Doc. 34-1 at 15).
“The defense of qualified immunity completely protects government officials
performing discretionary functions from suit in their individual capacities unless their
conduct violates ‘clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th
Cir. 2003) (internal quotation marks omitted) (quoting Gonzalez v. Reno, 325 F.3d
1228, 1233 (11th Cir. 2003)). “To receive qualified immunity, a government official
first must prove that he was acting within his discretionary authority.” Id.
This is a two-part test. Under the first step, “the defendant must [prove that he
or she was] performing a function that, but for the alleged constitutional infirmity,
would have fallen within his legitimate job description.” Holloman ex rel. Holloman
v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). Next, the defendant must prove that
he or she was “executing that job-related function.” Id. at 1267. “Once a defendant
establishes that he was acting within his discretionary authority, the burden shifts to the
plaintiff to show that the defendant is not entitled to qualified immunity.” Cottone, 326
F.3d at 1358.8
8

Here, there is no dispute over whether the individual defendants were all acting within the
scope of their discretionary authority. (See Doc. 37 at 14 n.2 (“Mr. Chambers does not dispute that
the officers were engaged in discretionary functions.”)).
8

Until 2009, the Supreme Court had required a two-part inquiry to determine the
applicability of qualified immunity, as established by Saucier v. Katz, 533 U.S. 194,
201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). Under the Saucier test, “[t]he
threshold inquiry a court must undertake in a qualified immunity analysis is whether
[the] plaintiff’s allegations, if true, establish a constitutional violation.” Hope v. Pelzer,
536 U.S. 730, 736, 122 S. Ct. 2508, 2513,153 L. Ed. 2d 666 (2002).
If, under the plaintiff’s allegations, the defendants would have violated a
constitutional right, “the next, sequential step is to ask whether the right was clearly
established.” Cottone, 326 F.3d at 1358 (quoting Saucier, 533 U.S. at 201, 121 S. Ct.
at 2156). The “clearly established” requirement is designed to assure that officers have
fair notice of the conduct which is proscribed. Hope, 536 U.S. at 739, 122 S. Ct. at
2515. This second inquiry ensures “that before they are subjected to suit, officers are
on notice their conduct is unlawful.” Saucier, 533 U.S. at 206, 121 S. Ct. at 2158.
The “unlawfulness must be apparent” under preexisting law.9 Anderson v.
Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987) (citing
Malley v. Briggs, 475 U.S. 335, 344-45, 106 S. Ct. 1092, 1097-98, 89 L. Ed. 2d 271

9

Only Supreme Court, Eleventh Circuit, and Alabama Supreme Court cases can “clearly
establish” the law in this litigation. See Thomas v. Roberts, 323 F.3d 950, 953 (11th Cir. 2003) (“In
this circuit, rights are ‘clearly established’ by decisions of the Supreme Court, this court, or the
highest court of the state in which the case arose.” (citing Hamilton v. Cannon, 80 F.3d 1525, 1532
n.7 (11th Cir. 1996))).
9

(1986)). Therefore, a temporal requirement exists related to this inquiry. More
particularly, a plaintiff must show that a reasonable public officer would not have
believed her actions to be lawful in light of law that was clearly established at the time
of the purported violation. See Anderson, 483 U.S. at 639,107 S. Ct. at 3038
(“[W]hether an official protected by qualified immunity may be held personally liable
for an allegedly unlawful official action generally turns on the ‘objective legal
reasonableness’ of the action[,] assessed in light of the legal rules that were ‘clearly
established’ at the time it was taken[.]”) (emphasis added) (citation omitted); Brosseau
v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 599, 160 L. Ed. 2d 583 (2004) (“If the
law at that time did not clearly establish that the officer’s conduct would violate the
Constitution, the officer should not be subject to liability or, indeed, even the burdens
of litigation.”) (emphasis added); Brosseau, 543 U.S. at 198, 125 S. Ct. at 599
(“Because the focus is on whether the officer had fair notice that her conduct was
unlawful, reasonableness is judged against the backdrop of the law at the time of the
conduct.”) (emphasis added); see also Johnson v. Clifton, 74 F.3d 1087, 1093 (11th
Cir. 1996) (“We know of no [preexisting] case which might have clearly told Clifton
that he could not take the disciplinary action indicated by an investigation which was
initiated before he even knew about the allegedly protected speech, and in
circumstances where the public concern implication was doubtful.”).
10

However, the Saucier framework was made non-mandatory by the Supreme
Court in Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818, 172 L. Ed. 2d
565 (2009), in which the Court concluded that, “while the sequence set forth [in
Saucier] is often appropriate, it should no longer be regarded as mandatory.” Thus,
“judges of the district courts and the courts of appeals should be permitted to exercise
their sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case at
hand.” Id.
Despite the Supreme Court’s modification of Saucier’s analytical process, the
substantive analysis remains unchanged; an officer is entitled to qualified immunity
protection as long as he “could have believed” his conduct was lawful. Hunter v.
Bryan, 502 U.S. 224, 227, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589 (1991).Therefore,
to deny immunity, a plaintiff must affirmatively demonstrate that “no reasonable
competent officer would have” acted as the public official did. Malley v. Briggs, 475
U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986).

IV.

ANALYSIS
A.

Mr. Chambers’s First Cause of Action
1.

Federal Claims Asserted Against Officers Escott
11

and Gardiner
a.

Official Capacity Claims

A § 1983 claim against a person in his official capacity seeks to impose liability
on the entity which he represents, and not on him personally. See, e.g., Welch v. Laney,
57 F.3d 1004, 1008 (11th Cir. 1995) (“Welch’s action against the Sheriff and Chief
Deputy Sheriff in their official capacities imposes liability on the entity they represent,
and not on them as individuals.” (citing Brandon v. Holt, 469 U.S. 464, 471-72, 105
S. Ct. 873, 877-78, 83 L. Ed. 2d 878 (1985))). As the Eleventh Circuit has explained
the distinctions between these two capacities in more detail:
“Personal-capacity suits seek to impose personal liability upon a
government official for actions he takes under color of state law.
Official-capacity suits, in contrast, ‘generally represent only another way
of pleading an action against an entity of which an officer is an agent.’”
Id. at 165-66, 105 S. Ct. at 3105 (citations omitted) (quoting Monell v.
Department of Social Services, 436 U.S. 658, 690 n. 55, 98 S. Ct. 2018,
2035 n. 55-56 L. Ed. 2d 611 (1978)). In other words, a plaintiff in an
action against a government official in his personal capacity can recover
only against the official’s personal assets. The assets of the governmental
entity are not accessible. The reverse is true in an official capacity
lawsuit. Furthermore, “to establish personal liability in a § 1983 action,
it is enough to show that the official, acting under color of state law,
caused the deprivation of a federal right.... [I]n an official-capacity suit
the entity’s ‘policy or custom’ must have played a part in the violation of
federal law.” Id. 473 U.S. at 166, 105 S. Ct. at 3105 (citations omitted).
Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1060 (11th Cir. 1992) (emphasis
added).
12

Therefore, any official capacity claims that Mr. Chambers seeks to assert against
Officers Escott and Gardiner are duplicative of his federal claims brought against the
COB. Accordingly, the Motion is due to granted as to all official capacity federal
claims asserted against Officers Escott and Gardiner.
b.

Personal Capacity Claims
(1)

Unlawful Arrest/False Imprisonment

Regarding Mr. Chambers’s claim for unlawful arrest/false imprisonment against
Officers Escott and Gardiner:
[A]ll that is required for qualified immunity to be applicable to an
arresting officer is “ arguable probable cause to believe that a person is
committing a particular public offense,” Redd v. City of Enterprise, 140
F.3d 1378, 1384 (11th Cir.1998); “that is, where ‘reasonable officers in
the same circumstances and possessing the same knowledge as the
Defendants could have believed that probable cause existed to arrest’ the
plaintiffs,” id. at 1382 (citation omitted). See Jones, 174 F.3d at 1283 n.
3 (“Arguable probable cause, not the higher standard of actual probable
cause, governs the qualified immunity inquiry.”).
Scarbrough v. Myles, 245 F.3d 1299, 1302 (11th Cir. 2001) (emphasis added).
Here, the undisputed evidence confirms that even if Officer Escott did not have
actual probable cause to arrest Mr. Chambers for obstructing governmental operations
(as he was charged), the reports that Officer Escott received from Mr. Heard and Mr.
Tate (even if they both lied to Officer Escott about the threatening nature of Mr.
Chambers’s actions at Roosevelt Park) are sufficient to establish arguable probable
13

cause for his arrest. Certainly, Mr. Chambers has not pointed to any binding authorities
which suggest that the less demanding arguable probable cause standard is not reached
under circumstances comparable to those facing Officer Escott and Gardiner.
Accordingly, the Motion is due to granted in favor of Officers Escott and Gardiner as
to Mr. Chambers’s claim for unlawful arrest/false imprisonment because of their
qualified immunity defense.
(2)

Excessive Force

In addition to his federal unlawful arrest claim, Mr. Chambers attempts, in his
opposition brief, to assert discrete claims for excessive force against Officer Escott and
Officer Gardiner. As the Eleventh Circuit has clarified the appropriate scope of
excessive force as a federal constitutional violation:
“Under this Circuit’s law ... a claim that any force in an illegal stop
or arrest is excessive is subsumed in the illegal stop or arrest claim and is
not a discrete excessive force claim.” Jackson v. Sauls, 206 F.3d 1156,
1171 (11th Cir.2000) (citing Williamson v. Mills, 65 F.3d 155, 158–59
(11th Cir.1995)). The right to make an arrest “necessarily carries with it
the right to use some degree of physical coercion or threat thereof to
effect it.” Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865,
1871–72, 104 L. Ed. 2d 443 (1989). It follows, then, if an arresting officer
does not have the right to make an arrest, he does not have the right to use
any degree of force in making that arrest. This is the premise of Bashir’s
“excessive force” claim; but this is not what is meant by “excessive
force.” An excessive force claim 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. When properly stated, an excessive
14

force claim presents a discrete constitutional violation relating to the
manner in which an arrest was carried out, and is independent of whether
law enforcement had the power to arrest. A claim like Bashir’s—that the
deputies used excessive force in the arrest because they lacked the right
to make the arrest—is not a discrete constitutional violation; it is
dependent upon and inseparable from his unlawful arrest claim. Jackson,
206 F.3d at 1171. We reiterate, where an excessive force claim is
predicated solely on allegations the arresting officer lacked the power to
make an arrest, the excessive force claim is entirely derivative of, and is
subsumed within, the unlawful arrest claim. Id.; Williamson, 65 F.3d at
158–59. Bashir does not present a discrete excessive force claim and,
therefore, his excessive force claim fails as a matter of law.
Bashir v. Rockdale County, 445 F.3d 1323, 1331-32 (11th Cir. 2006) (emphasis
added).
Turning to Mr. Chambers’s complaint, the court has studied the allegations of
his first cause of action which constitute his federal claim asserted against all the
defendants. (Doc. 44 ¶¶ 6-18). Nowhere within this count does Mr. Chambers
specifically complain about the manner in which he was handcuffed, arrested, or
detained by either Officer Escott or Officer Gardiner or otherwise divide his excessive
force allegations into subparts separate from his unlawful arrest ones. Instead, Mr.
Chambers only minimally mentions the term excessive force and, when he does so,
such allegation is directly linked (and derivative of) his federal unlawful arrest claim.
(See, e.g., Doc. 44 ¶ 15 (“The actions of the defendants constitute an unlawful and false
imprisonment and excessive use of force . . . .”)). Therefore, under the Eleventh

15

Circuit’s holding in Bashir, and given the contours of Mr. Chambers’s pleading, Mr.
Chambers’s excessive force allegations are subsumed by his federal cause of action
for unlawful arrest.
To the extent that Mr. Chambers’s opposition brief contains contentions and
evidentiary citations about the inappropriate or unconstitutional manner of the force
used by either Officer Escott or Officer Gardiner, such claims and any corresponding
critical elements, which have not been alleged by him in a pleading, are similarly
subject to summary judgment. The Eleventh Circuit has made it unmistakably clear that
“[a] plaintiff may not amend her complaint through argument in a brief opposing
summary judgment.” Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1315
(11th Cir. 2004) (citing Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.
1996)). Gilmour dealt with a plaintiff who was attempting to assert a new claim at the
summary judgment stage. Gilmour, 382 F.3d at 1314-15.
Additionally, a more recent decision by the Eleventh Circuit cites to Gilmour and
confirms that a district court’s consideration of any critical amendment asserted merely
as part of the briefing process is disfavored.
The current practice in some district courts—especially in the
summary judgment setting—is to ignore what the respective parties
alleged in their complaint and answer and to consider their claims and
defenses as depicted in the memoranda they filed in support of or in
opposition to a motion for summary judgment. As is the situation here, the
16

claims and defenses presented in the memoranda supporting or opposing
summary judgment are not presented in the complaint and answer with the
specificity required by the Federal Rules of Civil Procedure and the
Supreme Court's decisions in Bell Atl. Corp. v. Twombly, 550 U.S. 544,
127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), and Ashcroft v. Iqbal, 556
U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); rather, they are
presented in a shorthand fashion. The result is that on appeal we have
difficulty in determining whether the district court, in granting summary
judgment, ruled on the claims and defenses as stated in the complaint and
answer or as stated in the memoranda submitted to the court on summary
judgment, as if the pleadings had been amended by implied consent.
We encountered this dilemma most recently in GeorgiaCarry.Org,
Inc. v. Georgia, 687 F.3d 1244 (11th Cir. 2012), cert. denied, ___ U.S.
___, 133 S. Ct. 856, 184 L. Ed.2 d 656 (2013). There, in their motion for
summary judgment, the plaintiffs sought to eliminate a critical deficiency
in the allegations of their amended complaint by including additional
facts. The defendants did not object to this tactic on the ground that the
plaintiffs were, in effect, seeking to amend their complaint. And the
district court, in ruling on the sufficiency of the complaint, appeared to
have considered the additional facts as if they had been alleged in the
complaint. In affirming the district court’s dismissal of the claim at issue,
we refused to consider these additional facts, citing precedent that
precludes a plaintiff from amending its complaint “through argument at
the summary judgment phase of proceedings.” Id. at 1258 n. 27. “At the
summary judgment stage, the proper procedure for plaintiffs to assert a
new claim is to amend the complaint in accordance with Fed. R. Civ. P.
15(a).” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th
Cir. 2004).
This court’s precedent foreclosed Well–Come’s attempt to amend
its complaint at the summary judgment stage without seeking leave of
court pursuant to Rule 15(a)(2). Accordingly, the District Court should
have disposed of Well–Come’s claim with a statement that Well–Come
failed to establish that ASRRG and ASIS issued a commercial general
liability policy and excess/umbrella liability policy to Flintlock LLC, as
alleged in paragraphs 6 and 7 of its complaint. We affirm the court’s
17

judgment on that ground. Krutzig v. Pulte Home Corp., 602 F.3d 1231,
1234 (11th Cir.2010) (“This court may affirm a decision of the district
court on any ground supported by the record.”).
Flintlock Const. Servs., LLC v. Well-Come Holdings, LLC, 710 F.3d 1221, 1227-28
(11th Cir. 2013) (emphasis added).
Thus, Gilmour and Flintlock procedurally foreclose Mr. Chambers from
belatedly attempting to amend his complaint in any critical manner through his brief.
Accordingly, the Motion is due to be granted to the extent that Mr. Chambers purports
to assert independent claims of excessive force against Officer Escott or Officer
Gardiner.
2.

False Arrest Claim Asserted Against the COB

Here, based upon the above analysis pertaining to Mr. Chambers’s federal cause
of action asserted against Officers Escott and Gardiner, the only conceivable federal
municipal claim that remains is one for false arrest. Constitutional claims asserted
against a municipality pursuant to § 1983 are governed by the rules established by the
Supreme Court in Monell v. Department of Social Servs., 436 U.S. 658, 98 S. Ct.
2018, 56 L. Ed. 2d 611 (1978). In order for the COB to be subjected to § 1983 liability,
Monell requires that Mr. Chambers prove, at a minimum: (1) that the individual
defendants’ actions were unconstitutional; and (2) that a municipal “policy” or
“custom” of the COB caused these violations to occur. See, e.g., Gold v. City of
18

Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (“[A] municipality may be held liable
[under section 1983] for the actions of a police officer only when municipal ‘official
policy’ causes a constitutional violation.”).
Establishing official municipal policy in the context of challenged police action
can arise when the record reflects deficient officer training. In City of Canton v. Harris,
489 U.S. 378, 392, 109 S. Ct. 1197, 1206, 103 L. Ed. 2d 412 (1989), the Supreme
Court acknowledged that “there can be limited circumstances in which an allegation
of a ‘failure to train’ can be the basis for liability in § 1983,” and held that “the
inadequacy of police training may serve as the basis for § 1983 liability only where the
failure to train amounts to ‘deliberate indifference’ to the rights of persons with the
police come into contact.” In other words, the deliberate indifference standard requires
a conscious choice on the part of a municipality and the individual shortcomings of a
police officer or even the negligent administration of an “otherwise sound program” are
insufficient grounds for maintaining a § 1983 municipal claim. City of Canton, 489 U.S.
at 390, 109 S. Ct. at 1206.
Here, in an effort to show § 1983 policy or custom, Mr. Chambers appears to
rely upon the City of Canton approach. As Mr. Chambers contends:
Substantial evidence exists that City policies or customs allowed
or ratified the Defendant Officer’s actions. Record evidence exists that
the City has failed to adequately train or provide guidance by a written
19

policy in connection with the handling, handcuffing or transporting of an
injured detainee. No policy exists as to the use of seat belts. No policy
exists regarding the report of injuries sustained by a detainee. The City’s
policy as to restraining an injured detainee - leaving it to the discretion of
the officers, is inadequate as it allows situations like the one at bar to
occur. Officers can restrain injured detainees in ways that cause or
worsen their injuries and/or transport them without protecting them by
seatbelts, simply by “deciding” to do so. Further, the City’s record of
tracking performance of officers based on the number of arrests they
make and then disciplining them for lack of enough arrests, creates an
atmosphere in which, like here, officers create the circumstances needed
to make an arrest in order to meet performance expectations. Here, in the
months preceding the incident, Escott had next to no arrests and that
policy encouraged or, at a minimum, allowed Defendant Escott to make
an unjustifiable arrest lacking in any basis in fact or law. Lastly,
substantial evidence exists that the City allowed Officer Escott to
continue to perform his duties with knowledge of his track record of
suspensions, censures, false reporting, fraudulent conduct and intentional
violence toward detainees. By doing so, a reasonable jury could easily
conclude the City’s policies and customs, or lack thereof, allowed or
ratified the officers’ conduct in this case.
(Doc. 37 at 17-18).
Thus, to the limited extent that he does address it,10 Mr. Chambers appears to
premise his federal false arrest claim against the COB solely upon the disputed
authority of Officer Escott to place Mr. Chambers under arrest for obstruction of
government operations. However, “[t]here is no respondeat superior liability making
a municipality liable for the wrongful actions of its police officers in making a false

10

The bulk of Mr. Chambers’s opposition centers upon excessive force, but, as previously
explained, a discrete cause of action for excessive force is not before the court.
20

arrest.” Gold, 151 F.3d at 1350 (citing Monell, 436 U.S. at 691, 98 S. Ct. at 2036 ).
As the Eleventh Circuit further instructed in Gold:
Since a municipality rarely will have an express written or oral
policy of inadequately training or supervising its employees, the Supreme
Court has further explained that a plaintiff may prove a city policy by
showing that the municipality's failure to train evidenced a “deliberate
indifference” to the rights of its inhabitants, as follows:
We hold today that the inadequacy of police training may
serve as the basis for § 1983 liability only where the failure
to train amounts to deliberate indifference to the rights of
persons with whom the police come into contact. This rule
is most consistent with our admonition ... that a municipality
can be liable under § 1983 only where its policies are the
“moving force [behind] the constitutional violation.” Only
where a municipality’s failure to train its employees in a
relevant respect evidences a “deliberate indifference” to the
rights of its inhabitants can such a shortcoming be properly
thought of as a city “policy or custom” that is actionable
under § 1983.... “[M]unicipal liability under § 1983 attaches
where-and only where-a deliberate choice to follow a course
of action is made from among various alternatives” by city
policymakers. Only where a failure to train reflects a
“deliberate” or “conscious” choice by a municipality-a
“policy” as defined by our prior cases-can a city be liable
for such a failure under § 1983.
City of Canton, 489 U.S. at 388-89, 109 S. Ct. 1197 (internal citations
omitted).
To establish a “deliberate or conscious choice” or such “deliberate
indifference,” a plaintiff must present some evidence that the municipality
knew of a need to train and/or supervise in a particular area and the
municipality made a deliberate choice not to take any action. See Board
of County Com'rs v. Brown, 520 U.S. 397, ___ , 117 S. Ct. 1382,
21

1390-91, 137 L. Ed. 2d 626 (1997); Young v. City of Augusta, Georgia,
59 F.3d 1160, 1171-72 (11th Cir. 1995); Church v. City of Huntsville, 30
F.3d 1332, 1342-46 (11th Cir. 1994); Wright v. Sheppard, 919 F.2d 665,
674 (11th Cir.1990); Kerr v. City of West Palm Beach, 875 F.2d 1546,
1556-57 (11th Cir. 1989).This Court repeatedly has held that without
notice of a need to train or supervise in a particular area, a municipality
is not liable as a matter of law for any failure to train and supervise. For
example, in Wright v. Sheppard, 919 F.2d 665 (11th Cir. 1990), this
Court held that a sheriff's department was not liable for a deputy’s acts
when “no evidence of a history of widespread prior abuse ... put the
sheriff on notice of the need for improved training or supervision.” Id. at
674. Indeed, in Church v. City of Huntsville, 30 F.3d 1332 (11th
Cir.1994), this Court reversed a district court's preliminary injunction
against the City of Huntsville, holding that the plaintiffs were not likely
to succeed on the merits of their failure-to-train claim without proof that
the City was aware of a prior incident in which constitutional rights were
similarly violated. Id. at 1342-46. See also Popham v. City of Talladega,
908 F.2d 1561, 1564-65 (11th Cir.1990) (finding no liability for failure to
train when no pattern of incidents put the City on notice of a need to
train). More importantly, in Brooks v. Scheib, 813 F.2d 1191 (11th
Cir.1987), even though there had been ten citizen complaints about police
officer Scheib, this Court held that the City did not have any notice of past
police misconduct because the plaintiff “never demonstrated that past
complaints of police misconduct had any merit.” Id. at 1193. This Court
aptly noted, “Indeed, the number of complaints bears no relation to their
validity.” Id.
Gold, 151 F.3d at 1350-51 (footnotes omitted) (emphasis added).
Here, Mr. Chambers references no documented history of meritorious claims for
unconstitutional arrests by Officer Escott specifically11 or other COB police officers

11

Mr. Chambers’s reference to Officer Escott’s admittedly “filing a false report and making
false statements” and the like, all pertain to Officer Escott’s dealings with his supervisors, and not
with persons whom he had arrested. (Doc. 37 at 12 ¶¶ 33, 34).
22

generally, which might, consistent with Canton, create a triable issue with respect to
the COB’s duty to provide further training for its officers in the area of arrests. Cf. City
of Canton, 489 U.S. at 387, 109 S. Ct. at 1204 (“Nor, without more, would a city
automatically be liable under § 1983 if one of its employees happened to apply the
policy in an unconstitutional manner, for liability would then rest on respondeat
superior.”). Additionally, Mr. Chambers has not shown (and cannot show) that his case
falls into the narrow “so obvious[ly]” needing training category. See Gold, 151 F.3d
at 1352 (“In short, to date, the Supreme Court has given only a hypothetical example
of a need to train being ‘so obvious’ without prior constitutional violations: the use of
deadly force where firearms are provided to police officers.” (citing City of Canton,
489 U.S. at 390 n.10, 109 S. Ct. at 1205 n.10)).
Finally, noticeably absent from his brief is any case authority to support Mr.
Chambers’s theory of municipal liability against the COB. Cf. Flanigan’s Enters., Inc.
v. Fulton County, Ga., 242 F.3d 976, 987 n.16 (11th Cir. 2001) (holding that a party
waives an argument if the party “fail[s] to elaborate or provide any citation of authority
in support” of the argument); Ordower v. Feldman, 826 F.2d 1569, 1576 (7th Cir.
1987) (stating that an argument made without citation to authority is insufficient to raise
an issue before the court). Therefore, the court finds that Mr. Chambers’s efforts to
show an actionable municipal policy or custom in response to the Motion are
23

inadequate. Accordingly, the Motion is also due to be granted with respect to Mr.
Chambers’s first cause of action asserted against the COB.
B.

Mr. Chambers’s Second Cause of Action
1.

State Agent Immunity Bars Mr. Chambers’s State
Law Claim For Unlawful Arrest/False
Imprisonment Asserted Against Officers Escott
and Gardiner In Their Personal Capacities.

As pled in his complaint, Mr. Chambers’s state law claim against Defendants is
expressly limited to unlawful arrest/false imprisonment.12 (See Doc. 44 ¶ 20 (“The acts
and conduct of the Defendants constitute false arrest and false imprisonment under the
laws and Constitution of the State of Alabama . . . .”)). Under the doctrine of state
agent immunity, a public actor, such as a law enforcement official, who is exercising
discretionary authority is immune from claims that merely allege negligence,
unskillfulness, or carelessness with respect to injuries arising out of those functions. Cf.
Ex parte City of Tuskegee, 932 So. 2d 895, 906 n.6 (“Although Arnold alleges that
John Moon and Theodore Moon were negligent, there is no allegation that their
conduct leading to her arrest and the arrest itself falls outside the scope of an action that

12

As a result, Mr. Chambers’s opposition to summary judgment on this second count, which
appears to treat Defendants’ alleged use of excessive force as a separate state law claim, is ineffective
because procedurally that particular claim is not before this court. (See Doc. 37 at 18 (“Defendant
Escott’s actions in yanking and twisting his arm causing injury to him, . . . and intentionally bouncing
him around the back of the car to further injure or intimidate him . . . .”)); see also Gilmour, supra
and Flintlock, supra.
24

involves the exercise of discretion or an exercise in judgment.”). Because of the
comparable analysis applicable to state agent immunity, summary judgment in favor of
Officers Escott and Gardiner as to Mr. Chambers’s state law claim for unlawful
arrest/false imprisonment asserted against them in their personal capacities is similarly
appropriate for the reasons that the defense of qualified immunity protects them under
federal law.
In particular, as the Supreme Court of Alabama has restated the rule of state
agent immunity:
A State agent [such as a municipal police officer] shall be immune from
civil liability in his or her personal capacity when the conduct made the
basis of the claim against the agent is based upon the agent’s . . .
(4) exercising judgment in the enforcement of the criminal
laws of the State, including, but not limited to,
law-enforcement officers’ arresting or attempting to arrest
persons; or . . . .
Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000) (emphasis in original).
Further, Mr. Chambers has not adduced evidence from which a reasonable jury
could conclude that either Officer Escott or Officer Gardiner deviated from “detailed
rules or regulations”13 or acted “willfully, maliciously, fraudulently, in bad faith, beyond
his or her authority, or under a mistaken interpretation of the law” when arresting and

13

City of Tuskegee, 932 So. 2d 895, 906 n.6.
25

confining him. Cranman,792 So. 2d at 405. Here, Mr. Chambers has conceded that
Officers Escott and Gardiner “were engaged in discretionary functions” (Doc. 37 at 14
n.2) and yet offers no authority for his undeveloped proposition that their “actions (1)
were not supported by probable cause and (2) fall within the exception to state-agent
immunity.” (Id. at 18).14 Therefore, under such circumstances, the court finds that state
agent immunity protects Officer Escott and Officer Gardiner from exposure to personal
liability for Mr. Chambers’s state law claim of unlawful arrest/false imprisonment.
2.

Unlawful Arrest/False Imprisonment Claim
Asserted Against the COB

Relying upon City of Tuskegee, Defendants assert that if state agent immunity
protects Officers Escott and Gardiner from a claim for unlawful arrest under Alabama
law, then the COB is also immune from such liability. (Doc. 34-1 at 27). As articulated
by the Supreme Court of Alabama in City of Tuskegee:
Arnold alleges that the City of Tuskegee is vicariously liable for the
negligence, carelessness, and unskillfulness of John Moon and Theodore
Moon. The petitioners argue that because the officers are immune from
liability under § 6–5–338(a) the City is immune from liability under §
6–5–338(b). Section § 6–5–338(b) provides:

14

Factually, Mr. Chambers mistakenly focuses solely upon the immaterial dispute over
whether he was ever asked to provide a form of identification by Officer Escott (Doc. 37 at 18-19),
and ignores the undisputed material facts about the reports made by Mr. Heard and Mr. Tate to
Officer Escott about Mr. Chambers’s prior disruptive behavior which led to his arrest and subsequent
confinement.
26

“This section is intended to extend immunity only to peace
officers and governmental units or agencies authorized to
appoint peace officers. No immunity is extended hereby to
any private non-governmental person or entity, including any
private employer of a peace officer during that officer’s
off-duty hours.”
“It is well established that, if a municipal police officer is immune
pursuant to § 6–5–338(a), then, pursuant to § 6–5–338(b), the city by
which he is employed is also immune.” Howard, 887 So.2d at 211.
Because we have held that John Moon and Theodore Moon are immune
from Arnold’s claim alleging negligence, unskillfulness, or carelessness,
the City is also immune from liability as to this claim by virtue of §
6–5–338(b). Therefore, the petition for a writ of mandamus ordering the
trial court to stay discovery is due to be granted as to the claims against
the City based upon the negligence, carelessness, and unskillfulness of
John Moon and Theodore Moon, and we direct the trial court to conduct
a hearing on the City’s motion for a summary judgment as to these claims.
City of Tuskegee, 932 So. 2d at 910.
Defendants’ position is well-taken. In accord with City of Tuskegee, the COB
is immune from Mr. Chambers’s state claim for wrongful arrest/false imprisonment
because Officers Escott and Gardiner are immune on that claim. Accordingly, the
Motion is also due to granted on Mr. Chambers’s second cause of action asserted
against the COB.
V.

CONCLUSION
For all of the foregoing reasons, the Motion is due to be granted.15 The court will
15

Because the court finds that summary judgment in favor of Defendants is appropriate
regardless of the admissibility of Mr. Chambers’s facts that they have challenged, Defendants’ Strike
27

enter a separate final judgment order consistent with this memorandum opinion.
DONE and ORDERED this the 14th day of February, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

Motion is due to be termed as moot. Further, because the contested material issues on summary
judgment are straightforward, Defendants’ separate request to present oral argument is due to be
denied.
28