Morris v. Town of Lexington, Alabama et al
MEMORANDUM OPINION AND ORDER that the motions by Town of Anderson PoliceChief Mark Bowers and Town of Lexington Police Officer Lee Bradford to stay allproceedings in this action pending the disposition of their interlocutory appeals by the Eleventh Circuit are GRANTED and all proceedings are STAYED until further order of the court as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 2/13/2013. (AHI)
2013 Feb-13 PM 03:58
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
TOWN OF LEXINGTON, et al.,
Civil Action No. CV-11-S-1106-NW
MEMORANDUM OPINION AND ORDER
Plaintiff, Jerry Morris, accuses six municipal law enforcement officers of
violating his federal- and state-law rights while investigating a 911 telephone call.1
During the course of the investigation, plaintiff was arrested for punching an officer
who refused to leave his home.2 As a result of the incident, plaintiff was indicted by
a state-court grand jury on two counts of assault in the second degree and one count
of resisting arrest, but was subsequently acquitted in a criminal trial.3
Plaintiff asserts claims under the United States Constitution through the
remedial vehicle of 42 U.S.C. § 1983 for unlawful entry, illegal seizure, unlawful
search, malicious prosecution, and excessive force.4 In addition, plaintiff asserts
See doc. no. 44 (Second Amended Complaint).
Id. ¶¶ 28-29, 36.
Id. ¶¶ 47-48.
Id. ¶¶ 51-68.
supplemental state-law claims for false arrest/false imprisonment, assault and
battery/excessive force, trespass (entry), trespass (search), negligence, wantonness,
and malicious prosecution.5 See 28 U.S.C. § 1367. Plaintiff seeks relief against the
individual officers and their municipal employers.6
Four of the six individual defendants and both of the municipal defendants,
including Town of Anderson Police Chief Mark Bowers and Town of Lexington
Police Officer Lee Bradford, moved to dismiss plaintiff’s second amended
complaint.7 In an order entered on January 4, 2013, this court granted the motions in
part, and denied the motions in part.8 Chief Bowers and Officer Bradford have each
appealed the denial of their motions to dismiss on the basis of qualified immunity.9
This action is before the court on motions by Anderson Police Chief Bowers
and Lexington Police Officer Bradford to stay all proceedings in this action pending
the disposition of their interlocutory appeals by the Eleventh Circuit.10 Upon
Id. ¶¶ 69-89.
Id. ¶¶ 51-89.
See doc. no. 48 (Motion to Dismiss by Mark Bowers); doc. no. 50 (Motion to Dismiss by
Town of Anderson); doc. no. 56 (Motion to Dismiss by Patrick Davis and James Distefano); doc.
no. 81 (Motion to Dismiss by Lee Bradford); doc. no. 89 (Motion to Dismiss by Town of Lexington).
See doc. no. 94 (Memorandum Opinion and Order).
See doc. no. 103 (Notice of Interlocutory Appeal by Mark Bowers); doc. no. 107 (Notice
of Interlocutory Appeal by Lee Bradford).
See doc. no. 104 (Motion to Stay by Mark Bowers); doc. no. 111 (Motion to Stay by Lee
consideration, this court will grant the motions.
Title 28, United States Code, Section § 1291 provides that:
The courts of appeals (other than the United States Court of
Appeals for the Federal Circuit) shall have jurisdiction of appeals from
all final decisions of the district courts of the United States, the United
States District Court for the District of the Canal Zone, the District
Court of Guam, and the District Court of the Virgin Islands, except
where a direct review may be had in the Supreme Court. The
jurisdiction of the United States Court of Appeals for the Federal Circuit
shall be limited to the jurisdiction described in sections 1292(c) and (d)
and 1295 of this title [28 USCS §§ 1292(c) and (d) and 1295].
28 U.S.C. § 1291 (alteration in original) (emphasis supplied). An order denying a
motion to dismiss that was based upon the doctrine of qualified immunity is
immediately appealable under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S.
511, 530 (1985). Upon receiving notice of such an appeal, the trial court should stay
proceedings, unless the appeal is frivolous or has been forfeited. See, e.g., Blinco v.
Green Tree Servicing, LLC, 366 F.3d 1249, 1251 (11th Cir. 2004); Apostol v. Gallion,
870 F.2d 1335, 1339 (7th Cir. 1989). The Seventh Circuit held that:
The justification for the interlocutory appeal [from an order denying
qualified immunity] is that the trial destroys rights created by the
immunity . . . . It makes no sense for trial to go forward while the court
of appeals cogitates on whether there should be one . . . . It follows that
a proper...appeal divests the district court of jurisdiction (that is,
authority) to require the appealing defendants to appear for trial.
Apostol, 870 F.2d at 1338 (alteration supplied); see also Langley v. Adams County,
987 F.2d 1473, 1477 (10th Cir. 1993); Chuman v. Wright, 960 F.2d 104 (9th Cir.
1992); Yates v. City of Cleveland, 941 F.2d 444, 448-49 (6th Cir. 1991).
Although the Apostol court did not provide a list of circumstances that render
an appeal improper, it noted that an appeal may be frivolous if “the district judge has
not finally resolved the question of immunity,” or if “the disposition is so plainly
correct that nothing can be said on the other side.” Id. at 1339. Further, an appeal
may be forfeited if the appellants “wait too long after the denial of [qualified
immunity], or if they use claims of immunity in a manipulative fashion.” Id.
(alteration supplied). The Eleventh Circuit has approvingly cited the Apostol decision
as authority for the proposition that:
The defense of sovereign or qualified immunity protects
government officials not only from having to stand trial, but from
having to bear the burdens attendant to litigation, including pretrial
discovery. See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806,
2815, 86 L.Ed. 2d 411 (1985) (“The entitlement is an immunity from suit
rather than a mere defense to liability; and like an absolute immunity, it
is effectively lost if a case is erroneously permitted to go to trial.”);
Elliot v. Perez, 751 F.2d 1472, 1478 (5th Cir. 1985) (“[S]ubjecting
officials to trial, traditional discovery, or both concerning acts for which
they are likely immune undercuts the protection from government
disruption which official immunity is supposed to afford.”). A district
court, therefore, properly stays discovery pending appeal of a denial of
immunity. See Goshtasby [v. University of Illinois, 123 F.3d 427, 428
(7th Cir. 1997)]; Apostol, 870 F.2d at 1339; Workman v. Jordan, 958
F.2d 332, 336 (10th Cir. 1992); Summit Medical Assoc., P.C. v. James,
998 F. Supp. 1339, 1342-43 (M.D. Ala. 1998). Then, “[e]ither the court
of appeals or the district court may declare that the appeal is frivolous,
and if it is the District Court may carry on with the case. Otherwise,
preparation for trial must be suspended until the court of appeals renders
a decision.” Bradford v. Scott Data Corp., 128 F.3d at 506.
Blinco, 366 F.3d at 1252 (emphasis in original) (alteration to Goshtasby citation
supplied) (all other alterations in original). Although the Blinco opinion did not
define the term “frivolous,” a district court noted that an appeal from a denial of
qualified immunity may be frivolous “where the claim of immunity is a sham and
asserted solely for the purpose of delay.” Summit Medical Associates, P.C. v. James,
998 F. Supp. 1339, 1342 (M.D. Ala. 1998).
Here, plaintiff argues that defendants’ appeals “are frivolous because they do
not accept the allegations in the complaint and ignore clearly-established law.”11 In
denying their motions to dismiss, this court necessarily rejected the arguments by
Anderson Police Chief Mark Bowers and Lexington Police Officer Lee Bradford in
favor of qualified immunity. However, the fact that this court held defendants’
arguments to be wrong does not necessarily indicate that the arguments are frivolous.
See generally Oxford Asset Management v. Jaharis, 297 F.3d 1182, 1195 (11th Cir.
Doc. no. 110 (Response to Motion to Stay by Mark Bowers), at 1. Although plaintiff has
not had a chance to respond to the motion to stay filed by Lexington Police Officer Lee Bradford,
that motion is a request to join in the motion to stay filed by Anderson Police Chief Mark Bowers,
and to adopt and incorporate by reference the “grounds, authorities, argument and all other matters
contained or referenced in defendant Bowers’ [sic] motion.” Id. at 111. Accordingly, this court will
treat plaintiff’s response to Bowers’s motion as a response to both motions.
2002) (holding that an “argument, though ultimately rejected, was not frivolous”);
Castro v. Melchor, 760 F. Supp. 2d 970, 1002 (D. Haw. 2011) (holding that “[t]his
Court stands by its ruling...that Defendant Bauman is not entitled to qualified
immunity. . . . This Court, however, cannot find that Defendant Bauman’s claim of
qualified immunity is frivolous.”) (alteration supplied).
As in Castro, this court stands by its decision on the qualified immunity
question. However, this court cannot conclude that the disposition of that question
“is so plainly correct that nothing can be said on the other side.” Apostol, 870 F.2d
at 1339 (emphasis supplied). Stated differently, there is no evidence that “the claim
of immunity is a sham and asserted solely for the purpose of delay.” Summit, 998 F.
Supp. at 1342. Accordingly, the court will stay these proceedings for the pendency
of defendants’ interlocutory appeals.
For the reasons explained above, the motions by Town of Anderson Police
Chief Mark Bowers and Town of Lexington Police Officer Lee Bradford to stay all
proceedings in this action pending the disposition of their interlocutory appeals by
the Eleventh Circuit are GRANTED. All proceedings are STAYED until further
order of the court.
DONE and ORDERED this 13th day of February, 2013.
United States District Judge
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