Anderson v. Homewood et al

Filing 35

MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 12/27/16. (MRR, )

FILED
2016 Dec-27 PM 03:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RANDALL COREY ANDERSON,

)
)
Plaintiff,
)
)
vs.
)
)
CITY OF HOMEWOOD,
)
WAL-MART STORES EAST, L.P., )
LT. TIM ROSS, OFFICER
)
MICHAEL JEFFCOAT, DAVID
)
ROBERTS,
)
)
Defendant.
)

Case No. 2:16-cv-439-TMP

MEMORANDUM OPINION
This cause is before the court on motions to dismiss filed by the various
defendants. For the reasons explained below, the motions are due to be granted in
part and denied in part, with further proceedings with respect some of plaintiff’s
claims.
Procedural Background
The plaintiff, Randall Corey Anderson, filed his original complaint in the
Circuit Court of Jefferson County, Alabama, on February 11, 2016, alleging
various claims under state and federal law against defendants City of Homewood

(‘the City” or “Homewood”), Wal-mart Stores East, L.P. (“Wal-mart”), 1 and
various fictitiously-named defendants. 2 That action was removed to this court on
the basis of federal-question subject matter jurisdiction on March 17, 2016. (Doc.
1). At the same time, the City filed its first motion to dismiss the complaint. (Doc.
3). Wal-mart followed suit, filing its motion to dismiss on March 21, 2016. (Doc.
5). After responding to the motions (see Doc. 8), plaintiff filed his First Amended
Complaint on July 15, 2016, 3 adding as defendants Lt. Tim Ross, Officer Michael
Jeffcoat, and Wal-mart store manager David Roberts. Thereafter, renewed motions
to dismiss 4 were filed by the City, Wal-mart, and newly-added defendants Ross,

1

In his original complaint, plaintiff identified this defendant as “Walmart Department Store.”
The defendant has indicated that its correct legal name is that set forth in the text above.
2

Although Alabama law recognizes fictitious party pleading, see Columbia Eng'g Int'l, Ltd. v.
Espey, 429 So. 2d 955, 958 (Ala. 1983), federal law generally does not. See Richardson v.
Johnson, 598 F.3d 734, 738 (11th Cir. 2010). In any event it is not necessary for the court to
address the propriety of these defendants at this point.
3

In the meantime, the parties filed their consent to the exercise of jurisdiction by the magistrate
judge pursuant to 28 U.S.C. § 636(c) on April 19, 2016. (Doc. 10).
4

Because the First Amended Complaint operated to supersede and supplant the original
complaint, the motions to dismiss filed before the complaint was amended are now moot as they
related to a pleading that has been superseded. See, e.g. Davis v. Mortg. Elec. Regis. Sys., Inc.,
2015 WL 4561547, at *6 (N.D. Ga. July 28, 2015) (‘[T]the amended complaint is the operative
pleading and… the motion to dismiss the amended complaint supercedes [sic] and moots the
motion to dismiss the original complaint.”); see also Wimberly v. Broome, 2016 WL 3264346, at
*1 (S.D. Ga. Mar. 29, 2016), report and recommendation adopted, 2016 WL 3360521 (S.D. Ga.
June 14, 2016) (cases collected therein). Thus, the operative motions are now documents 24, 25,
and 27. Documents 3 and 5 are hereby deemed MOOT.
2

Jeffcoat, and Roberts (see Docs. 24, 25, and 27), to which the plaintiff has
responded.
Standard of Review
The motions to dismiss assert that the First Amended Complaint is due to be
dismiss because it fails to comply with Fed. R. Civ. P. 8(a) and it fails to state a
claim for relief under Rule 12(b)(6). In particular, the defendants argue that the
complaint fails to allege sufficient facts to show that the “pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). 5
Before the Supreme Court decided Bell Atlantic v. Twombly, 550 U.S. 544,
127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), a court could dismiss a complaint only
where it was clear that no relief could be granted under any set of facts that could
be proved consistent with the allegations, as set forth in Conley v. Gibson, 355
U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). The well-established Rule 12(b)(6)

5

The court notes in passing that the First Amended Complaint also commits several of the sins,
both mortal and venial, associated with “shotgun pleadings” discussed in Weiland v. Palm Beach
County Sheriff's Office, 792 F.3d 1313 (11th Cir. 2015). For example, the First Amended
Complaint commits the “mortal” sin of “containing multiple counts where each count adopts the
allegations of all preceding counts, causing each successive count to carry all that came before
and the last count to be a combination of the entire complaint.” Id. at 1322. The complaint also
commits the venial sin of “not separating into a different count each cause of action or claim for
relief.” Id. at 1322-23. It also contains “the relatively rare sin of asserting multiple claims
against multiple defendants without specifying which of the defendants are responsible for which
acts or omissions, or which of the defendants the claim is brought against.” Id. at 1323 (11th Cir.
2015).
3

standard set forth in Conley was expressly rejected in Twombly when the Supreme
Court examined the sufficiency of a plaintiff’s complaint and determined:

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and
plain statement of the claim showing that the pleader is entitled to
relief,” in order to “give the defendant fair notice of what the ... claim
is and the grounds upon which it rests,” Conley v. Gibson, 355 U.S.
41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff's obligation to provide the “grounds” of
his “entitle[ment] to relief” requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not
do. Factual allegations must be enough to raise a right to relief above
the speculative level.

550 U.S. at 555 (citations omitted). The Court went on to criticize Conley, stating
that “[t]he ‘no set of facts’ language has been questioned, criticized, and explained
away long enough” by courts and commentators, and “is best forgotten as an
incomplete, negative gloss on an accepted pleading standard: once a claim has
been stated adequately, it may be supported by showing any set of facts consistent
with the allegations in the complaint.”

Twombly, 550 U.S. at 562-63.

The

Supreme Court emphasized, however, that “we do not require heightened fact
pleading of specifics, but only enough facts to state a claim to relief that is
plausible on its face.” 550 U.S. at 570.

4

The Supreme Court expanded on the Twombly standard when it decided
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009),
reiterating the Twombly determination that a claim is insufficiently pleaded if it
offers only “labels and conclusions” or “a formulaic recitation of the elements of a
cause of action.” Iqbal, 129 S. Ct. at 1949. The Court further explained:

Two working principles underlie our decision in Twombly. First, the
tenet that a court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.... 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. Second, only a complaint that
states a plausible claim for relief survives a motion to dismiss.
Determining whether a complaint states a plausible claim for relief
will, as the Court of Appeals observed, be a context specific task that
requires the reviewing court to draw on its judicial experience and
common sense. But where the well pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the
complaint has alleged but it has not “show[n]”—“that the pleader is
entitled to relief.”

Iqbal, 129 S. Ct. at 1949-50 (citation omitted). See also Sinaltrainal v. Coca-Cola
Co., 578 F.3d 1252 (11th Cir. 2009), overruled on other grounds by Mohamad v.
Palestinian Authority, ___U.S.___, 132 S. Ct. 1702, 182 L. Ed. 2d 720 (2012)
(“The mere possibility the defendant acted unlawfully is insufficient to survive a
5

motion to dismiss” and “the well pled allegations must nudge the claim ‘across the
line from conceivable to plausible”” (quoting Iqbal and Twombly)). Applying
these standards, the court examines the merits of the defendants’ motions to
dismiss in the light of the facts (not conclusions) pleaded in the First Amended
Complaint.

Facts Alleged in the Complaint
The court assumes the following facts, taken from the First Amended
Complaint, to be true for purposes of analyzing the motions to dismiss.
On December 26, 2014, the plaintiff participated in a Black Lives Matter
demonstration at the Wal-mart store on Lakeshore Parkway in Homewood. After
the demonstration was over, he was talking in the parking lot to a small group of
people who also participated. Defendant Ross, then a lieutenant in the Homewood
Police Department, approached a man with whom plaintiff was speaking.
Lt. Ross6 informed the man that he was being placed under arrest for trespassing,
and he ordered a subordinate officer to take the man into custody. Plaintiff began
using his cellphone to video record the confrontation and arrest of the other man.
Lt. Ross then ordered plaintiff to leave immediately or “you can go with him.”
Plaintiff complied and began walking toward his car parked in the parking lot. As
6

Since this incident, Lt. Ross has been promoted to Chief of the Homewood Police Department,
but that appears to have no bearing on the facts of the case.
6

he approached his car, he heard a voice believed by him to be Lt. Ross shout, “Too
late.”

Defendant Jeffcoat and “other officers” then arrested plaintiff.

In the

process of the arrest, plaintiff was shoved against his car, bruising his wrist and
putting long scratched into the paint finish of his car.
Plaintiff alleges that Officer Jeffcoat later filled out an incident/offense
report in which he reported that:

Anderson was filming the encounter with his cell phone. Lt. Ross
repeatedly told Anderson to stop filming and leave. Anderson refused
and continued to record the encounter. Lt. Ross instructed me to take
Anderson into custody for criminal trespass which I did. Anderson
was asked if he had identification on him. He stated it was in his
vehicle. Anderson was asked for, and gave, verbal consent to search
the vehicle (GA [tag number omitted]). Anderson then spontaneously
stated that he had a firearm in the vehicle. In the center console I
located a Georgia license ([driver’s license number omitted]). In the
glove box I located a loaded Glock 26 handgun (serial # [omitted]).

Plaintiff was transported to the Homewood City Jail in a police cruiser.
Later, defendant David Roberts, as the manager of the Wal-mart store,
signed a criminal complaint for third-degree trespass, in which he swore:

Before me, the undersigned authority, personally appeared this day
the undersigned complainant who upon 1st [sic] being duly sworn,
states on oath the he/she has probable cause for believing and does
believe that Randall Corey Anderson, Defendant, whose name is
otherwise unknown to the complainant, did on or about December 26,
2014, commit the offense of Criminal Trespass 3RD within the
7

city/Town of Homewood, or in the police jurisdiction thereof and that
he/she did:
knowingly enter or remain unlawfully in or upon the premises of
WalMart [sic], to-wit: After being told by WalMart Store Manager
David Roberts, in the presence of Homewood Police to leave the
property of WalMart located at 209 Lakeshore Parkway, subject
(Anderson) refused to leave as instructed,
in violation of Ordnance Number 14-1 which embraces Section 13A7-4 Code of Alabama 1975, previously adopted, effective and in force
at the time the offense was committed.

On July 23, 2015, plaintiff came to trial on the trespass charge against him.
During the trial, Roberts testified that he did not issue a trespass warning to the
plaintiff individually, contrary to his own sworn criminal complaint, and that he
could not remember seeing the plaintiff inside the Wal-mart store. Plaintiff was
acquitted by jury verdict at trial (Doc. 21, ¶ 58).

Claims Alleged in the Complaint
The First Amended Complaint consists of eleven purported claims for relief,
as follows:
1. First Claim—Plaintiff’s arrest violated his Fourth Amendment right to be
free of unreasonable searches and seizures because there was “no sufficient legal
basis to support an arrest”; and the defendants’ actions deprived the plaintiff of
“life, liberty, and property without due process of law, and the right to the equal
protection of the laws,” secured by the Fourteenth Amendment.

8

2. Second Claim—The “gross negligence and/or deliberate indifference” of
the defendants was “the proximate cause of violation of Randall’s [sic] Anderson’s
constitution rights and damage to his personal property and false imprisonment.”
3. Third Claim—It was a policy and custom of the City to authorize the use
of excessive force in violation of plaintiff’s constitutional rights and causing
damage to his personal property. Defendant Wal-mart became “a co-conspirator
when a warrant of arrest was signed for the Plaintiff,” leading to his ultimate
acquittal at trial.
4. Fourth Claim—“Plaintiff was caused to be denied equal protection under
the laws and subjected to false arrest in violation of 42 U.S.C. Section 1983.”
5. Fifth Claim—“Plaintiff was caused to be denied equal protection under
the laws and subjected to false imprisonment in violation of 42 U.S.C. Section
1983.”
6. Sixth Claim—“Plaintiff was caused to be denied equal protection under
the Alabama State Constitution and subjected due to the Defendant’s
unconstitutional official misconduct amounting to an abuse of the judicial
process.”
7.
Seventh Claim—“[T]he Defendants mentioned herein conducted
themselves in a manner that was extreme, outrageous, and unjustified which go
beyond the boundaries of professionalism and decency.”
8. Eighth Claim—The City’s posting of the plaintiff’s photograph on the
Homewood Police Department’s social media site slandered him and placed him in
a false light.
9. Ninth Claim—As a result of the defendant’s actions, plaintiff suffered
“malicious abuse of process, false arrest, failure to train, false imprisonment,
violation of constitutional & civil rights, and slander.”
10. Tenth Claim—The defendants subjected plaintiff to an “assault and
battery.”
11. Eleventh Claim—“[T]he Defendants [sic] failure to supervise and
train its agents/employees caused harm to Randall Anderson.”
9

The Motions to Dismiss
The City filed its instant motion to dismiss on August 15, 2016 (Doc. 24),
contending that the claims against it should be dismissed because:

First, the amended complaint fails to state a claim upon which relief
can be granted. Fed. R. Civ. 12(b). Second, the amended complaint
fails to satisfy pleading standards. Fed. R. Civ. P. 8(a); Ashcroft v.
Iqbal, 556 U.S. 662 (2009). Third, the City is immune to state law
claims under Alabama Code § 6-5-338 (1975). Fourth, the City is
immune under Alabama Code § 11-47-190 (1975) for all state law
claims for willful, wanton, and reckless torts. Fifth, the City is
shielded from punitive damage claims.

On that same day, defendants Ross and Jeffcoat also filed their motion to dismiss
(Doc. 25), asserting many of the same grounds for dismissal of the First Amended
Complaint:

First, the amended complaint fails to state a claim upon which relief
can be granted. Fed. R. Civ. 12(b). Second, the amended complaint
fails to satisfy pleading standards. Fed. R. Civ. P. 8(a); Ashcroft v.
Iqbal, 556 U.S. 662 (2009). Third, Ross and Jeffcoat are entitled to
qualified immunity because, among other reasons, Anderson has
failed to plead violation of a clearly established constitutional right.
Fourth, Ross and Jeffcoat are immune under Alabama Code § 6-5-338
(1975). Fifth, Ross and Jeffcoat cannot be liable under Alabama law
for tortious supervision because they were not employers.

The City and defendants Ross and Jeffcoat filed a Memorandum of Points and
Authority jointly in support of their motions. (Doc. 26). Likewise on August 15,
10

2016, defendants Wal-mart and Roberts filed their motion to dismiss (Doc. 27),
asserting that First Amended Complaint failed to state a claim for relief in light of
the pleading standards required by Rule 8(a) of the Federal Rules of Civil
Procedure, and that defendant Roberts had not been sufficiently served with
sufficient process. Plaintiff filed separate responses to each of these motions on
August 29, 2016. (Docs. 30, 31, 32, and 33), and defendants Homewood, Ross,
and Jeffcoat filed a reply to the plaintiff’s responses on September 1, 2016.
(Doc. 34).
Analysis and Discussion
At the outset, the court notes that a Rule 12(b)(6) motion to dismiss for
failure to state a claim and reference to the pleading standards of Fed. R. Civ. P.
Rule 8(a) make essentially the same argument for dismissal; they are not truly
separate bases for challenging a complaint. Rather, the pleading standards of
Rule 8(a) define the criteria by which the sufficiency of a pleading is assessed in
relation to a challenge mounted under Rule 12(b)(6). As Twombly and Iqbal make
clear, whether a complaint can be dismissed under Rule 12(b)(6) for failing to state
a claim depends in part on whether the complaint contains sufficient factual
allegations, not mere labels or conclusions, from which a reasonable person can
conclude that the complaint states a “plausible” legal claim. As the Eleventh
Circuit explained in American Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1289
11

(11th Cir. 2010), “‘[f]actual allegations must be enough to raise a right to relief
above the speculative level ... on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).’ The [Supreme] Court ultimately held
that to survive a motion to dismiss, a complaint must now contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
(Internal citations omitted).

Reference to mere labels or legal conclusions

unsupported by allegations of fact is not enough. Thus, the analysis of a motion to
dismiss for failure to state a claim requires the court to determine whether, in light
of the well-pleaded factual allegations of the complaint, a “plausible” 7 legal claim
is stated. If the pleaded facts do so, a particular complaint is not due to be
dismissed for failure to state a claim; if they do not, the claim may be dismissed.8
With this understanding in mind, the court must examine the legal
sufficiency of the facts pleaded in support of each claim alleged by the plaintiff.
Defendants Wal-mart and Roberts have offered no brief or memoranda to point to
particular defects in the facts alleged by the plaintiff, but have stated simply that
the complaint fails to state a claim.

In the absence of a plain and obvious

7

The facts pleaded in the complaint, assumed to be true, most show more than a mere
“possible” claim of legal wrongdoing, but they do not need to rise to the level of showing a
“probability” of a viable claim. See Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1289
(11th Cir. 2010).
8

Despite the usual language referring to the dismissal of the “complaint” for failure to state a
claim, in reality the court is required to analyze each claim in the complaint, in a claim-by-claim
basis. This is consistent with the language of Rule 12(b)(6), allowing dismissal where there is a
failure to state a “claim” for relief.
12

insufficiency in the plaintiff’s factual pleading, the court is not required to scour
the complaint looking for deficiencies.

Defendants Homewood, Ross, and

Jeffcoat, in contrast, have filed a memorandum of points and authorities to bring to
the court’s attention those allegations they contend fail to meet the Twombly
plausibility standard.
A. Claims against the City of Homewood
1. Federal-law Claims 9
The defendants’ memorandum of points and authorities asserts no particular
argue for dismissal of the federal-law claims pleaded against the City of
Homewood, other than the contention that the First Amended Complaint is a
“shotgun” pleading that fails to meet the notice requirement of Rule 8(a).
Although the court agrees that the complaint is an example of a “shotgun”
pleading, it does not agree that it fails to give fair notice to the City of the claims
alleged against it. Plainly, the plaintiff contends that Lt. Ross and Officer Jeffcoat
arrested him illegally without probable cause and used illegally excessive force in
doing so. Based on that, he contends that the City was deliberately indifferent to
9

The court construes the First Amended Complaint to allege the following claims grounded in
federal law: First Claim—arrest without probable cause (Fourth Amendment) and denial of due
process and equal protection (Fourteenth Amendment); Second Claim—deliberate indifference
to violation of the plaintiff’s constitutional rights; Third Claim—use of excessive force in
violation of the Fourth Amendment; Fourth Claim—arrest without probable cause (Fourth
Amendment) and denial of equal protection (Fourteenth Amendment); and Fifth Claim—false
imprisonment and denial of equal protection (Fourteenth Amendment). To be clear, the Second
Claim also appears to involve elements of a state-law claim for gross negligence causing
property damage and false imprisonment.
13

the need to train its officers on the proper standards for making a constitutionallyproper arrest. Whether plaintiff can actually prove these allegations is not the
question at this stage of the case. Insofar as the City’s motion to dismiss seeks
dismissal of federal-law claims, it is DENIED.
2. State-law Claims
Even though the First Amended Complaint give the City fair notice of the
plaintiff’s Fourth and Fourteenth Amendment claims against it, there are some
state-law claims pleaded in the complaint that are legally insufficient or barred
from going forward. In its motion to dismiss, the City has explicitly argued that
Alabama Code § 11-47-190 (1975) shields it from liability for any state-law claims
based on willful, wanton, or reckless conduct by its officers. 10 Alabama Code
§ 11-47-190 (1975) provides in relevant part, “No city or town shall be liable for
damages for injury done to or wrong suffered by any person or corporation, unless
10

The City of Homewood also contends that it has immunity from liability pursuant to Ala.
Code § 6-5-338 (1975), which grants immunity to municipalities for the acts of its law
enforcement officers to the extent the law enforcement officer himself can claim immunity.
“‘[U]nder principles of vicarious liability, where a municipal employee enjoys immunity, the
municipality likewise is immune as to claims based on the employee’s conduct.’ City of Bayou
La Batre v. Robinson, 785 So. 2d 1128, 1131 (Ala. 2000).” Brown v. City of Huntsville, Ala.,
608 F.3d 724, 742 (11th Cir. 2010). Because the City’s immunity is derivative of the immunity
granted to police officers, the City is immune from claims only to the extent to Ross and Jeffcoat
can claim it. Because, as discussed more below, the court cannot determine from the pleadings
alone that Lt. Ross and Officer Jeffcoat are entitled to the immunity provided under this
provision against every claim pleaded by the plaintiff, it is too early to determine on a motion to
dismiss that the City is entitled to it. Whether the immunity provided by Ala. Code § 6-5-338 is
available to the City, Ross, or Jeffcoat on such claims as arresting the plaintiff without probable
cause and using excessive force to make the arrest, the determination of the City’s immunity on
these claims must await further factual development.
14

such injury or wrong was done or suffered through the neglect, carelessness, or
unskillfulness of some agent, officer, or employee….” This provision has been
authoritative interpreted to mean that cities are not liable for intentional torts
committed by its agents and employees. “Section 11–47–190 provides for an
action against a municipality for the ‘neglect, carelessness or unskillfulness' of its
agents, not for their intentional torts.” Franklin v. City of Huntsville, 670 So. 2d
848, 850 (Ala. 1995); see Ex parte City of Gadsden, 718 So. 2d 716, 721 (Ala.
1998) (“Section 11–47–190 ... absolves a city from liability for an intentional tort
committed by one of its agents....”). “In sum, under § 11–47–190, a city is liable
for negligent acts of its employees within the scope of their employment, but not
intentional torts of its employees.” Brown v. City of Huntsville, Ala., 608 F.3d
724, 743 (11th Cir. 2010). Likewise, a municipality is not liable for the wanton or
reckless acts of its employees. “[B]ecause the City cannot be held liable for
wanton or intentional conduct, it is likewise immune from suit for those claims
asserted by the plaintiffs alleging wanton and/or intentional conduct by the City.”
Ex Parte Labbe, 156 So. 3d 368, 374 (Ala. 2014); Town of Loxley v. Coleman,
720 So.2d 907, 909 (Ala. 1998) (“This Court has construed § 11–47–190 to
exclude liability for wanton misconduct.”); Ex parte Harris, 2016 WL 4204837, at
*12 (Ala. July 29, 2016). Thus, to the extent plaintiff alleges a state-law claim
against the City of Homewood based upon intentional or even reckless and wanton
15

conduct by its employees, the City is not liable. Under § 11-47-190, the City can
be liable only for the negligent “unskillfulness” of its employees.
Among the state-law claims pleaded by the plaintiff in this case are the
allegations that the City and its employees subjected him to “official misconduct
amounting to an abuse of judicial process” (Sixth Claim); tort of outrage (Seventh
Claim); slander and false light (Eighth Claim); malicious abuse of process, false
arrest, false imprisonment, “failure to train,” “violation of constitutional & civil
rights,” and slander (Ninth Claim); and assault and battery (Tenth Claim). Some of
these claims, by their nature, can only allege intentional or wanton misconduct, not
mere negligence. See Walker v. City of Huntsville, 62 So. 3d 474, 501 (Ala. 2010)
(outrage and invasion of privacy are intentional torts). It is possible that other
claims may or may not be based on intentional or wanton conduct. As the Middle
District of Alabama has explained:

“In Franklin v. City of Huntsville, 670 So. 2d 848 (Ala.1995), the
court held that claims for false arrest and false imprisonment may be
brought against municipalities as long as the plaintiff alleges a fact
pattern that demonstrates neglect, carelessness, or unskillfulness. Id.
at 851. . . . Similarly, the motion to dismiss is due to be denied as to
the claim for assault and battery because the Supreme Court of
Alabama has determined that an assault and battery can occur because
of unskillfulness. See City of Birmingham v. Thompson, 404 So. 2d
589, 592 (Ala.1981).”

16

Hawkins v. City of Greenville, 101 F. Supp. 2d 1356, 1365 (M.D. Ala. 2000); see
also Brown v. City of Huntsville, Ala., 608 F.3d 724, 743 (11th Cir. 2010) (“[T]he
Alabama Supreme Court [has] held that where it was unclear whether the plaintiff's
claims for ‘assault and battery, false imprisonment and false arrest,’ actually
asserted ‘vicarious liability for an intentional tort against the City,’ § 11–47–190
would not immunize the City ‘where a plaintiff alleges a factual pattern that
demonstrates neglect, carelessness, or unskillfulness.’”); but see Ex parte Harris,
2016 WL 4204837, at *12 (Ala. July 29, 2016) (Dismissal of city was proper
where the complaint alleged “claims of malicious prosecution, false arrest, false
imprisonment, harassment, intentional infliction of emotional distress, libel, and
slander…” as “willful and intentional acts.”); Waters v. City of Geneva, 47 F.
Supp. 3d 1324, 1340 (M.D. Ala. 2014). The court notes also that slander can arise
from negligence. See Cottrell v. Nat'l Collegiate Athletic Ass'n, 975 So. 2d 306,
333 (Ala. 2007) (explaining that private persons can prove defamation if the
defendant negligently made defamatory statements).
In the instant case, it is not clear that the plaintiff has pleaded the claims of
false arrest, false imprisonment, assault and battery, and slander as intentional or
wanton acts, as opposed to merely negligent acts, by the defendants. His reference
in the Second Claim to “gross negligence” at least suggests that he may be
attempting to plead them as a form of negligent conduct. Whether these claims can
17

survive under Alabama Code § 11-47-190 depends upon the facts of each case and,
therefore, are not susceptible to dismissal prior to discovery. 11
Other claims, however, such as plaintiff’s claims for “abuse of judicial
process” and “malicious abuse of process,” are not only the same claim and
redundant, but also cannot be asserted against the City because, as a matter of law,
a municipality is not capable of the required “malice.” See Walker v. City of
Huntsville, 62 So. 3d 474, 501 (Ala. 2010). 12 These claims must be dismissed. 13
In summary, therefore, the City of Homewood’s motion to dismiss will be
GRANTED as to plaintiff’s state-law claims for abuse of process (Sixth Claim and
part of Ninth Claim) and the tort of outrage (Seventh Claim), but DENIED as to
his claims for gross negligence, false arrest, false imprisonment, slander/false light,
assault and battery, and failure to train.
11

Of course if the evidence developed during discovery establishes a fact pattern of intentional
conduct, not just negligent unskillfulness, these claims could not be asserted against the City.
See Ex parte Harris, 2016 WL 4204837, at *12 (Ala. July 29, 2016) (claims of malicious
prosecution, false arrest, false imprisonment, harassment, intentional infliction of emotional
distress, libel, and slander were based upon intentional acts of a city employee and, therefore, the
municipal defendant was immune).
12

It follows logically that plaintiff cannot recover punitive damages against the City on any of
his state-law claims. The City is immune under Ala. Code § 11-47-190 on any claim based on
something other than mere negligence. However, mere negligence does not support the
imposition of punitive damages. See Lafarge N. Am., Inc. v. Nord, 86 So. 3d 326, 335 (Ala.
2011)(“Punitive damages cannot be awarded on a negligence claim”). The only state-law claims
that can get by the immunity of § 11-47-190 are those based on negligence alone, and thus are
not capable of supporting a punitive damages award.
13

The plaintiff has not pleaded a state-law claim for malicious prosecution, but if he had, it too
would be subject to dismissal as to the City for the same reason as the abuse of process claim, i.e.
the City is legally incapable of malice.
18

B. Claims against Lt. Ross and Officer Jeffcoat
1. Federal-law Claims
Defendants Lt. Ross and Officer Jeffcoat also move to dismiss the
complaint, making arguments similar to those asserted by the City of Homewood.
Insofar as they contend that the complaint should be dismissed because it is a
shotgun pleading and fails to comply with the pleading standards of Rule 8(a), the
motion will be DENIED. Although not an example of clarity, the complaint
adequately notifies Ross and Jeffcoat of the claims made against them.
Unlike the City, 14 Ross and Jeffcoat contend they are entitled to qualified
immunity with respect to the federal constitutional claims against them.

A

summary of qualified immunity in the context federal constitutional claims states:

“Qualified immunity offers complete protection for government
officials sued in their individual capacities if their conduct ‘does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Vinyard v. Wilson, 311 F.3d
1340, 1346 (11th Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)). …
Qualified immunity from suit is intended to “allow government
officials to carry out their discretionary duties without the fear of
personal liability or harassing litigation, protecting from suit all but
the plainly incompetent or one who is knowingly violating the federal
law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal
quotation marks and citations omitted).
14

The City, of course, cannot claim qualified immunity, which is available only to individual
defendants.
19

Courts utilize a two-part framework to evaluate qualified immunity
claims. One inquiry 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) (citing Saucier v. Katz, 533 U.S. 194, 201, 121
S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001)). If the facts, construed
as they must be in this summary judgment appeal in the light most
favorable to the plaintiff, show that a constitutional right has been
violated, another inquiry is whether the right violated was “clearly
established.” Saucier, 533 U.S. at 201, 121 S. Ct. at 2156. Both
elements of this test must be present for an official to lose qualified
immunity, and this two-pronged analysis may be done in whatever
order is deemed most appropriate for the case. Pearson v. Callahan,
555 U.S. 223, 129 S.Ct. 808, 821, 172 L.Ed.2d 565 (2009).

Brown v. City of Huntsville, Ala., 608 F.3d 724, 733–34 (11th Cir. 2010). When
qualified immunity is raised in a motion to dismiss, the well-pleaded facts in the
complaint are deemed to be true for assessing whether, in the first prong, a
constitutional violation has occurred.
As discussed above, the federal-law claims alleged by plaintiff are: First
Claim—arrest without probable cause (Fourth Amendment) and denial of due
process and equal protection (Fourteenth Amendment); Second Claim—deliberate
indifference to violation of the plaintiff’s constitutional rights; Third Claim—use
of excessive force in violation of the Fourth Amendment; Fourth Claim—arrest
without probable cause (Fourth Amendment) and denial of equal protection
(Fourteenth Amendment); and Fifth Claim—false imprisonment and denial of
equal protection (Fourteenth Amendment). Because the Second Claim does not
20

itself allege a distinct constitutional violation, and because the Fourth Claim is
essentially redundant of the First Claim, the federal claims pleaded against Ross
and Jeffcoat are that they unconstitutionally arrested plaintiff without probable
cause to do so, they violated his Fourteenth Amendment rights to due process and
equal protection when they arrested him, they used unconstitutionally excessive
force in effecting his arrest, and they denied him equal protection by falsely
imprisoning him. The court will consider qualified immunity with respect to each
of these claims, assuming plaintiff’s well-pleaded facts to be true.
a. Arrest Without Probable Cause
The First Claim and the Fourth Claim allege redundantly that the plaintiff
was arrested without probable cause and, in so doing, defendants Ross and Jeffcoat
deprived him of due process of law and equal protection. The first step in the
qualified immunity analysis is whether the facts pleaded by the plaintiff establish a
constitutional violation. A concise summary of the plaintiff’s factual allegations is
that he participated in a demonstration at the Wal-mart store in Homewood. After
the demonstration was over, he saw Lt. Ross arresting another man who
participated in the demonstration. The plaintiff began to record the arrest on his
cellphone video, but Lt. Ross instructed him to leave, or he would be arrested also.
Plaintiff stopped recording, gathered his belongings, and began walking to his car,
when he heard Lt. Ross say, “Time’s up!” Ross instructed Officer Jeffcoat to put
21

the plaintiff under arrest. In doing so, defendant Jeffcoat shoved the plaintiff
against plaintiff’s car, bruising the plaintiff’s wrist and scratching the finish of the
car.

Plaintiff was then transported to the Homewood City Jail where, later,

defendant Roberts (the manager of the Wal-mart store) signed a complaint to
charge the plaintiff with trespassing at the store.
Assuming these facts to be true, the plaintiff has stated a claim for an illegal
arrest without probable well enough to survive a motion to dismiss and to proceed
to discovery. In essence, he alleges that he complied with Lt. Ross’s instructions
to leave, but before he could, Ross ordered him arrested. It is not clear what Ross
based his arrest on, whether it was trespass, disorderly conduct, or disobeying a
lawful order. 15 In any event, under plaintiff’s version of the facts, which the court
must assume to be true at this stage of the case, there was not probable cause for
arrest on any of these grounds. “Probable cause exists where the facts within the
collective knowledge of law enforcement officials, derived from reasonably
trustworthy information, are sufficient to cause a person of reasonable caution to
believe that a criminal offense has been or is being committed.” Brown v. City of
Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010), citing Madiwale v. Savaiko,
117 F.3d 1321, 1324 (11th Cir. 1997). Because Wal-mart is a public store, Ross
alone could not have determined that plaintiff was trespassing, nor is there any
15

The First Amended Complaint quoted from Officer Jeffcoat’s arrest report to the effect that
Lt. Ross instructed him to arrest plaintiff for criminal trespass. (Doc. 21, at ¶ 34).
22

indication in the pleaded facts that he was disorderly or was disobeying Ross’s
order to leave. A person of “reasonable caution” had no basis to believe that “a
criminal offense ha[d] been or [was] being committed” by the plaintiff.
Qualified immunity can exist even when probable cause is missing, as long
as a reasonable officer could believe, even mistakenly, that probable cause existed.
Qualified immunity is not lost if there is arguable probable cause for the arrest.
“Arguable probable cause exists where ‘reasonable officers in the same
circumstances and possessing the same knowledge as the Defendants could have
believed that probable cause existed to arrest Plaintiff.’” Brown, at 734, quoting
Kingsland v. City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004). Whether,
under the circumstances pleaded here, Ross and Jeffcoat had arguable probable
cause turns on further factual development. Based simply on the facts as pleaded
by the plaintiff, it cannot be said that even arguable probable cause to arrest him
existed.
Even though the plaintiff’s claim for an illegal arrest without probable cause
survives at this time against a qualified immunity challenge, it is clear that the
claim is grounded entirely on the Fourth Amendment and there is no Fourteenth
Amendment due process or equal protection element to the claim. The standard
for assessing whether an arrest complies with the Fourth Amendment requirement
of probable cause (or arguable probable cause) is the Fourth Amendment, not the
23

Fourteenth Amendment due process or equal protection clauses. See Albright v.
Oliver, 510 U.S. 266, 273, 114 S. Ct. 807, 813, 127 L. Ed. 2d 114 (1994); Graham
v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865, 1871, 104 L. Ed. 2d 443 (1989).
Thus, to the extent plaintiff attempts to plead a violation of the Fourteenth
Amendment guarantees of due process and equal protection 16 arising out of an
arrest, the claim is due to be dismissed, as the Fourth Amendment is the
appropriate basis for analyzing the legality of an arrest. Because the pleaded facts
fail to show a violation of the due process and equal protection guarantees of the
Fourteenth Amendment, the first prong of the qualified immunity analysis is
missing.

Therefore, defendants Ross and Jeffcoat are entitled to qualified

immunity with respect to the Fourteenth Amendment due process and equal
protection claims implied in plaintiff’s First and Fourth Claims, but not (at least at
this time) to his illegal arrest claim under the Fourth Amendment.
b. Excessive Force Making the Arrest
Plaintiff’s Third Claim alleges excessive force was used to make the arrest.
Under plaintiff’s own version of the facts, only Officer Jeffcoat was actually
involved physically in plaintiff’s arrest.

The facts alleged in the amended

complaint state that Lt. Ross instructed Officer Jeffcoat to arrest plaintiff, but Ross

16

The court recognizes that it is possible to plead a claim alleging that an arrest was made for a
racially discriminatory reason in violation of the equal protection clause, but that is not what is
pleaded here. Plaintiff has not pleaded that he was arrested for a racially discriminatory reason.
24

was not physically involved in how the arrest was made. 17 For this reason, Lt.
Ross is entitled to qualified immunity as to plaintiff’s Third Claim, but Officer
Jeffcoat is not. While the description of the arrest in the complaint suggests only
de minimis force was used (plaintiff was shoved against his car), a gratuitous use of
force when no force is needed is excessive. See Saunders v. Duke, 766 F.3d 1262,
1267 (11th Cir. 2014). Because plaintiff alleges he was compliant and cooperative,
there was no need for force. Jeffcoat is not entitled to qualified immunity on this
Third Claim.
c. False Imprisonment
Plaintiff’s Fifth Claim alleges an unconstitutional false imprisonment,
expressly under § 1983. This claim requires a showing of both a common law
false imprisonment and a denial of procedural due process. The Eleventh Circuit
has written:

A § 1983 claim of false imprisonment requires a showing of common
law false imprisonment and a due process violation under the
Fourteenth Amendment. See Cannon v. Macon County, 1 F.3d 1558,
1562–63 (11th Cir. 1993), modified on other grounds, 15 F.3d 1022
(1994). The elements of common law false imprisonment are an
intent to confine, an act resulting in confinement, and the victim's
awareness of confinement. See id. at 1562 n. 3. The Fourteenth
Amendment Due Process Clause includes the “right to be free from
continued detention after it was or should have been known that the
17

There is nothing in the facts pleaded in the complaint to suggest that Lt. Ross either knew that
Officer Jeffcoat would use excessive force to make the arrest or that Ross had the opportunity to
intervene to stop the use of excessive force.
25

detainee was entitled to release.” Id. at 1563; West v. Tillman, 496
F.3d 1321, 1327 (11th Cir. 2007) (per curiam).

Campbell v. Johnson, 586 F.3d 835, 840 (11th Cir. 2009). Under the facts pleaded
in the First Amended Complaint, there is little question that Lt. Ross and Officer
Jeffcoat intentionally confined plaintiff, but there are no facts pleaded to show that
they continued his detention after he should have been released. For that reason,
both Ross and Jeffcoat are entitled to qualified immunity on this claim and it will
be dismissed as to these two defendants.
In summary, the motion to dismiss by defendants Ross and Jeffcoat will be
GRANTED as to the plaintiff’s Fourteenth Amendment claims for denial of due
process and equal protection, and as to his Fifth Claim for false imprisonment
under § 1983. The motion to dismiss also will be GRANTED as to defendant Ross
with respect to plaintiff’s Third Claim for excessive force in making the arrest.
The motion to dismiss is DENIED as to plaintiff’s Fourth Amendment claim for an
illegal arrest without probable cause (under both the First and Fourth Claims), as
well as his Third Claim for excessive force against defendant Jeffcoat.
2. State-law claims
Plaintiff has pleaded the same state-law claims against defendants Ross and
Jeffcoat as he pleaded against the City of Homewood, which are the following:
gross negligence (Second Claim); “official misconduct amounting to an abuse of
26

judicial process” (Sixth Claim); tort of outrage (Seventh Claim); slander and false
light (Eighth Claim); malicious abuse of process, false arrest, false imprisonment,
“failure to train,” “violation of constitutional & civil rights,” and slander (Ninth
Claim); assault and battery (Tenth Claim); and failure to supervise and train agents
and employees (Eleventh Claim). In response to these claims, the motion to
dismiss contends that Ross and Jeffcoat are entitled to absolute discretionaryfunction immunity under Alabama Code § 6-5-338 (1975). The Eleventh Circuit
has explained the operation of this state immunity on state-law claims this way:

Under Alabama law, “[s]tate-agent immunity protects state
employees, as agents of the State, in the exercise of their judgment in
executing their work responsibilities.” Ex parte Hayles, 852 So. 2d
117, 122 (Ala. 2002). In Ex parte Cranman, 792 So. 2d 392 (Ala.
2000), a plurality of the Alabama Supreme Court restated and
clarified the scope of Alabama’s state-agent immunity doctrine, which
bars suit against law enforcement officers effecting arrests, except to
the extent the officer acted willfully, maliciously, fraudulently, in bad
faith, beyond his legal authority, or under a mistaken interpretation of
law, or if the Constitution or laws of the United States or Alabama
require otherwise. Id. at 405.
There is also statutory, discretionary-function immunity in Alabama.
Specifically, § 6–5–338 of the Alabama Code contains a provision
immunizing law enforcement officers from tort liability for conduct
within the scope of their discretionary law enforcement duties.
Ala.Code § 6–5–338(a) (1994) ( “Every peace officer ... shall have
immunity from tort liability arising out of his or her conduct in
performance of any discretionary function within the line and scope of
his or her law enforcement duties.”). Cranman's test for state-agent
immunity governs whether law enforcement officers are entitled to
statutory, discretionary-function immunity under § 6–5–338(a). Ex
27

parte City of Tuskegee, 932 So. 2d 895, 904 (Ala.2005) (“The
restatement of State-agent immunity as set out in Cranman, 792
So. 2d at 405, now governs the determination of whether a peace
officer is entitled to immunity under § 6–5–338(a).”)….
The Alabama Supreme Court established a burden-shifting framework
for application of the state-agent immunity test. A defendant initially
bears the burden of demonstrating that he was acting in a function that
would entitle the agent to immunity. Ex parte Estate of Reynolds, 946
So. 2d 450, 452 (Ala. 2006). “If the State agent makes such a
showing, the burden then shifts to the plaintiff to show that the State
agent acted willfully, maliciously, fraudulently, in bad faith, or
beyond his or her authority.” Id.

Brown v. City of Huntsville, Ala., 608 F.3d 724, 740–41 (11th Cir. 2010). In this
case, it is not disputed that Ross and Jeffcoat were acting in a function that would
entitled them to the immunity. Indeed, the plaintiff has affirmatively alleged that
they were acting as duly-sworn police officers for the City of Homewood. The
question then becomes whether the plaintiff has alleged facts from which it can be
plausibly inferred that Ross and Jeffcoat acted “willfully, maliciously,
fraudulently, in bad faith, or beyond [their] authority.”
a. False Arrest, False Imprisonment
Similar to the court’s conclusions regarding plaintiff’s federal claims, the
facts pleaded in the First Amended Complaint are sufficient to survive a motion to
dismiss as to the plaintiff’s false arrest and false imprisonment. Again, plaintiff
has alleged (which must be assumed true at this stage of the case) that he was
28

arrest despite complying with Lt. Ross’s order to leave the scene. Of course, as a
product of his arrest, he was also “confined” for no real legal reason. It can be
inferred from the pleaded facts that Ross and Jeffcoat acted willfully, maliciously,
and in bad faith. Whether plaintiff can establish these facts with evidence remains
to be seen.
b. Assault and Battery
Plaintiff’s state-law assault and battery claim is analogous to his § 1983
claim for use of excessive force by Officer Jeffcoat. Here, he alleges he was
assaulted and battered by Jeffcoat without legal authority because the arrest itself
was unlawful. It is not disputed that Jeffcoat performed the actual physical arrest,
and that Ross was not directly involved in the physical act of the arrest. For the
reasons discussed, the pleaded facts support an inference that Jeffcoat had no
authority to touch plaintiff at all, much less shove him into a car, and that he acted
in bad faith. Jeffcoat’s motion to dismiss this claim will be DENIED at his point,
but Ross’s motion will be GRANTED, as the plaintiff’s own factual allegations
make clear that Ross was not physically involved in plaintiff’s arrest, even if he
directed Jeffcoat to make the arrest.

29

c. Other Claims Due to be Dismissed
Plaintiff’s remaining state-law claims against Ross and Jeffcoat are due to be
dismissed because, for various, reasons, they simply fail to state causes of action
against these two defendants. For example, by plaintiff’s own allegations, neither
Ross nor Jeffcoat signed the complaint that charged him with trespass. While they
were involved in making a warrantless arrest, they were not involved in misusing
any judicial process. “[I]n order to prove the tort of abuse of process, a plaintiff
must prove: “‘“(1) the existence of an ulterior purpose; 2) a wrongful use of
process, and 3) malice.”’” Preskitt v. Lyons, 865 So. 2d 424, 430 (Ala. 2003)
(quoting Willis v. Parker, 814 So. 2d 857, 865 (Ala. 2001), quoting in turn C.C. &
J., Inc. v. Hagood, 711 So. 2d 947, 950 (Ala. 1998)).” Moon v. Pillion, 2 So. 3d
842, 846 (Ala. 2008). At time of the arrest, there was no judicial process relating
to the plaintiff to be used or misused. That came about only later when Roberts
signed a complaint against the plaintiff for trespass. Hence, there simply are no
facts pleaded in the complaint to support the allegation that Ross and Jeffcoat
wrongfully used any judicial process.
The same is true of plaintiff’s slander and false light claims—neither Ross
nor Jeffcoat was involved in publishing a false or misleading statement about
plaintiff. Plaintiff expressly alleges that these claims arise from the posting of his

30

photograph on the City of Homewood social media page after his arrest. There is
no fact pleaded to indicate that Ross or Jeffcoat was involved in that event.
The facts pleaded in support of plaintiff’s tort of outrage claim (also known
as the tort of intentional infliction of emotional distress) against Ross and Jeffcoat
simply fails to show the necessary level of egregiousness required under Alabama
law. To prove the claim, the plaintiff must allege and show “that the defendant's
conduct ‘(1) was intentional or reckless; (2) was extreme and outrageous; and (3)
caused emotional distress so severe that no reasonable person could be expected to
endure it.’ Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38, 44 (Ala.
1990) (citing American Road Service Co. v. Inmon [, 394 So. 2d 361 (Ala.
1980)]).” Little v. Robinson, 72 So. 3d 1168, 1172 (Ala. 2011). Even assuming
that Ross and Jeffcoat acted intentionally or recklessly by arresting the plaintiff,
their arrest was simply not “extreme and outrageous,” nor has the plaintiff alleged
facts supporting and inference that he suffered emotion distress so severe no
reasonable person could be expected to endure it.

This claim is due to be

dismissed as to Ross and Jeffcoat.
Plaintiff’s claim that Ross and Jeffcoat failed to train or supervise their
agents or employees is due to be dismissed because neither owed a duty to the
plaintiff to do so. The claim of negligent failure to train or supervise has been
described this way:
31

A claim of negligent failure to train or supervise requires the
following showing:
“‘“In the master and servant relationship, the master is
held responsible for his servant's incompetency when
notice or knowledge, either actual or presumed, of such
unfitness has been brought to him. Liability depends
upon its being established by affirmative proof that such
incompetency was actually known by the master or that,
had he exercised due and proper diligence, he would
have learned that which would charge him in the law
with such knowledge.”’”
Big B, Inc. v. Cottingham, 634 So.2d 999, 1003 (Ala.1993) (quoting
Lane v. Central Bank of Alabama, N.A., 425 So.2d 1098, 1100
(Ala.1983), quoting Thompson v. Havard, 285 Ala. 718, 723, 235
So.2d 853, 858 (1970)).

Under Alabama law, the duty to properly train and supervise is an incident of the
“master and servant relationship.” It is the master (the employer) who exercises
control over the activities of its servants, and, for that reason, has a duty to train
and supervise its servants in order to avoid injury to others arising from its
servants’ incompetent performance of their master’s work. In this case, there is no
factual allegation that Ross or Jeffcoat was the master responsible for training and
supervision. They were the servants, whose competent performance of their duties
placed upon the City of Homewood the duty to properly train and supervise them.
Thus, this claim cannot be asserted against Ross and Jeffcoat.

32

To the extent plaintiff alleges a claim for gross negligence by Ross and/or
Jeffcoat due to his arrest, discretionary-function immunity under § 6-5-338 bars the
claim.

Because it is undisputed that Ross and Jeffcoat was acting in a law

enforcement capacity that would entitle them to the immunity, the plaintiff must
plead facts from which it can be inferred that that acted “willfully, maliciously,
fraudulently, in bad faith, or beyond [their] authority.” Mere negligence, even
gross negligence, is not enough to overcome the immunity. This claim is due to be
dismissed. 18
Finally, the claim of “violation of constitutional & civil rights” (Ninth
Claim) is nothing more than a redundancy. It does not allege any particular
substantive or procedural right being violated, but simply says plaintiff’s rights (in
general) were violated. It either fails to allege any claim at all or it is vague
repetition of the various other specific claims in the complaint. It is, effectively,
mere surplusage due to be stricken.
In summary, the motion to dismiss filed on behalf of Ross and Jeffcoat will
be GRANTED as to all state-law claims pleaded against them, except the claims
for false arrest and false imprisonment, and the claim of assault and battery against
18

It is not clear that the City of Homewood is entitled to have the gross negligence claim against
it dismissed as well. Although Ala. Code § 6-5-338 provides that the employing municipality is
entitled to claim any immunity that the employee officer may claim, that does not answer in this
case whether some of the claims that cannot be asserted against Ross and Jeffcoat might
nevertheless be viable claims against the City based on the actions of other unnamed employees,
such as, for example, whoever posted the plaintiff’s photograph on social media.
33

Jeffcoat.

The motion to dismiss is DENIED as to false arrest and false

imprisonment claims in the Ninth Claim and as to the assault and battery claim
against Jeffcoat in the Tenth Claim.
C. Claims against Wal-mart and Roberts
Because the plaintiff’s “shotgun” pleading alleges the same claims generally
against all defendants, a careful reading of the complaint is necessary to identify
those claims that have potential viability against Wal-mart and Roberts. Most of
the claims in the First Amended Complaint fail to allege legally cognizable claims
against them.
1. Claims that Do Not Implicate These Defendants
Certain of the claims set out in the complaint simply do not allege facts
implicating either Wal-mart or David Roberts.

For example, the First Claim

alleges a false arrest without probable cause, but by plaintiff’s own factual
allegation, this was carried out by Ross and Jeffcoat alone. There are no facts
pleaded to show that Wal-mart or Roberts participated in or authorized the arrest.19
Likewise, the Third Claim alleges excessive force during the arrest. There is
nothing pleaded to indicate that Wal-mart or Roberts was involved in the arrest
itself. The Fourth and Fifth Claims allege, respectively, an unconstitutional false
19

In his own factual allegations, the plaintiff says he was arrested only after Lt. Ross instructed
him to leave. Clearly, there could be no pre-existing agreement or authorization to arrest
plaintiff as he was arrested only when Lt. Ross became dissatisfied with plaintiff’s effort to leave
as instructed.
34

arrest and an unconstitutional false imprisonment under 42 U.S.C. § 1983, but §
1983 applies only to defendant’s “acting under color of state law.” Flagg Brothers,
Inc. v. Brooks, 436 U.S. 149, 98 S. Ct. 1729, 56 L.Ed.2d 185 (1978). It does not
supply a remedy against private, non-state actors, such as Wal-mart and Roberts.20
Furthermore, plaintiff’s Eighth and Tenth Claims assert, respectively, claims for
slander and assault and battery, but it is clear from his complaint that if these
events occurred, they were due to the actions of Homewood and its employees, not
Wal-mart or Roberts.
Plaintiff’s abuse of process claim, found in the Sixth Claim and part of the
Ninth Claim, fails because the amended complaint contains no factual allegations
that Wal-mart or Roberts misused a judicial process. While the complaint alleges
that Roberts signed a criminal complaint alleging trespass by the plaintiff, there is
20

Plaintiff attempts to argue that Wal-mart and Roberts conspired with Homewood and/or Ross
and Jeffcoat, but he has not pleaded sufficient facts to show a pre-existing agreement among the
defendants to violate his rights. The Eleventh Circuit as explained:
“The plaintiff attempting to prove such a [§ 1983] conspiracy must show that the
parties ‘reached an understanding’ to deny the plaintiff his or her rights. The
conspiratorial acts must impinge upon the federal right; the plaintiff must prove
an actionable wrong to support the conspiracy.” Bendiburg v. Dempsey, 909 F.2d
463, 468 (11th Cir. 1990) (citations omitted). A plaintiff claiming a § 1983
conspiracy must prove the defendants “reached an understanding” to violate the
plaintiff's constitutional rights. Bailey v. Bd. of Cnty. Comm'rs of Alachua Cnty.,
956 F.2d 1112, 1122 (11th Cir. 1992) (“[T]he linchpin for conspiracy is
agreement.”).
Grider v. City of Auburn, Ala., 618 F.3d 1240, 1260 (11th Cir. 2010); see also Rowe v. City of
Fort Lauderdale, 279 F.3d 1271, 1283 (11th Cir. 2002). Absent some evidence of an agreement
between Wal-mart and Roberts on the one hand and the City and/or Ross and Jeffcoat on the
other, § 1983 simply is not applicable to Wal-mart and Roberts as private non-state actors.
35

nothing to indicate that Roberts or Wal-mart misused the resulting arrest warrant or
charge. Abuse of process requires the “misuse” of a judicial process with an
ulterior motive, see Moon v. Pillion, 2 So. 3d 842, 846 (Ala. 2008), and that is not
alleged here. 21 Plaintiff does not plausibly identify what judicial process was
misused, how it was misused, or the ulterior motive for why it was misused.
The court assumes that plaintiff’s Seventh Claim is intended to allege a
claim of outrage against Wal-mart and Roberts. As already discussed above, it
simply fails to allege conduct so extreme or outrageous that it is actionable. It does
not allege that the emotional distress suffered by plaintiff was more than any
reasonable person can be expected to endure. While being charged with criminal
trespass is traumatic, the making of the charge by Wal-mart and/or Roberts is not
so extreme or outrageous that no civilized person could be expected bear being so
charged.
Also, plaintiff’s attempt to allege a claim for negligent failure to train or
supervise agents and employees, as alleged in the Ninth and Eleventh Claims, must
allege the necessary element that an agent or employee of either Wal-mart or
Roberts committed some wrongdoing due to the employee’s incompetence or lack
of training. Indeed:

21

Oddly, despite alleging that Roberts signed the criminal complaint against him, plaintiff does
not allege a malicious prosecution claim.
36

“[I]mplicit in the tort of negligent[, wanton, or intentional] hiring,
retention, training, and supervision is the concept that, as a
consequence of the employee’s incompetence, the employee
committed some sort of act, wrongdoing, or tort that caused the injury
to the plaintiff.” Jones Exp., Inc. v. Jackson, 86 So. 3d 298, 305 (Ala.
2010) (quoting Humana Med. Corp. of Alabama v. Traffanstedt, 597
So. 2d 667, 669 (Ala. 1992))(emphasis in Jones Express). Indeed, [t]o
support a claim of negligent supervision, the plaintiff must
demonstrate that ... the employee committed a tort recognized under
Alabama law.” Edwards v. Hyundai Motor Mfg. Alabama, LLC, 603
F.Supp. 2d 1336, 1357 (M.D.Ala. 2009) (citing Stevenson v. Precision
Standard, Inc., 762 So. 2d 820, 824 (Ala. 1999)); see also Andazola v.
Logan's Roadhouse Inc., 871 F.Supp.2d 1186, 1225 (N.D.Ala. 2012)
(“However, not just any ‘incompetency’ suffices to give rise to a
cause of action for so-called ‘negligent hiring, training, retention, and
supervision liability.’ Rather, there must be an underlying common
law tort recognized by Alabama courts: that is, in order to prevail, the
plaintiff must prove that the allegedly incompetent employee
committed a tortious act.” (citing Stevenson, 762 So. 2d at 824)).

Agee v. Mercedes-Benz U.S. Int'l, Inc., 2013 WL 832354, at *8 (N.D. Ala.
Feb. 28, 2013). Other than alleging that Roberts signed the criminal complaint
against plaintiff,22 the First Amended Complaint nowhere alleges that some

22

Of course, it must be remembered that the plaintiff has not alleged a malicious prosecution
claim in this action, or even the elements of it, as a possible “common-law tort” as part the
negligent failure to train or supervise claim. Likewise, although Roberts was the manager of the
Wal-mart store, he was not the “master” or employer, even if some other employee committed a
common-law tort against the plaintiff. The tort of negligent, wanton, or intentional hiring,
training, or supervision is incident to the master-servant relationship. It is the master, or
employer, who owes the duty to care to others. Co-employees, even supervisory co-employees,
personally owe no common-law duty to others to supervise their subordinates in any particular
way to prevent torts. A supervisor’s duty to supervise competently runs to his master, and if he
fails to do so, resulting in a subordinate’s incompetence causing harm to another, it is the master,
not the supervisory employee, who is responsible in law. Notwithstanding this, there is no
allegation in this case that Roberts’ failure to properly supervise some other Wal-mart employee
caused harm to the plaintiff. According, even if Roberts owed a duty to the plaintiff to supervise
37

employee of Wal-mart committed a common-law tort against the plaintiff due to a
lack of training or supervision by Wal-mart. As to the signing of the criminal
complaint by Roberts, plaintiff has alleged that Roberts signed the trespassing
complaint even though Roberts never personally told plaintiff to leave the Walmart premises or even saw him inside the store. This alleges that Roberts had no
probable cause to charge the trespass. Arguably, Wal-mart failed to train Roberts
about the proper circumstances under which a store manager may charge someone
with trespassing on store premises.

At the this pleading stage, at which the

plaintiff’s allegations of fact must be taken as true, the plaintiff has alleged facts
showing a potential failure to train Roberts as the store manager of the
circumstances under which a manager may sign a trespass complaint on behalf of
Wal-mart. Therefore, while Roberts himself cannot be personally liable for a
negligent failure to train or supervise (and the claim against him will be
dismissed), Wal-mart may be liable if it negligently, wantonly, or intentionally
failed to train Roberts about the circumstances under which a store manager may
sign a criminal trespass complaint against a person on store property.
Finally, as explained above with respect to the assertion of this claim against
the City, Ross, and Jeffcoat, the reference to “violation of constitutional & civil

his subordinates with care, there is no allegation that Roberts’ failure to supervise or train a
subordinate caused harm.
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rights” is redundant surplusage. It alleges nothing new or different from the
specific claims for violation of his rights pleaded elsewhere in the complaint.

Conclusion
To conclude, the court will enter a separate order granting in part and
denying in part the motions to dismiss filed by the defendants, as follows:
1. The motion to dismiss for the City of Homewood is GRANTED IN
PART, and the plaintiff’s claims against the City for abuse of process (Sixth Claim
and part of Ninth Claim) and the tort of outrage (Seventh Claim) are DISMISSED
WITH PREJUDICE; but the motion will be DENIED as to the plaintiff’s federal
claims (First Claim, Third Claim, Fourth Claim, and Fifth Claim) and the statelaw claims for gross negligence, false arrest, false imprisonment, slander/false
light, assault and battery, and negligent failure to train.
2. The motion to dismiss for defendant Ross is GRANTED IN PART as to
the plaintiff’s Third Claim for unconstitutionally excessive force, his First and
Fourth Claims for violations of the Fourteenth Amendment due process and equal
protection clauses during for his arrest, and his Fifth Claim for unconstitutional
false imprisonment, all of which are DISMISSED WITH PREJUDICE as to
defendant Ross. Defendant Ross’s motion also is GRANTED IN PART as to the
plaintiff’s Second Claim for gross negligence; the Sixth Claim for official
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misconduct and abuse of process; the Seventh Claim for the tort of outrage; the
Eighth Claim for slander and false light; those parts of the Ninth Claim for abuse
of process, failure to train, “violation of constitutional & civil rights,” and slander;
the Tenth Claim for assault and battery; and the Eleventh Claim for failure to train
or supervise, all of which are DISMISSED WITH PREJUDICE.
3. The motion to dismiss for defendant Jeffcoat is GRANTED IN PART as
to the plaintiff’s First and Fourth Claims for violations of the Fourteenth
Amendment due process and equal protection clauses during for his arrest, and his
Fifth Claim for unconstitutional false imprisonment, all of which are DISMISSED
WITH PREJUDICE as to defendant Jeffcoat. Defendant Jeffcoat’s motion also is
GRANTED IN PART as to the plaintiff’s Second Claim for gross negligence; the
Sixth Claim for official misconduct and abuse of process; the Seventh Claim for
the tort of outrage; the Eighth Claim for slander and false light; those parts of the
Ninth Claim for abuse of process, failure to train, “violation of constitutional &
civil rights,” and slander; and the Eleventh Claim for failure to train or supervise,
all of which are DISMISSED WITH PREJUDICE.
4. The motion to dismiss for defendant Wal-mart will be GRANTED IN
PART as to all of the plaintiff’s federal-law claims (First Claim—arrest without
probable cause, denial of due process, denial of equal protection; Second Claim—
deliberate indifference to need for training of police officers; Third Claim—
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excessive force; Fourth Claim—unconstitutional arrest without probable cause;
Fifth Claim—unconstitutional false imprisonment), all of which as DISMISSED
WITH PREJUDICE. The motion also will be GRANTED IN PART as to all statelaw claims, except for part of the Ninth Claim and the Eleventh Claim for failure to
train or supervise Roberts with respect signing criminal complaints for trespass.
5. The motion to dismiss for defendant Roberts will be GRANTED and all
claims against him will be DISMISSED WITH PREJUDICE.

For the sake of clarity, the following claims remain pending:
1. Arrest of the plaintiff without probable cause in violation of the Fourth
Amendment against defendants City of Homewood, Ross, and Jeffcoat. (First and
Fourth Claims)
2. Gross negligence against the City of Homewood. (Second Claim)
3. Deliberate indifference to the need for further training of police officers
with respect to making constitutionally proper arrests, against the City of
Homewood. (Second Claim)
4. Use of unconstitutionally excessive force in making an arrest of the
plaintiff, in violation of the Fourth Amendment, against the City of Homewood
and defendant Jeffcoat. (Third Claim)

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5. Negligent slander and false-light invasion of privacy against the City of
Homewood. (Eighth Claim)
6. Common law false arrest and false imprisonment against the City of
Homewood, Ross, and Jeffcoat. (Ninth Claim)
6.

Assault and battery against the City of Homewood and defendant

Jeffcoat. (Tenth Claim)
7. Negligent, wanton, intentional failure to train employees regarding the
proper circumstances under which to sign a criminal complaint for trespass, against
Wal-mart. (Eleventh Claim).
A separate order will be entered.
DONE this 27th day of December, 2016.

_______________________________
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE

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