Pullen v. Jemison Department of Police, City of et al

Filing 25

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 10/19/2015. (PSM)

FILED
2015 Oct-19 PM 03:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
PAUL A. PULLEN,
Plaintiff,
vs.
CITY OF JEMISON, et al,
Defendant.

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2:14-cv-02291-LSC

MEMORANDUM OF OPINION
Paul Pullen brought this action against the City of Jemison, Chief Shane
Fulmer, and Marc McMinn alleging false arrest and malicious prosecution claims
under 42 U.S.C. § 1983 and state law defamation claims. The Defendants have
moved to dismiss. For the reasons stated below, that Motion is GRANTED.
I.

Background 1
Paul Pullen was a reserve deputy for the Jefferson County, Alabama Sheriff’s

Department. On November 26, 2011, Pullen followed a minor child on visitation
with her paternal family in Jemison, Alabama at the behest of the child’s maternal
family and Judge Hallie Leavell. From a public road, Pullen saw the child with her

1

For a motion to dismiss, the Court accepts all facts as stated in the Plaintiff’s Amended
Complaint as true.
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father, which was a violation of a court order. He contacted the Jemison Police
Department (“JPD”) for protection of the child, and when the police arrived,
Pullen told them he was an off duty reserve police officer and informed them of the
situation with the child. The Jemison police officers asked Pullen to travel onto the
property and conduct an investigation. The child’s uncle, a former Jemison police
officer, apparently got angry that Pullen called the police.
Three days later, Pullen met with someone from Jefferson County Sheriff’s
Department Internal Affairs where he learned that JPD had issued a warrant for his
arrest for impersonating a police officer. Pullen was taken to the Chilton County
jail where he was searched and booked. 2 After posting bond, Pullen was released.
On November 26, 2012, a state court judge dismissed the charge of impersonating a
police officer. On that same day, the Jemison Police Department filed three
additional charges against Pullen—criminal trespassing, criminal surveillance, and
providing false information to a police officer. Pullen pled guilty to the criminal
trespassing charge, and the other two charges were dismissed. 3
Pullen filed his complaint on November 25, 2014. The Defendants moved to
dismiss Pullen’s Complaint. Pullen sought and received leave to amend his
2

Pullen does not specify who arrested and transported him—Jefferson County Sheriff’s
Department or Jemison police.
3
Pullen related that he pled guilty to criminal trespassing in his response to the Motion to
Dimiss.
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complaint. In his Amended Complaint, Pullen added Marc McMinn as a
defendant. However, it does not appear that McMinn has been served. 4 The City
and Fulmer then moved to dismiss the Amended Complaint.
II.

Standard of Review
Rule 8(a) of the Federal Rules of Civil Procedure requires a pleading to

contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Rule 8 marks a notable and generous
departure from the hyper-technical, code-pleading regime of a prior era, but it does
not unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678-679 (2009). Instead, “[t]o survive
a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to state a claim for relief that is plausible on its face.” Id. at 678 (internal
quotations omitted). Iqbal establishes a two-step process for evaluating a complaint.
First, the Court must “begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth.” Id. at 679.
Second, “[w]hen there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise to an entitlement
to relief.” Id. Factual allegations in a complaint need not be detailed, but they
4

The Amended Complaint stated that McMinn would be served, but no return of service has
been filed with the Court.
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“must be enough to raise a right to relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A party need not specifically plead each element in his or her cause of action,
but the pleading must contain “enough information regarding the material
elements of a cause of action to support recovery under some viable legal theory.”
Am. Fed’n of Labor & Cong. of Indus. Orgs. v. City of Miami, Fla., 637 F.3d 1178,
1186 (11th Cir. 2011). Ultimately, the Court must be able to draw a reasonable
inference from the facts that the other party is liable. Reese v. Ellis, Painter,
Ratterree & Adams, LLP, 678 F.3d 1211, 1215 (11th Cir. 2012). The Court must
construe pleadings broadly and resolve inferences in that party’s favor. Levine v.
World Fin. Network Nat’l Bank, 437 F.3d 1118, 1120 (11th Cir. 2006).
III.

Discussion
A. Service of Marc McMinn
Because Pullen has not provided proof of service for Marc McMinn, he is

not yet a party. Pullen’s Amended Complaint, which added McMinn as a party,
was effective on April 21, 2015 when the Motion to Amend was granted. The 120
day period for service under Federal Rule of Procedure 4(m) ended August 19,
2015. Pullen has ten (10) days from the date of this Order to obtain service on
McMinn. If proof of service is not obtained, the Court will dismiss McMinn from
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this action without prejudice.
B. Section 1983 False Arrest Claims
A statute of limitations defense is an affirmative defense, and plaintiffs are
not required to “negate” the defense in their complaint. See La Grasta v. First
Union Securities, Inc., 358 F.3d 840, 845 (11th Cir. 2004) (quoting Tregenza v. Great
Am. Commc’ns Co., 12 F.3d 717, 718 (7th Cir. 1993)). However, a motion to dismiss
on statute of limitations grounds is warranted “if it is ‘apparent from the face of the
complaint’ that the claim is time barred.” Id. (quoting Omar ex rel. Cannon v.
Lindsey, 334 F.3d 1246, 1252 (11th Cir. 2003)). Section 1983 provides a federal
cause of action, but it does not have a federal statute of limitations. See Wallace v.
Kato, 549 U.S. 384, 387 (2007). The personal injury statute of limitations for the
state in which the tort arose applies in § 1983 cases. See id. Specifically, “in states
like Alabama with more than one statute of limitations for personal injury actions,
the residual personal injury statute of limitations applies to all actions brought
under section 1983.” Jones v. Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir.
1989) (emphasis added). Requiring a single statute of limitations for all § 1983
actions promotes “uniformity, certainty, and efficiency.” Id. at 1482. Alabama’s
general personal injury statute of limitations is two years. Ala. Code § 6-2-38; see
Lufkin v. McCallum, 956 F.2d 1104, 1106 (11th Cir. 1992).
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When a cause of action accrues is governed by “federal rules conforming in
general to common-law tort principles.” Wallace, 549 U.S. at 388. Generally
speaking, federal law provides that a plaintiff’s action accrues when he has “a
complete and present cause of action.” Bay Area Laundry and Dry Cleaning Pension
Trust Fund v. Ferbar Corp. of California, Inc., 522 U.S. 192, 195 (1997) (quoting
Rawlings v. Ray, 312 U.S. 96, 98 (1941)). In cases of false arrest, a plaintiff’s cause
of action accrues and the statute of limitations “begins to run at the time the
claimant becomes detained pursuant to legal process.” Wallace, 549 U.S. at 397.
“An arrest warrant constitutes legal process.” Calero-Colon v. Betancourt-Lebron,
68 F.3d 1, 4 (1st Cir. 1995).
In this case, Pullen was arrested on November 29, 2011 pursuant to an arrest
warrant issued by the Jemison Police Department. Because he was arrested
pursuant to a warrant, he was detained pursuant to legal process. Thus, the statute
of limitations period for Pullen’s claim commenced on November 29, 2011 and
ended two years later on November 29, 2013. However, Pullen did not file this
action until November 25, 2014. Accordingly, it is apparent from the face of the
complaint that any claim for false arrest against the defendants based on the

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November 29, 2011 arrest is time barred and due to be dismissed. 5
C. Section 1983 Malicious Prosecution Claims
To prove a case of malicious prosecution under § 1983, 6 a plaintiff must
prove “a violation of his Fourth Amendment right to be free from unreasonable
seizures in addition to the elements of the common law tort of malicious
prosecution.” Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003) (emphasis in
original). An arrest is “the quintessential ‘seizure of the person’ under our Fourth
Amendment jurisprudence.” California v. Hodari D., 499 U.S. 621, 624 (1991).
Further, the elements 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, 323 F.3d at 882.
Pullen’s claims of malicious prosecution are based on four criminal charges:
(1) impersonating a police officer, (2) criminal trespass, (3) criminal surveillance,

5

The Court questions whether a false arrest claim can even be made when the plaintiff was
arrested pursuant to a warrant. The First Circuit stated that, “As a general rule, an unlawful
arrest pursuant to a warrant will be more closely analogous to the common law tort of malicious
prosecution.” Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 4 (1st Cir. 1995). However, insofar as
Pullen might have had a false arrest claim, it is time barred.
6
The Supreme Court in Albright v. Oliver, 510 U.S. 266 (1994) held that substantive due process
did not provide a right to be free from malicious prosecution. See id; Wood v. Kesler, 323 F.3d 872,
881 n.14 (11th Cir. 2003). However, the Court did leave “open the possibility that the Fourth
Amendment is the appropriate source of the right to be free from malicious prosecution.” Wood,
323 F.3d at 881 n.14.
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and (4) providing false information to a police officer. As Pullen stated in his
Response to the Motion to Dismiss, he pleaded guilty to criminal trespass. Thus,
any claim of malicious prosecution based on that charge fails to state a claim
because the action did not terminate in Pullen’s favor. The other three charges,
however, were dismissed. Moreover, Pullen’s arrest on November 29, 2011 is a
seizure, which led to the charge of impersonating a police officer. The Jemison
Police Department never arrested or otherwise seized Pullen for the other three
charges. However, because the charges were based on the same set of facts, the
November 29, 2011 arrest is plausibly connected to the later charges. Accordingly,
Pullen has alleged the facts necessary to make out a malicious prosecution claim.
i. Chief Fulmer Supervisory Liability
Although Pullen alleges facts sufficient to make out a plausible malicious
prosecution claim, he does not allege facts sufficient to state a plausible claim
against Fulmer. To state a claim against Fulmer, Pullen must allege facts showing
he committed an unconstitutional act himself or that he is liable through acts or
omissions as a supervisor. See Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir.
1999). Supervisors “are not liable under § 1983 for the unconstitutional acts of
their subordinates ‘on the basis of respondeat superior or vicarious liability.’” Id.
(quoting Belcher v. Foley, 30 F.3d 1390, 1396 (11th Cir. 1994)). However,
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supervisors can be held liable “either when the supervisor personally participates
in the alleged unconstitutional conduct or when there is a causal connection
between the actions of a supervising official and the alleged constitutional
deprivation.” Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). Such a causal
connection can occur when a history of widespread abuse puts the supervisor on
notice of the need to correct the violation, when a custom or policy results in the
deliberate indifference to constitutional rights, or when the facts infer a supervisor
directed subordinates to act unlawfully or failed to stop known unlawful acts. Id.
Pullen does not allege that Fulmer personally participated in any
unconstitutional conduct. The only instances Pullen’s Amended Complaint
mentions Fulmer are in the case caption, in the statement of jurisdiction, and in
bold subheadings. Pullen does not allege that Fulmer submitted an affidavit for the
arrest warrant or that Fulmer arrested him on November 29, 2011. Further, Pullen
never alleges any facts that Fulmer played a role in instituting the criminal
surveillance or providing false information charges. In his Amended Complaint,
Pullen attributes actions to JPD, not to Fulmer or any other individual: “JPD has
issued a warrant for is [sic] arrest;” “JPD filed three additional charges.” Pullen
never alleges any facts that indicate Fulmer himself actually engaged in
unconstitutional conduct.
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Moreover, Pullen does not allege that Fulmer is liable in his role as
supervisor. The Amended Complaint contains no facts showing that Fulmer had
knowledge of the criminal charges or that Fulmer was on notice of a widespread
custom of maliciously prosecuting individuals. The only fact that might indicate
Fulmer is in any way liable is that he is Police Chief, and as such, Fulmer might
know of a custom of the police department. Although Pullen does allege that the
City of Jemison had a custom or policy of malicious prosecution, he does not take
the additional step of linking that policy to Fulmer in his role as Police Chief. The
allegation in Count Two against Fulmer says, “The Defendants willfully,
maliciously, sadistically and intentionally knowing that they had no probable cause
committed under color of state law by the Defendants.” This allegation does not
reference Fulmer in his role as a supervisor. To adequately state a claim, the
complaint needed some type of factual allegation of Fulmer’s role in the matter. See
Franklin v. Curry, 738 F.3d 1246, 1252 (11th Cir. 2013) (affirming dismissal when
complaint “allege[d] nothing about the significance of [defendants’] titles, their
individual roles in the jail, their personal interactions or familiarity with [plaintiff],
their length of service, their management policies, or any other characteristics that
would bear on” liability). Thus, Pullen has not pleaded sufficient facts to make out
a claim of supervisory liability against Fulmer.
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Fulmer also asserts qualified immunity in support of his motion to dismiss.
Qualified immunity requires the court to ask two questions: “(1) do the alleged
facts show that the government actor violated a constitutional right? and (2) was
that constitutional right clearly established?” Boyce v. Andrew, 510 F.3d 1333, 1341
(11th Cir. 2007). If either question is answered in the negative, then the
government employee is protected by qualified immunity. Here, Pullen has not
alleged any facts supporting his claim that Fulmer violated his constitutional rights.
Accordingly, Fulmer is entitled to qualified immunity.
ii. Municipal Liability for City of Jemison
Pullen further claims that the City is liable based on a custom or policy of
unconstitutional conduct. As a general rule, municipalities are not liable on the
basis of vicarious liability. They can only be held liable “when execution of a
government’s policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the injury . . . .”
Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 694 (1978).
Municipal liability can be based on either an express policy or “practices so
persistent and widespread as to practically have the force of law.” Connick v.
Thompson, 131 S.Ct. 1350, 1354 (2011).
When a plaintiff alleges a failure to train, supervise, or discipline, a
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municipality can only be held liable when the failure amounts to deliberate
indifference. See Vineyard v. County of Murray, GA, 990 F.2d 1207, 1211–1212 (11th
Cir. 1993) (citing City of Canton v. Harris, 489 U.S. 378 (1989)). “‘[D]eliberate
indifference’ is a stringent standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action.” Board of County
Comm’rs of Bryan County, Okl. V. Brown, 520 U.S. 397, 410 (1997). Typically, a
city’s deliberate indifference can be established in two ways. First, if the city is
aware of a custom or policy of violations and fails to provide training or discipline,
the city is considered deliberately indifferent. See Lewis v. City of West Palm Beach,
Fla, 561 F.3d 1288, 1293 (11th Cir. 2009). Second, in the absence of prior incidents,
deliberate indifference can be proven “if the likelihood for constitutional violation
is so high that the need for training would be obvious.” Id.
Pullen’s Amended Complaint characterizes his claims by saying that the
City,
(a) failed to discipline or prosecute or in any manner deal with known
incidents of misconduct; and (b) refused to investigate the
Defendants’ misconduct when the charge of impersonating a peace
officer was dismissed in Circuit Court; and (c) allowed and condoned
the Defendants to file three additional charges against the Plaintiff one
year after the event transpired and after the first charge had been
dismissed, thereby the City official claimed such incidents were
justified and proper.
The Court interprets these three statements as two allegations of municipal
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liability—a custom of unconstitutional malicious prosecutions and a failure to
discipline or train officers on the standards for instituting criminal charges. In this
case, the only two instances of alleged unconstitutional conduct are the charge for
impersonating a police officer and the two simultaneous charges of criminal
surveillance and providing false information to a police officer instituted a year
later. 7 In fact, these actions are best seen as one continuous prosecution of Pullen
because they were, in effect, attempts to charge him for a crime based on one set of
events. Even when accepted as true, these allegations do not make out a custom or
policy on the part of the city. The prosecution of one individual based on one set of
events with no allegations of the number of actors involved cannot be described as
“so well settled and permanent that [it has] the force of law.” Praprotnik, 485 U.S.
at 144. Without allegations of other prosecutions, the criminal charges filed against
Pullen demonstrate nothing more than “an isolated incident.” McDowell v. Brown,
392 F.3d 1283, 1290 (11th Cir. 2004).

Pullen’s claims thus only create the

possibility of wrongdoing, not a plausible allegation. Accordingly, Pullen fails to
state a claim that the City had a custom or policy of maliciously prosecuting
individuals.
Furthermore, Pullen fails to state a claim of failure to discipline. He has not
7

Because Pullen pleaded guilty to criminal trespass, he cannot claim malicious prosecution based
on that charge.
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sufficiently alleged a widespread custom or policy that would necessarily put the
city on notice of the need to discipline. In fact, Pullen has not alleged any facts
showing that a supervisor or decision-maker had any knowledge of the charges filed
or that the charges were brought maliciously, beyond a mere recitation of the
elements of a failure to discipline cause of action. Additionally, Pullen does not
even allege how the prosecutions warranted discipline or how the misconduct
presented an obvious threat of constitutional violations. He never alleges that the
officers involved did not know how to determine probable cause, that the officers
lied in affidavits supporting the charges, or that the city otherwise failed to instruct
them on how to institute criminal charges. Pullen merely asserts that he was
arrested and charged without probable cause. Without more factual detail, Pullen
merely presents a scenario where a constitutional violation is a possibility, not a
plausible outcome. However, even if those allegations were sufficient, the
Amended Complaint has no factual allegations, other than conclusory statements,
demonstrating that City officials knew of the violations and disregarded them to the
point of deliberate indifference. Accordingly, his claims against the City are due to
be dismissed.
D. Defamation, Libel, and Slander Claims
In addition to his § 1983 claims, Pullen alleges a claim of defamation.
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However, before a person can recover against a municipality on a state tort claim,
he must file a sworn statement with the clerk of the city. Ala. Code § 11-47-192.
Further, a person must present such tort claims to the city “within six months from
the accrual of said claim or [it] shall be barred” Ala. Code § 11-47-23. Pullen never
states that he filed such a notice with the City. When the City moved to dismiss
based on this failure to file such notice, Pullen did not respond to that argument in
his brief. Accordingly, any claim of defamation against the City is due to be
dismissed.
Moreover, Pullen fails to state a claim for defamation against Fulmer. The
complaint is devoid of any alleged statements made by Fulmer. As noted
previously, Fulmer is only mentioned in the caption, the statement of jurisdiction,
and subheadings. The only possible statements mentioned in the Amended
Complaint that could be defamatory are the arrest warrant and criminal charges,
but Pullen attributes his arrest warrant and criminal charges to “the JPD,” without
specifying a particular officer. Pullen’s legal conclusions likewise fail to identify any
statement made by Fulmer. The fourth count of Pullen’s Amended Complaint
says: “The Defendants knowingly made and continues to make false accusations
and comments that at the time made knew were false and damaging to the plaintiff.
Through the Defendants’ false comments, the Defendants committed defamation,
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slander and liable [sic].” These allegations amount to nothing more than
“[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements.” Iqbal, 556 U.S. 662, 678 (2009). Without actual details
about who published the allegedly defamatory statements and what those
defamatory statements were, Fulmer does not have adequate notice of how he is
potentially liable. Thus, any claim of defamation against Fulmer is due to be
dismissed.
IV.

Conclusion
For the reasons stated above, the Defendants’ Motion to Dismiss is

GRANTED. Pullen’s claims against Shane Fulmer and the City of Jemison are
therefore dismissed with prejudice. Additionally, Pullen has 10 days from the date
of this Order to obtain service on Marc McMinn. If service is not obtained, the
Court will dismiss without prejudice all of the remaining claims in this case. A
separate Order will be entered.
Done and Ordered this 19th day of October 2015.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
182185

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