Wardlow v. Whiten

Filing 42

MEMORANDUM OPINION - Based upon the foregoing, the defendants motion for summary judgment is GRANTED IN PART and DENIED IN PART. There being no genuine issues of material fact as to the issue of municipal liability or qualified immunity as to Chief Roper, Chief Roper is entitled to summary judgment on all claims against him in his official capacity and on all claims against him in his individual capacity except Wardlows state law malicious prosecution claim in Count E. The remaining claims asserted against Whiten proceed because genuine issues of material fact preclude judgment as a matter of law. Signed by Magistrate Judge John H England, III on 3/29/2017. (KEK)

FILED
2017 Mar-29 PM 12:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LARRY WARDLOW,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
MICHAEL WHITEN, et al.,
Defendants.

Case Number: 2:15-cv-00367-JHE

MEMORANDUM OPINION1
Plaintiff Larry Wardlow (“Wardlow”) initiated this action against Officer Michael Whiten
alleging federal claims pursuant to 42 U.S.C. § 1983 for excessive force, unlawful arrest, and
malicious prosecution and state law claims for assault and battery and malicious prosecution. (Doc.
1). Wardlow amended his complaint to include allegations against Birmingham Chief of Police
A.C. Roper in all but the state law assault and battery claim.2 (Doc. 3). Defendants now move for
summary judgment. (Doc. 35). The motion is fully briefed and ripe for review. (Docs. 36, 37, &
38). For the reasons stated below, Defendants’ motion for summary judgment is GRANTED IN
PART and DENIED IN PART.
I. Standard of Review
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper if

1

In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 21).
2
Plaintiff also asserted a negligent security claim against Black Market Bar and Grill in
his Amended Complaint. Because that claim did not relate back to his original complaint and
was thus outside the statute of limitations, the Court dismissed that claim on October 28, 2015.
(Doc. 28).
1

the pleadings, the discovery, and disclosure materials on file, and any affidavits “show that there
is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter
of law.” “Rule 56[] mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden of proof
at trial.” Celotex Corp. v. Catrett, 447 U.S. 317, 322 (1986). The moving party bears the initial
burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then
shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish there is a
“genuine issue for trial.” Id. at 324. (citation and internal quotation marks omitted). A dispute
about a material fact 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 (1986).
The Court must construe the evidence and all reasonable inferences arising from it in the
light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,
(1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the nonmoving party’s favor). Any factual disputes will be resolved in Plaintiff’s favor when sufficient
competent evidence supports Plaintiff’s version of the disputed facts. See Pace v. Capobianco,
283 F.3d 1275, 1276-78 (11th Cir. 2002) (a Court is not required to resolve disputes in the nonmoving party’s favor when that party’s version of the events is supported by insufficient evidence).
However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat
a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam)
(citing Bald Mtn. Park, Ltd. V. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a]
mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must
be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911

2

F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
II. Summary Judgment Facts3
Michael Whiten (“Whiten”) has been an officer with the Birmingham Police Department
for eighteen years. (Doc. 35-1 at 4, 21). He has been arrested once, for assault and harassment
following a bar fight with a former coworker, Chris Johnson, who had started dating Whiten’s exgirlfriend. (Id. at 21). Whiten was put on administrative duty. (Id.). Several months later, Johnson
approached Whiten in a parking lot and they exchanged words. (Id.). After the conversation in the
parking lot, Johnson filed harassment charges against Whiten. (Id.). Whiten was found guilty after
a trial and placed on administrative duty for approximately sixteen months; the charges against
him were nolle prossed after he attended counseling sessions. (Id. at 23, 43-44).
In 2013, Whiten also worked security for Black Market Bar and Grill (“Black Market”), a
private business, every other Friday evening. (Id. at 4-6). On Friday, March 1, 2013, Whiten
worked his usual shift, from 8:30 a.m. to 5:00 p.m., in the detective bureau at the police department.
(Id. at 6). He then went home until he had to start his security shift at Black Market at
approximately 9:00 or 10:00 p.m. (Id. at 6-7). Once at Black Market, per his usual routine, Whiten
poured himself a soda and stood at the end of the bar. (Id. at 7). Approximately forty-five minutes
after he arrived, Whiten first saw Wardlow sitting a few barstools down from where he was
standing. (Id.). To his knowledge, Whiten had not met Wardlow before that evening. (Id. at 20).
The same day, Wardlow returned home from a trucking job and did some chores. (Doc.
36-3 at 7). At approximately 10:15 p.m., Wardlow walked a few blocks from his apartment to
Black Market, where he had never been. (Id. at 7, 16). He took a seat near the end of the bar and,

3

The following facts are undisputed or, if disputed, taken in a light most favorable to
Wardlow, the nonmoving party. Where Defendants dispute a fact or set of facts, that dispute is
addressed in a footnote.
3

after ordering a beer, he introduced himself and made small talk with the people sitting around
him. (Id. at 7-8).
After periodically making eye contact with him, Wardlow asked if Whiten was drinking
while on duty. (Doc. 35-1 at 8; doc. 36-3 at 8). Wardlow believed Whiten was drinking alcohol,
and Whiten never told Wardlow he was not drinking. (Doc. 36-3 at 8).4 Whiten grew angry that
Wardlow had inquired about his drinking and responded that he could have Wardlow arrested for
whatever he wanted. (Id.). Sensing possible tension, Wardlow excused himself to the restroom for
a few minutes before returning to his seat, hoping things with Whiten had cooled. (Id. at 10).5
When Wardlow returned to his seat from the restroom, Whiten walked out of the bar on
his phone, and Wardlow thought he was leaving for the evening. (Doc. 36-3 at 11). Whiten
returned a few minutes later with a blonde woman. (Id.). The blonde woman sat down beside
Wardlow, who said hello to her. (Id.). At that point, Whiten “blew up” at Wardlow and made
physical contact with him, causing Wardlow’s face to hit the bar. (Id.). Wardlow did not remember
leaving the bar or fighting Whiten, but the two somehow ended up outside, where Whiten picked
up Wardlow, tackled him, and hit him in the face two or three times. (Doc. 36-1 at 8; doc. 36-3 at
12). 6

4

Whiten testified he tipped his cup and responded that he was drinking soda. (Doc. 35-1

at 8).
5

According to Whiten, Wardlow told Whiten that he did not want to spend the evening
sitting next to a policeman. (Doc. 35-1 at 8). Whiten felt that Wardlow was possibly trying to
provoke him, so Whiten moved to the opposite corner of the bar. (Id.).
6
Whiten’s account of the encounter described in this paragraph differs significantly from
Wardlow’s. According to Whiten, he did not return to the end of the bar until approximately one
hour later. (Doc. 35-1 at 8). Wardlow again made eye contact and said something to him, but
Whiten could not hear what he said because the bar was so loud by that point. (Id.). Wardlow
continued speaking to him, so Whiten went over to the bar stool to ask what Wardlow’s problem
was. (Id.). Wardlow told Whiten that he was the problem. (Id.). Whiten then told Wardlow he had
enough and should probably leave for the night. (Id.). After Wardlow got his jacket, Whiten
escorted him to the door; after Wardlow exited, Whiten heard a commotion at the front door. (Id.).
4

Wardlow remembered waking up in a CT scan machine, but he did not remember going to
the hospital. (Doc. 36-3 at 12).7 When he woke up and started moving, the nurse told him to remain
still because they were scanning his fractured eye socket. (Id.). Wardlow could recalled speaking
to the blonde woman and having his face smashed into the bar, which made him upset; he then got
up, hobbled out of the room, and shouted at Whiten, demanding to know why Whiten had attacked
him. (Id. at 14.). When Wardlow told Whiten he would be in trouble for attacking him when others
saw the security footage, Whiten laughed and told him that the bar only had security videos at the
front door, so the video did not get anything on him. (Id.). Whiten attempted to escort Wardlow
back into the hospital room but both men “stuck [their] hands out,” after which Whiten tripped
Wardlow and handcuffed him. (Doc. 36-3 at 15).8

Wardlow screamed at the bouncers and at Whiten, shouting at Whiten that he would wait on the
sidewalk and would get him when his shift ended. (Id. at 9). After a few minutes of this behavior,
Whiten walked outside to place Wardlow under arrest; he grabbed Wardlow by the left bicep and
then Wardlow grabbed Whiten’s throat with his right hand. (Id.). Whiten immediately let go of
Wardlow’s arm, at which point Wardlow used both arms to put Whiten in a headlock. (Id.). Whiten
grabbed Wardlow’s legs and tackled him to the ground; Whiten landed on top of him and struck
him in the face maybe two or three times. (Id.). When Wardlow was still, Whiten rolled him over
onto his stomach and handcuffed him. (Id.) Whiten then called for backup and for medics to
examine Wardlow’s bloody nose. (Id. at 10).
7
According to Whiten, he and his backup patrolmen stood Wardlow up and Wardlow was
able to walk to the squad car on his own. (Doc. 35-1 at 10). The medics examined him and asked
Whiten to take him to the hospital, which is police department policy. (Id.). The officers took
Wardlow to UAB Hospital in the back of the patrol vehicle. (Id.). When they arrived at the
emergency room, the nurse walked them straight into a room; Whiten removed Wardlow’s
handcuffs at the nurse’s request so he could be treated. (Id. at 16-17). Whiten waited outside the
room while Wardlow was treated and given a CT scan, because Wardlow was still upset and was
calmer when Whiten was not in the room. (Id.). While he waited, Whiten began making his report,
notifying his supervisor, and getting together the use of force documentation. (Id. at 17). When
Wardlow came out of his room, he screamed at Whiten and asked if Whiten was responsible for
injuring his face. (Id. at 18).
8
Whiten testified Wardlow attempted to tackle him but could not. Whiten wrestled him to
the ground in front of the nurse station and laid on top of him until UAB officers, who were
stationed in the emergency room, arrived and helped Whiten get Wardlow back into handcuffs.
(Doc. 35-1 at 18-19).
5

Whiten left the hospital at approximately 6:00 a.m., after another officer came to take
Wardlow to jail. (Doc. 35-1 at 18; doc. 36-3 at 16). Wardlow remained in jail for about one day.
(Doc. 36-3 at 17). Wardlow ultimately pleaded guilty to police harassment for the incident in the
hospital. (Doc. 36-3 at 16-17; doc. 36-6).
III. Analysis
Municipal Liability – Count A
Defendants argue the City, through Chief Roper in his official capacity as Chief of Police,
cannot be held liable under Count A, Wardlow’s § 1983 claim for unreasonable or excessive force.
(Doc. 35 at 7). “[A] municipality cannot be held liable under § 1983 on a respondeat superior
theory.” Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 691 (1978). This means that, “to impose
liability on a municipality under § 1983[, a plaintiff must] identify a municipal ‘policy’ or ‘custom’
that caused the plaintiff’s injury.” Bd. of County Com’rs of Bryan County, Okl. v. Brown, 520 U.S.
397, 403 (1997). Municipal liability arises only if the municipality maintains an unconstitutional
policy or custom. See Monell, 436 U.S. at 690-91.
Failure to train can qualify as a municipal policy if “the need for more or different training
[is] so obvious, and the inadequacy so likely to result in the violation of constitutional rights” and
“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, 390 (1989). In other
words, “[a] plaintiff must demonstrate that a municipal decision reflects deliberate indifference to
the risk that a violation of a particular constitutional or statutory right will follow the decision.”
Bryan County, 520 U.S. at 407. Moreover, “municipal liability for failure to train may be proper
where it can be shown that policymakers were aware of, and acquiesced in, a pattern of
constitutional violations.” City of Canton, 489 U.S. at 397 (O’Connor, J., concurring in part and

6

dissenting in part).
As of March 1, 2013, the date of the incident, the City of Birmingham Police Department
had specific rules governing the use of force, reporting use of force, investigations into uses of
force, and how to execute a custodial arrest. (Doc. 35-1 at 124-28). According to Chief Roper,
recruits at the Police Academy receive over 800 hours of training (double the amount required by
the Alabama Police Officer Standards and Training Commission); specifically, they are trained on
federal and state criminal laws, how to conduct lawful investigations and arrests, and on the City’s
policy regarding use of force. (Id.). Throughout an officer’s career, that training is supplemented
regularly. (Id.). Additionally, Chief Roper averred that all complaints of officer mistreatment are
investigated by the Internal Affairs Division and, if mistreatment is proven, the offending officer
is appropriately disciplined. (Id.).
Officer Whiten has been with the City of Birmingham Police Department for
approximately fifteen years. He did not have a history of widespread abuse. According to Internal
Affairs logs, Whiten was involved in six instances where force was indicated between January
2007 and February 2012. (Doc. 54-7 at 10, 18, 22, 24, 28, & 46). The evidence indicates that
Whiten has had one citizen complaint for use of force, for which he was placed on suspension for
three days. (Doc. 36-4). Wardlow points out that Whiten was not ordered to seek additional training
on use of force at that time.
The police department had 2,449 reports of force used between January 2007 and February
2012; of those, seventy-two listed no finding (whether “in policy” or “sustained”) and only one
was “sustained,” i.e. the excessive use of force allegation was supported by sufficient evidence.
(Id.). In the Blanchard case, U.S. District Chief Judge Bowdre noted evidence had been presented
that Chief Roper acknowledged in mid-2009 a general, department-wide need for officer training

7

and supervision on the use of force. (Doc. 98 at 15, Blanchard). Unlike in Blanchard, however,
Wardlow has not presented evidence that the City failed to follow its stated policies for training or
investigating uses of force. Additionally, the City asserts (though without submitting
substantiating evidence) that since 2012 the Police Department has made specific changes to its
policy to correct and curtail the issues acknowledged by Chief Roper and Chief Judge Bowdre.
(Doc. 37 at 6).
Wardlow points to two prior cases involving a Birmingham police officer’s inappropriate
use of force: Blanchard v. City of Birmingham, 2:10-CV-2250-KOB, and the beating of Anthony
Warren.9 Courts in the Eleventh Circuit have determined that three prior incidents over a six year
period,10 four previous incidents,11 four previous incidents in the last five years,12 and six prior
incidents13 would be insufficient to constitute “notice” to the municipality of a need to train and
supervise regarding the use of force.
Wardlow has only pointed to two cases involving the inappropriate use of force by a
Birmingham police officer and thus has not submitted substantial evidence to demonstrate that the
City’s training or policies as to the use of force constitute deliberate indifference or that there was
a pattern of constitutional violations. Accordingly, Count A, Wardlow’s § 1983 claim for
excessive force against Chief Roper in his official capacity is due to be dismissed.14

9

http://www.al.com/news/birmingham/index.ssf/2014/10/city_of_birmingham_
approves_ca.html.
10
Mindler v. Clayton County, 831 F.Supp. 856, 862 (N.D. Ga. 1993).
11
Gomez v. Metro Dade County, 801 F.Supp. 674, 679-80 (S.D. Fla. 1992).
12
Ott v. City of Mobile, 169 F.Supp.2d 1301, 1310-12 (S.D. Ala. 2001).
13
Owen v. City of Fort Lauderdale, 174 F.Supp.2d 1282, 1295-97 (S.D. Fla. 2001).
14
It is unclear from Whiten’s amended complaint which of his claims are against Chief
Roper in his official capacity and which are against Chief Roper in his individual capacity. (See
doc. 3). To the extent Whiten asserts the § 1983 claims in Counts C or D against Chief Roper in
his official capacity, he has not alleged a policy or custom of the City of Birmingham has caused
malicious prosecution or false imprisonment, merely that Chief Roper himself “has permitted and
8

Whiten’s Qualified Immunity – All Counts
Defendants argue the remaining claims (Counts A-E against Officer Whiten) are due to be
dismissed because Officer Whiten is entitled to qualified immunity. (Doc. 35 at 19-26). Qualified
immunity “shields public officials from suits against them in their individual capacities for torts
committed while performing discretionary duties unless the tortious act violates a clearly
established statutory or constitutional right.” Mahone v. Ben Hill County School Sys., 377 Fed.
App’x 913, 915 (11th Cir. 2010).
To be entitled to qualified immunity, a defendant must first prove he was acting within the
scope of his discretionary authority when the alleged wrongful conduct occurred. Jordan v. Doe,
38 F.3d 1559, 1565 (11th Cir. 1994). At the time of the incident, Officer Whiten was working as
a security guard for Black Market Bar and Grill, wore what appeared to Wardlow to be a police
shirt, and acted like a police officer by patrolling the bar and investigating suspicious behavior.
Though he may have been off-duty at the time, Whiten was engaged in carrying out his
discretionary authority. See, e.g., Bouye v. Marshall, 102 F. Supp. 2d 1357, 1362 (N.D. Ga. 2000)
(concluding a police officer working off-duty as an apartment complex security guard carried out
discretionary duty when he looked like a police officer, displayed his badge, and patrolled the
complex for suspicious behavior); Traver v. Meshriy, 627 F.2d 934, 937-38 (9th Cir. 1980)
(concluding an off-duty police officer working as a security teller, with primary responsibility in
the event of a crime to the police department rather than the bank, exercised discretionary duty
when he detained a customer).
Once a defendant establishes he was acting within his discretionary authority, the burden

ratified a pattern and practice of misconduct,” (see id. at ¶¶ 32 & 39), which is presumably an
argument directed to Chief Roper’s individual liability as a supervisor. See Mathews v. Crosby,
480 F.3d 1265, 1270 (11th Cir.2007) (discussing supervisory liability).
9

then shifts to the plaintiff to show that qualified immunity is not appropriate. White v. City of
Birmingham, 96 F. Supp. 3d 1260, 1285 (N.D. Ala. 2015). Courts ask two questions to determine
whether immunity is appropriate: (1) “Taken in the light most favorable to the party asserting the
injury, do the facts alleged show the officer’s conduct violated a constitutional right?” (2) “If a
violation could be made out on a favorable view of the parties’ submissions, . . . [was] the right
. . . clearly established?” Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003) (citing Saucier
v. Katz, 533 U.S. 194 (2001)). This two-part analysis may be performed in any order. Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
It is undisputed Wardlow has a right to be “free from excessive force in the course of an
investigatory stop or other ‘seizure’ of the person.” Kesinger v. Herrington, 381 F.3d 1243, 1248
(11th Cir. 2004). To establish an excessive force claim, a plaintiff must first show the government
“seized” the plaintiff within the meaning of the Fourth Amendment. See Beshers v. Harrison, 495
F.3d 1260, 1265 (11th Cir. 2007). A Fourth Amendment seizure exists when “a governmental
termination of freedom of movement [occurs] through means intentionally applied.” Brower v.
County of Inyo, 489 U.S. 593, 597 (1989).
If a plaintiff is seized, the court must determine “whether the force used to effectuate the
seizure was reasonable.” Beshers, 495 F.3d at 1266. “[T]o determine whether the amount of force
used by a police officer was proper, a court must ask whether a reasonable officer would believe
that this level of force is necessary in the situation at hand.” Lee, 284 F.3d at 1197 (internal
quotation marks omitted). Reasonableness “must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S.
386, 396 (1989). “Reasonableness cuts both ways, however . . . . [The court] cannot simply accept
the officer’s subjective version of events, but rather must reconstruct the event in the light most

10

favorable to the non-moving party and determine whether the officer’s use of force was excessive
under those circumstances.” Fils v. City of Aventura, 647 F.3d 1272, 1288 (11th Cir. 2011).
Wardlow and Whiten have very different descriptions of what happened the evening of
March 1, 2013. Wardlow believes that Officer Whiten was drinking alcohol; he testifies that
Whiten grew angry when Wardlow asked about the alcoholic beverage. Wardlow also testifies
that Whiten tried to provoke him, commented that he could arrest Wardlow for whatever he
wanted, and then blew up at Wardlow for talking to the blonde woman. Wardlow testified that
Whiten grew so angry that he eventually confronted Wardlow and slammed his head into the bar,
which essentially rendered Wardlow unconscious; the next thing Wardlow remembers after hitting
his face on the bar was waking up in the hospital. However, according to Whiten, he had not been
drinking that night, and Wardlow is the one who attempted to provoke him by stating that he did
not want to sit at the bar next to a police officer all night. Whiten testified that Wardlow was acting
strangely all evening and that he ultimately confronted Wardlow to ask what his problem was.
When Wardlow responded that Whiten was his problem, Whiten escorted him to the door and told
him he had had enough for that evening. According to Whiten, Wardlow was conscious, fighting
back, hurling threats, and attempting to reenter the bar, at which point Whiten tackled him to the
ground and hurt Wardlow’s face. Although there may be video surveillance footage that would
supposedly prove that Wardlow was conscious outside of the bar, that footage (whatever it may
show) was not made part of this summary judgment record.
Based on the conflicting evidence of record, there are genuine issues of material fact that
warrant jury consideration.

Summary judgment on the issue of qualified immunity is not

appropriate.

11

Chief Roper’s Qualified Immunity – All Counts
Defendants contend Chief Roper, in his individual capacity, is also entitled to qualified
immunity on all counts, due to the fact he did not personally engage in the conduct alleged by
Wardlow, nor was there evidence Chief Roper failed to train or supervise Whiten. (Doc. 35 at 2526). Wardlow’s response does not acknowledge or defend against this argument, and thus, to the
extent the argument could be applicable, Wardlow’s claims against Chief Roper in his individual
capacity are abandoned and due to be dismissed. See Coalition for the Abolition of Marijuana
Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000) (“The appellants’ failure to
brief and argue this issue during the proceedings before the district court is grounds for finding
that the issue has been abandoned.”); Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995) (dismissing undefended claims on summary judgment); Hudson v. Norfolk S. Ry.
Co., 209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001) (“When a party fails to respond to an argument
or otherwise address a claim, the Court deems such argument or claim abandoned.”). Qualified
immunity is not available as a defense to state law claims, however. D'Aguanno v. Gallagher, 50
F.3d 877, 879 (11th Cir. 1995). Therefore, qualified immunity cannot apply to Wardlow’s state
law malicious prosecution claim against Chief Roper in his individual capacity in Count E, and
Chief Roper is not entitled to judgment as a matter of law on this ground.
Whiten’s State Agent Immunity – Counts B and E
Defendants also argue that Officer Whiten is entitled to summary judgment on the state
law claims (Counts B and E) pursuant to Alabama’s peace officer immunity doctrine. (Doc. 35 at
26-29). Alabama law provides law enforcement officers and their municipal employers with
immunity from state law tort claims arising out of acts committed while these law enforcement
officers are engaged in the performance of a discretionary function. Ala. Code § 6-5-338; Ex parte

12

Cranman, 792 So. 2d 392 (Ala. 2000) (setting forth the test for determining whether a state agent’s
conduct constitutes a “discretionary function” under § 6-5-338).
Wardlow does not dispute that Whiten was acting as a peace officer at the time of the
incident. (Doc. 36 at 14). Therefore, the next questions are whether Whiten was performing
discretionary functions at the time of the incident and whether he acted willfully, maliciously, or
in bad faith. Cranman, 792 So. 2d at 405. For the same reasons stated above with respect to
qualified immunity as to the federal § 1983 claims, there are genuine issues of material fact that
warrant jury consideration.

Summary judgment on the basis of state-agent immunity is

inappropriate.
Merits of Claims against Whiten – Counts B, C, and D
Defendants also argue that Whiten is entitled to summary judgment on the merits of the
assault claim (Count B), the false imprisonment claim (Count C), and the malicious prosecution
claim (Count D). To prove assault, a plaintiff must demonstrate that (1) the defendant touched the
plaintiff, (2) the defendant intended to touch the plaintiff, and (3) the touching was committed in
a harmful or offensive way. Wood v. Cowart Enters., 809 So. 2d 835, 837 (Ala. Civ. App. 2001).
To prove false imprisonment (an alternative claim to the malicious prosecution tort) a plaintiff
must prove: (1) detention of a person, (2) the unlawful nature of the detention, and (3) damages;
false imprisonment, however, does not require the element of malice or lack of probable cause. De
Armond v. Saunders, 243 Ala. 263, 265 (1942). To succeed on a malicious prosecution claim, a
plaintiff must prove: (1) institution of a prior judicial proceeding by the present defendant, (2) a
lack of probable cause, (3) malice on the defendant’s part, (4) termination of the prior proceeding
in favor of the present plaintiff, and (5) damage. Delchamps, Inc. v. Bryant, 738 So. 2d 824, 83133 (Ala. 1999). Once again, as the material facts are genuinely disputed, summary judgment on

13

the merits is inappropriate.
Punitive Damages
Defendants also seek summary judgment as to any claim Wardlow asserts for punitive
damages against both Roper and Whiten. (Doc. 35 at 31). In support, they cite Alabama Code.
§ 6-11-26, which prohibits an award of punitive damages “against the State of Alabama or any
county or municipality thereof, or any agency thereof[,]” and City of Newport v. Fact Concerts,
Inc., 453 U.S. 247 (1981), which forbids punitive damages against a municipality under § 1983.
Because Wardlow’s claims against Roper in his official capacity are due to be dismissed, this
argument is moot as applied to him in anything other than his individual capacity. However,
Wardlow’s claims against Whiten and against Chief Roper in his individual capacity are not claims
against any of the entities identified in § 6-11-26, and nothing in City of Newport prohibits an
award of punitive damages against a tortfeasor government official. See City of Newport, 453 U.S.
at 267 (“Under ordinary principles of retribution it is the wrongdoer himself who is made to suffer
for his unlawful conduct. If a government official acts knowingly and maliciously to deprive others
of their civil rights, he may become the appropriate object of the community's vindictive
sentiments. A municipality, however, can have no malice independent of the malice of its officials.
Damages awarded for punitive purposes, therefore, are not sensibly assessed against the
governmental entity itself.”) (internal citations and emphasis omitted, emphasis added).

If

Wardlow is successful in his claims against Whiten and against Chief Roper in his individual
capacity in Count E, neither Alabama Code § 6-11-26 nor City of Newport prevent him from
receiving an award of punitive damages.
IV. Conclusion
Based upon the foregoing, the defendants’ motion for summary judgment is GRANTED

14

IN PART and DENIED IN PART. There being no genuine issues of material fact as to the issue
of municipal liability or qualified immunity as to Chief Roper, Chief Roper is entitled to summary
judgment on all claims against him in his official capacity and on all claims against him in his
individual capacity except Wardlow’s state law malicious prosecution claim in Count E. The
remaining claims asserted against Whiten proceed because genuine issues of material fact preclude
judgment as a matter of law.
DONE this 29th day of March, 2017.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

15