Morris v. Town of Lexington, Alabama et al

Filing 94

MEMORANDUM OPINION AND ORDER that the court GRANTS in part and DENIES in part the motions to dismiss and the plaintiff is ORDERED to Show Cause in writing by 1/17/2013, why his claims against Anderson Reserve Police Officer Wiggington should not be dismissed for failure to serve and prosecute; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 1/4/2013. (AHI)

FILED
2013 Jan-04 PM 12:35
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
JERRY MORRIS,
Plaintiff,
vs.
TOWN OF LEXINGTON, et al.,
Defendants.

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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 he 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

1

See doc. no. 44 (Second Amended Complaint).

2

Id. ¶¶ 28-29, 36.

3

Id. ¶¶ 47-48.

4

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
This action is before the court upon motions to dismiss various portions of the
second amended complaint by four of the six individual defendants and both of the
municipal defendants.7 Upon consideration, this court will grant the motions to
dismiss in part, and deny the motions in part. Further, this court will order plaintiff
to show cause why his claims against Town of Anderson Reserve Police Officer Matt
Wigginton should not be dismissed for failure to prosecute.
I. LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a
complaint for, among other things, “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). That rule must be read together with Rule 8(a),
which requires that a pleading contain only a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While that
5

Id. ¶¶ 69-89.

6

Id. ¶¶ 51-89.

7

See doc. nos. 48 (Motion to Dismiss by Mark Bowers); 50 (Motion to Dismiss by Town
of Anderson); 56 (Motion to Dismiss by Patrick Davis and James Distefano); 81 (Motion to Dismiss
by Lee Bradford); 89 (Motion to Dismiss by Town of Lexington).

2

pleading standard does not require “detailed factual allegations,” Bell Atlantic Corp.
v. Twombly, 544 U.S. 544, 550 (2007), it does demand “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citations omitted).
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that
is plausible on its face.” [Bell Atlantic Corp., 550 U.S.] at 570. A claim
has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. Id., at 556. The plausibility standard
is not akin to a “probability requirement,” but it asks for more than a
sheer possibility that a defendant has acted unlawfully. Ibid. Where a
complaint pleads facts that are “merely consistent with” a defendant’s
liability, it “stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Id., at 557 (brackets omitted).
Iqbal, 556 U.S. at 678 (alteration supplied).
Even though the Eleventh Circuit long held claims asserted under § 1983
against individual officers to a higher-than-usual standard — see, e.g., GJR
Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359 (11th Cir. 1998)
(observing that “this circuit . . . has tightened the application of Rule 8 with respect
to § 1983 cases in an effort to weed out nonmeritorious claims”) — the Circuit’s
opinion in Randall v. Scott, 610 F.3d 701 (11th Cir. 2010), observes that utilization
of such a heightened pleading standard is no longer warranted, in light of the
plausibility requirement articulated in the Supreme Court’s Iqbal opinion.
3

[Even though] the Iqbal opinion concerns Rule 8(a)(2) pleading
standards in general, the Court specifically describes Rule 8(a)(2)
pleading standards for actions regarding an unconstitutional deprivation
of rights. The defendant federal officials raised the defense of qualified
immunity and moved to dismiss the suit under a 12(b)(6) motion. The
Supreme Court held, citing Twombly, that the legal conclusions in a
complaint must be supported by factual allegations, and that only a
complaint which states a plausible claim for relief shall survive a motion
to dismiss. The Court did not apply a heightened pleading standard.
While Swann [v. Southern Health Partners, Inc., 388 F.3d 834
(11th Cir. 2004)] , GJR, and Danley [v. Allen, 540 F.3d 1298 (11th Cir.
2008)] reaffirm application of a heightened pleading standard for § 1983
cases involving defendants able to assert qualified immunity, we agree
. . . that those cases were effectively overturned by the Iqbal court.
Pleadings for § 1983 cases involving defendants who are able to assert
qualified immunity as a defense shall now be held to comply with the
standards described in Iqbal. A district court considering a motion to
dismiss shall begin by identifying conclusory allegations that are not
entitled to an assumption of truth-legal conclusions must be supported
by factual allegations. The district court should assume, on a
case-by-case basis, that well pleaded factual allegations are true, and
then determine whether they plausibly give rise to an entitlement to
relief.
Randall, 610 F.3d 709-10 (bracketed alterations and emphasis supplied).
II. FACTS AS ALLEGED
As always is the case in the context of ruling upon a motion to dismiss, the
district court is required to assume that
the facts set forth in the plaintiff’s complaint are true. See Anza [v. Ideal
Steel Supply Corp.], 547 U.S. 451, [453 (2006)] (stating that on a motion
to dismiss, the court must “accept as true the factual allegations in the
amended complaint”); Marsh v. Butler County, 268 F.3d 1014, 1023
4

(11th Cir. 2001) (en banc) (setting forth the facts in the case by
“[a]ccepting all well-pleaded factual allegations (with reasonable
inferences drawn favorably to Plaintiffs) in the complaint as true”).
Because we must accept the allegations of plaintiff’s complaint as true,
what we set out in this opinion as “the facts” for Rule 12(b)(6) purposes
may not be the actual facts.
Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1281 n.1 (11th Cir. 2006)
(alterations supplied).
In the early morning hours of April 19, 2009, a highly intoxicated woman who
had been abandoned on plaintiff’s property called 911 to request assistance, saying
that she did not know where she was and had no means of transportation.8 Four of the
six individual defendants initially responded to the call: i.e., Lee Bradford, a police
officer for the Town of Lexington, Alabama;9 Mark Bowers, the police chief for the
Town of Anderson, Alabama; and, Matt Wigginton and Jan Montgomery, both of
whom were “reserve” police officers for the town of Anderson.10
During her 911 telephone call and subsequent conversations with the four
officers, the woman did not make any accusations against plaintiff.11 Instead, she
8

Doc. no. 44 (Second Amended Complaint) ¶ 10. The complaint gives no further clues on
how the woman came to be “abandoned,” or how plaintiff and the officers learned about the
“abandonment.”
9

Lexington is a town in Lauderdale County, Alabama. It is part of the Florence-Muscle
Shoals Metropolitan Statistical Area.
10

Doc. no. 44 (Second Amended Complaint) ¶¶ 4-7, 11. Anderson, like Lexington, is a town
in Lauderdale County, Alabama, and a part of the Florence-Muscle Shoals Metropolitan Statistical
Area.
11

Id. ¶ 12.

5

claimed “vaguely and generally” that she was in danger, and that someone had been
beating plaintiff’s horses.12 While the woman sat on plaintiff’s porch in a chair, the
officers knocked on his door.13
Eventually, plaintiff was awakened by his girlfriend and came to the door.14
When the officers asked about the woman, plaintiff responded that he did not know
her, but that he knew her sister.15 When told of the woman’s statement that
“someone” had been beating his horses, plaintiff expressed concern for the horses and
said that, after he placed some boots on his feet, he would go check on them.16
In the presence and hearing of the other three officers, Lexington Police Officer
Lee Bradford told plaintiff that he was “not going anywhere.”17 Plaintiff was then
standing inside his own home, on his side of the front door threshold.18 Despite
Bradford’s order that he “not go[] anywhere,” plaintiff turned and walked back into
his home, but he did not attempt to close the door.19
Bradford, Anderson Police Chief Mark Bowers, and Anderson Reserve Police

12

Id. ¶ 13.

13

Id. ¶ 14.

14

Doc. no. 44 (Second Amended Complaint) ¶ 15.

15

Id. ¶ 16.

16

Id. ¶ 17.

17

Id. ¶ 18.

18

Id. ¶ 19.

19

Id. ¶ 20.

6

Officer Matt Wigginton followed plaintiff into his home without a warrant and,
allegedly, without either probable cause or any good reason for doing so.20 Plaintiff
objected to the three officers’ presence and repeatedly told them to leave his home,
and to obtain a warrant before coming back.21
Eventually, Anderson Police Chief Mark Bowers and Anderson Reserve Police
Officer Matt Wigginton walked outside, but Lexington Police Officer Lee Bradford
remained, stopping in plaintiff’s doorway and holding the door open.22 Plaintiff told
Bradford that he was going to shut the door, and slowly began to push the door shut,
but Bradford refused to move out of the doorway.23 During the verbal exchange
between plaintiff and Bradford, Bowers and Wigginton remained on the porch.24 At
some point, Bradford shoved plaintiff, and plaintiff punched Bradford one time.25
Defendants James Distefano and Patrick Davis — both of whom were
employed by Lauderdale County as Deputy Sheriffs — had arrived on the scene after
Bradford, Bowers, and Wigginton.26 Distefano and Davis allegedly knew that
Bradford, Bowers, and Wigginton had no legitimate reason for entering plaintiff’s
20

Doc. no. 44 (Second Amended Complaint) ¶¶ 20-21.

21

Id. ¶ 22.

22

Id. ¶ 23.

23

Id. ¶¶ 24-25.

24

Id. ¶ 26.

25

Id. ¶¶ 27-28.

26

Doc. no. 44 (Second Amended Complaint) ¶¶ 8-9, 31.

7

home, and that the three of them had been told by the homeowner to leave his home
and to obtain a warrant.27 Further, Distefano and Davis allegedly saw Bradford refuse
to move out of the entry doorway and then shove plaintiff.28
After plaintiff punched Bradford, he — accompanied by Anderson Police Chief
Mark Bowers, Anderson Reserve Police Officer Matt Wigginton, and Lauderdale
County Deputy Sheriffs James Distefano and Patrick Davis — entered the home, took
plaintiff to the floor, and hit and kicked him.29 During the scuffle, Chief Bowers used
his taser on plaintiff in “drive stun” mode, and did so at least once after plaintiff was
handcuffed and no longer resisting arrest: acts that left numerous burn marks on
plaintiff’s back.30
Eventually, Lexington Police Officer Lee Bradford, Anderson Police Chief
Mark Bowers, Anderson Reserve Police Officer Matt Wigginton, and Lauderdale
County Deputy Sheriffs James Distefano and Patrick Davis handcuffed plaintiff and
removed him from his home.31 After placing plaintiff in a patrol car, Bradford,
Bowers, Wigginton, and Anderson Reserve Police Officer Jan Montgomery searched

27

Id. ¶ 32.

28

Id. ¶ 33.

29

Id. ¶ 36.

30

Id. ¶¶ 37-38.

31

Doc. no. 44 (Second Amended Complaint) ¶ 39.

8

plaintiff’s home and cars.32 It does not appear than any evidence of criminal activity
was found.
A Lauderdale County grand jury issued a “no bill” on the charges against
plaintiff in September of 2009, apparently concluding that the evidence of plaintiff’s
alleged wrongdoing was not convincing.33 The following month, plaintiff filed
notices of claim with the Towns of Anderson and Lexington, and plaintiff’s lawyer
communicated in writing with their insurer.34
Lexington Police Officer Lee Bradford, Anderson Police Chief Mark Bowers,
and Anderson Reserve Police Officers Matt Wigginton and Jan Montgomery then
allegedly “met and agreed to a unified (false) version of events, went to the district
attorney, and convinced the district attorney to resubmit the case to another grand
jury.”35
Defendants’ false version of events allegedly included a general denial of
plaintiff’s allegations; a claim that Lexington Police Officer Lee Bradford, Anderson

32

Id. ¶ 39.

33

Id. ¶ 42. A no bill is “a finding that the specific evidence brought before the particular
Grand Jury did not convince them to formally charge the accused with the offense alleged.” Rachal
v. Quarterman, 265 F. App’x 371, 379 (5th Cir. 2008) (internal citations omitted). The complaint
does not specify the offenses of which plaintiff was accused.
34

Id. ¶ 43. Plaintiff’s second amended complaint alleged that a copy of a claim to Travelers
Insurance Company was attached as Exhibit 1. Id. However, the record does not reflect the filing
of such an exhibit. See docket sheet entry for doc. no. 44.
35

Id. ¶ 44.

9

Police Chief Mark Bowers, and Anderson Reserve Police Officer Matt Wigginton
initially entered plaintiff’s home with consent; a description of plaintiff as intoxicated,
aggressive, and threatening; a claim that plaintiff slammed the door on Bradford
without giving the officer a chance to leave the home; and a claim that Bradford only
acted in self-defense, and never shoved plaintiff after being asked to leave.36
Based upon the foregoing account, the district attorney decided to resubmit the
case to another grand jury.37 On or about November 6, 2009, a Lauderdale County
grand jury returned an indictment against plaintiff for two counts of assault in the
second degree (a felony), and one count of resisting arrest.38 Plaintiff was first tried
in December of 2010, but the trial ended in a “hung jury.”39 Plaintiff was then re-tried
in January of 2011, and was acquitted of all charges.40
Plaintiff alleges that he suffered physical and emotional injuries and damages
as a result of defendants’ conduct, including embarrassment and humiliation.41
Plaintiff also incurred medical and legal bills and other expenses.42

36

Id. ¶ 45.

37

Doc. no. 44 (Second Amended Complaint) ¶ 46.

38

Id. ¶ 47.

39

Id. ¶ 48. A hung jury is a jury that cannot reach a verdict by the required threshold after
an extended period. See generally Brown v. Dugger, 831 F.2d 1547, 1558 (11th Cir. 1987).
40

Doc. no. 44 (Second Amended Complaint) ¶ 48.

41

Id. ¶ 49.

42

Id.

10

III. DISCUSSION
A.

Claims Against the Municipal Defendants
The Supreme Court held in Monell v. Department of Social Services of New

York, 436 U.S. 658 (1978), that a local governmental entity cannot be held vicariously
liable for violations of § 1983 by one of its employees under a theory of respondeat
superior: in other words, “a municipality cannot be held liable solely because it
employs a tortfeasor.” Id. at 691.43 Instead, a municipality or county may be held
accountable in damages for the conduct of a particular governmental actor only when
the plaintiff shows that execution of the local governmental entity’s official “policy”
or “custom” effectively was the cause of the injury complained of. Id. at 694.44 It
does not matter whether the policy was enacted by the local governmental entity’s
43

Respondeat superior is a Latin phrase meaning “let the master answer,” and it often is used
to describe a doctrine imposing liability on one person for the actionable conduct of another, based
solely on a relationship between the two persons; thus, liability in common law tort and contract
actions often may be imputed to employers for the actions of their employees. See generally
BLACK’S LAW DICTIONARY 1313 (7th ed. 1999), defining respondeat superior as: “The doctrine
holding an employer or principal liable for the employee’s or agent’s wrongful acts committed
within the scope of the employment or agency.” See also W. Page Keeton et al., THE LAW OF TORTS
§ 69, at 500 (5th ed. 1984), observing that:
Most courts have made little or no effort to explain the result, and have taken refuge
in rather empty phrases, such as “he who does a thing through another does it
himself,” or the endlessly repeated formula of “respondeat superior,” which in itself
means nothing more than “look to the man higher up.”
44

The Eleventh Circuit has defined a “policy” as “a decision that is officially adopted by the
municipality, or created by an official of such rank that he or she could be said to be acting on behalf
of the municipality.” Id. “A custom is a practice that is so settled and permanent that it takes on the
force of law.” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997) (citing Monell,
436 U.S. at 690-91).

11

“lawmakers or by those whose edicts or acts may fairly be said to represent official
policy.” Id.45
The Supreme Court added a gloss to Monell’s “policy or custom” requirement
in Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), saying that “municipal liability
may be imposed for a single decision by municipal policymakers under appropriate
circumstances.” 475 U.S. at 480 (emphasis supplied). The Eleventh Circuit clarified
Pembaur’s gloss in Morro v. City of Birmingham, 117 F.3d 508 (11th Cir. 1997),
saying that “[m]unicipal liability under 42 U.S.C. § 1983 may be premised upon a
single illegal act by a municipal officer only when the challenged act may fairly be
said to represent official policy, such as when that municipal officer possesses final
policymaking authority over the relevant subject matter.” Id. at 510 (alteration and
emphasis supplied); see also McMillian v. Monroe County, 520 U.S. 781, 784 (1997)
(observing that municipal policies or customs “may be set by the government’s
45

The evolution of modern § 1983 doctrine actually began a decade prior to the Monell
decision, with the case of Monroe v. Pape, 365 U.S. 167 (1961). Monroe opened the sluice to a
“swelling tide of § 1983 actions [which] threaten[ed] to engulf the federal courts . . . .” Thurman
v. Rose, 575 F. Supp. 1488, 1491 (N.D. Ind. 1983) (alterations supplied). Even so, the Supreme
Court attempted to limit the force of its decision in Monroe by holding that the City of Chicago, the
municipal defendant in that case, was not a “person” subject to suit under the statute and, therefore,
could not be held liable for the actions of its officers. Monroe, 365 U.S. at 192. Blanket immunity
for municipalities lasted until the 1978 decision in Monell, when the Court reversed that aspect of
its holding in Monroe, and held that a municipality did qualify as a “person” liable to suit under §
1983. “The Monell . . . decision made any city, county, or local jurisdiction subject to a lawsuit
whenever one of its employees abridged any federal constitutional or statutory command.” Randall
R. Rader, Section 1983, The Civil Civil Rights Action: Legislative and Judicial Directions, 15 CUMB.
L. REV. 571, 580 (1985) (footnote omitted).

12

lawmakers, ‘or by those whose edicts or acts may fairly be said to represent official
policy’”) (quoting Monell, 436 U.S. at 694). Furthermore,
[t]he Eleventh Circuit “has interpreted Monell’s policy or custom
requirement to preclude § 1983 municipal liability for a subordinate
official’s decisions when the final policymaker delegates decisionmaking
discretion to the subordinate, but retains the power to review the exercise
of that discretion. . . . Thus, “[f]inal policymaking authority over a
particular subject area does not vest in an official whose decisions in the
area are subject to meaningful administrative review.”
Quinn v. Monroe County, 330 F.3d 1320, 1325 (11th Cir. 2003) (citations omitted)
(second bracketed alteration in original) (emphasis supplied).
1.

Claims against the Town of Anderson for the actions of defendant
Mark Bowers

The Town of Anderson, Alabama denies liability for the actions of its Police
Chief, Mark Bowers, on the grounds that he is not a “policymaker” under Monell.46
Specifically, the Town of Anderson argues that,
“[u]nder Alabama law, the policymaking authority of a municipality is
vested in the Mayor and the City or Town Council. See § 11-43-81,
Code of Alabama (1989) (“The mayor shall be the chief executive
officer, and shall have general supervision and control of all other
officers and affairs of the city or town . . . .”) (emphasis supplied); §
11-43-43, Code of Alabama (1989) (“All legislative powers and other
powers granted to cities and towns shall be exercised by the council . .
. .”). The Chief of Police of a municipality under Alabama law is
expressly subordinate to the City or Town Council. See § 11-43-5, Code
of Alabama (1989) (“The council may provide for a tax assessor, tax
collector, chief of police and chief of the fire department and shall
46

Doc. no. 51 (Brief in Support of Motion to Dismiss by Town of Anderson), at 9.

13

specifically prescribe their duties.”) (emphasis supplied); see also
Beasley v. McCorkle, 184 So. 904 (Ala. 1938).47
The authorities cited by the Town of Anderson do not, however, resolve the
issue of whether Police Chief Mark Bowers’s law enforcement decisions are subject
to “meaningful administrative review.” See Quinn v. Monroe County, 330 F.3d 1320,
1325 (11th Cir. 2003) (emphasis supplied). In Brown v. City of Fort Lauderdale, 923
F.2d 1474 (11th Cir. 1991), the court reversed an order dismissing the plaintiff’s 42
U.S.C. § 1983 claims for employment discrimination against city officials on the
grounds that its task
is not to determine who, in fact, wields final policy-making authority but
only to consider whether plaintiff has alleged sufficient facts to
withstand the city’s motion to dismiss. Without question, plaintiff’s
allegations against the police chief and city manager leave open the
possibility of city liability based on the actions of a policy-maker. The
district court on remand will need to consider all available evidence of
policy-making authority before deciding the issue of municipal liability.
See Mandel [v. Doe], 888 F.2d [783,] 793 [(11th Cir.1989)] (“The court
should examine not only the relevant positive law, including ordinances,
rules and regulations, but also the relevant customs and practices having
the force of law.”)
Id. at 1480 (alterations and emphasis supplied).
As in Brown, the present plaintiff’s allegations against Police Chief Mark
Bowers “leave open the possibility” that he wielded final policy-making authority on
law enforcement issues. At the stage of a motion to dismiss, the parties have not yet
47

Id. at 9-10 (alteration supplied).

14

had the opportunity to submit evidence on the Town of Anderson’s relevant
ordinances, rules, regulations, customs, and practices. Accordingly, this court will
deny the motion to dismiss the claims against the Town of Anderson based on the
actions of its Police Chief, Mark Bowers.
2.

Claims against the Town of Lexington for the actions of defendant
Lee Bradford

Like the Town of Anderson, the Town of Lexington, Alabama denies liability
for the actions of its Police Officer, Lee Bradford, on the grounds that he is not a
“policymaker” under Monell.48 In response, plaintiff concedes that his complaint
“does not include a Monell claim against the Town of Lexington.”49 Accordingly, this
court will grant the motion to dismiss the claims against the Town of Lexington based
on the actions of defendant Bradford.
3.

Claims under state law against both Towns

The Towns of Anderson and Lexington also argue that plaintiff’s state-law
claims “for a ‘negligent assault and battery’ or ‘negligent trespass’ are not
maintainable. . . . The sole state law claim maintainable in this action against the
Town[s] is a single claim for simple negligence under § 11-47-190, Code of Alabama

48

See generally doc. no. 89 (Motion to Dismiss by Town of Lexington), at 2 (arguing that
“[t]he Second Amended Complaint fails to state a claim under 42 U.S.C. § 1983 against the Town
cognizable under Monell”) (alteration supplied).
49

Doc. no. 91 (Response to Motion to Dismiss by Town of Lexington), at 1.

15

(1975).”50 In response, plaintiff concedes that municipal liability “under state law is
limited to negligence.”51 “This, however, is not a basis for dismissal of the complaint,
only for limiting plaintiff to a single simple negligence claim.”52 Accordingly, this
court will construe plaintiff’s complaint as stating only a single, simple, negligence
claim against each Town.
B.

Claims Against the Individual Defendants
All of the individual defendants interpose as a defense the doctrine of qualified

immunity, which provides “complete protection for governmental officials sued in
their individual capacities as long as ‘their conduct violates no clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
Thomas v. Roberts, 261 F.3d 1160, 1170 (11th Cir. 2001) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).
The purpose of this immunity is to allow government officials to carry
out their discretionary duties without the fear of personal liability or
harassing litigation, see Anderson v. Creighton, 483 U.S. 635, 638, 107
S. Ct. 3034, 3038, 97 L. Ed. 2d 523 (1987), protecting from suit “all but
the plainly incompetent or one who is knowingly violating the federal
law.” Willingham v. Loughnan, 261 F.3d 1178, 1187 (11th Cir. 2001).
Because qualified immunity is a defense not only from liability, but also
50

Doc. nos. 50 (Motion to Dismiss by Town of Anderson), at 2; 89 (Motion to Dismiss by
Town of Lexington), at 2 (alteration supplied). Like many of the briefs in this action, the motions
to dismiss by the Towns of Anderson and Lexington contain virtually indistinguishable language
and make identical points.
51

Doc. no. 62 (Response to Motion to Dismiss by Town of Anderson), at 11.

52

Doc. no. 91 (Response to Motion to Dismiss by Town of Lexington), at 1.

16

from suit, it is “important for a court to ascertain the validity of a
qualified immunity defense as early in the lawsuit as possible.” GJR
Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1370 (11th Cir. 1998)
(citation omitted).
In order to receive qualified immunity, the public official “must
first prove that ‘he was acting within the scope of his discretionary
authority when the allegedly wrongful acts occurred.’” Courson v.
McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991) (quoting Rich v.
Dollar, 841 F.2d 1558, 1563 (11th Cir. 1988)). If the defendant was not
acting within his discretionary authority, he is ineligible for the benefit
of qualified immunity . . . .
Lee v. Ferraro, 284 F.3d 1188, 1193-94 (11th Cir. 2002); see also, e.g., Chesser v.
Sparks, 248 F.3d 1117, 1121-22 (11th Cir. 2001); Lassiter v. Alabama A & M
University Board of Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994) (en banc).
When a law enforcement officer establishes that he was acting within his
discretionary authority in performing a contested act, “the burden shifts to the plaintiff
to show that qualified immunity is not appropriate.” Lee, 284 F.3d at 1194; see also,
e.g., Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997) (“Once an officer or
official has raised the defense of qualified immunity, the burden of persuasion as to
that issue is on the plaintiff.”) (citing Suissa v. Fulton County, 74 F.3d 266, 269 (11th
Cir. 1996); Barnette v. Folmar, 64 F.3d 598, 600 (11th Cir. 1995); Lassiter, 28 F.3d
at 1150 n. 3).
Qualified immunity “generally turns on the ‘objective legal reasonableness’ of

17

the [allegedly unlawful official] action . . . assessed in light of the legal rules that were
‘clearly established’ at the time [the action] was taken . . . .” Anderson, 483 U.S. at
639 (quoting Harlow, 457 U.S. at 819, 818) (alterations supplied). Once the qualified
immunity defense is raised, it is the plaintiff who “bear[s] the burden of showing that
the federal ‘rights’ allegedly violated were ‘clearly established.’” Lassiter, 28 F.3d
at 1150 n.3 (quoting Barts v. Joyner, 865 F.2d 1187, 1190 (11th Cir. 1989) (alteration
supplied)); see also Mitchell v. Forsyth, 472 U.S. 511, 528 (1985)); Busby, 931 F.2d
at 773 (“The plaintiff has the burden of showing that the defendant violated clearly
established constitutional rights.”).
Taking the allegations in the plaintiff’s complaint as true, “[i]f reasonable
people could disagree about whether a [police officer] — in the light of the then
clearly established law — responded reasonably to the complaint’s alleged
circumstances, qualified immunity must apply: the [police officer] has responded in
an arguably reasonable way.” Marsh, 268 F.3d at 1030 n.8 (alterations supplied).
For a court to conclude that — in the light of the clearly
established law at the pertinent time — a hypothetical jury, considering
all the complaint’s alleged facts as true, could decide that the defendant
responded unreasonably is not sufficient to overcome the qualified
immunity defense raised in a Rule 12(b)(6) motion. This formulation is
nothing more than saying that reasonable people might or might not
think — this is, could disagree about whether — the government actor
behaved unreasonably. It is this kind of situation — that is, one where
the alleged facts (accepted as true) leave the legal consequences
18

uncertain — for which the defense of qualified immunity was designed.
Id. (emphasis supplied).
1.

Claims for unlawful entry against Lexington Police Officer Lee
Bradford, Anderson Police Chief Mark Bowers, Lauderdale County
Deputy Sheriffs James Distefano and Patrick Davis, and the Town
of Anderson
a.

Entry to effectuate a Terry stop by Lexington Police Officer
Lee Bradford and Anderson Police Chief Mark Bowers

In order for officers to legally make an investigative stop, they must have
“reasonable suspicion” of criminal activity. Terry v. Ohio, 392 U.S. 1, 37 (1968).
“[F]rom the moment that the reasonable suspicion standard was first announced, the
Supreme Court recognized that an investigatory stop [or “Terry stop”] may involve
the use of some degree of force by the investigating officer.” United States v. Rouse,
No. 409-004, 2009 WL 1550860, at * 4 (S.D. Ga. June 1, 2009) (alterations supplied).
In light of Terry, “when a suspect voluntarily opens the door of his residence
in response to a non-coercive ‘knock and talk’ request, the police may temporarily
seize the suspect outside the home (or at the threshold) provided that they have
reasonable suspicion of criminal activity.” United States v. Crapser, 472 F.3d 1141,
1148 (9th Cir. 2007). “[A] suspect may not defeat an arrest which has been set in
motion in a public place . . . by the expedient of escaping to a private place.” United
States v. Santana, 427 U.S. 38, 43 (1976) (alteration supplied).
19

When Lexington Police Officer Lee Bradford and Anderson Police Chief Mark
Bowers responded to the 911 telephone call, they did not have “a reasonable
suspicion” of criminal activity on the part of plaintiff that would have justified their
warrantless entry into his home to effectuate a Terry stop. In the brief in support of
his motion to dismiss, Chief Bowers attempts to establish “reasonable suspicion” by
arguing that plaintiff “was asked about the [911 telephone caller] and allegedly
responded, suspiciously, ‘that he did not know the woman, though he did know her
sister.’”53 In an unrelated section of the brief, Bowers also asserts that he
had just received and responded to a 911 call from a distressed woman;
when he arrived at plaintiff’s porch where she was located, she alleged
vaguely and generally that she was in danger, and plaintiff was the only
one around. When plaintiff was confronted with these allegations, he
admitted at least knowing who she was but acted more concerned about
horses than a human, [and] said he was leaving the location where he and
the officers were.54
In their joint reply brief, Chief Bowers and the Town of Anderson contend that
“the complaint . . . alleges that the woman outright told the officers that she was
‘abandoned’ on plaintiff’s porch — as though she had been kidnapped and then
53

Doc. no. 49 (Brief in Support of Motion to Dismiss by Mark Bowers), at 5 (quoting doc.
no. 44 (Second Amended Complaint) ¶ 16) (alteration supplied). Because the motion to dismiss by
Bradford incorporates by reference the motions to dismiss by Bowers and the Town of Anderson,
this discussion will largely rely on Bowers’ motion. See doc. no. 81 (Motion to Dismiss by Lee
Bradford), at 4 (incorporating by reference the motions to dismiss by Bowers and the Town of
Anderson).
54

Doc. no. 49 (Brief in Support of Motion to Dismiss by Mark Bowers), at 20 (alteration
supplied).

20

dumped there,” and that plaintiff was himself suspected of the horse abuse.55 In their
joint notice of supplemental authority, those defendants also claim that “plaintiff did
not immediately answer the door when the officers knocked, thereby giving the
officers additional, legitimate concerns for their safety and the safety of the woman
on the porch.”56
Several of defendants’ arguments rest on troubling factual liberties with the
construction of plaintiff’s complaint. For example, Chief Bowers argues that, when
the officers answered the 911 call, “plaintiff was the only one around.”57 The
complaint alleges, however, that the caller was found outside plaintiff’s house,58 while
plaintiff was inside his home, and was awakened by his girlfriend.59 Bowers also
asserts that “the complaint . . . alleges that the woman outright told the officers that
she was ‘abandoned’ on plaintiff’s porch — as though she had been kidnapped and
then dumped there.”60 Upon review, the complaint alleges merely that the woman
“had been abandoned,”61 without stating how or by whom she came to be abandoned,
55

Doc. no. 64 (Reply in Support of Motion to Dismiss by Mark Bowers and Town of
Anderson), at 3-4.
56

Doc. no. 73 (Notice of Supplemental Authority in Support of Motion to Dismiss by Mark
Bowers and Town of Anderson), at 4.
57

Doc. no. 49 (Brief in Support of Motion to Dismiss by Mark Bowers), at 20.

58

Doc. no. 44 (Second Amended Complaint) ¶ 11.

59

Id. ¶ 15.

60

Doc. no. 49 (Brief in Support of Motion to Dismiss by Mark Bowers), at 3-4.

61

Doc. no. 44 (Second Amended Complaint) ¶ 10 (emphasis supplied).

21

without indicating how the officers learned that she had been abandoned, and certainly
without asserting that she told the officers that she had been abandoned, or that she
made any reference to a kidnapping.
Other attempts to establish probable cause are simply not convincing. For
example, Chief Bowers and the Town of Anderson contend that plaintiff’s failure to
“immediately answer the door when the officers knocked . . . [gave them] legitimate
concerns for their safety and the safety of the woman on the porch.”62

There is

nothing inherently threatening about the failure to immediately answer one’s door in
the early hours of the morning, when the instant events occurred, and when most
people are asleep.63 Further, Bowers claims that, when the officers questioned
plaintiff about the woman, he “responded, suspiciously, ‘that he did not know the
woman, though he did know her sister.’”64 Again, there is nothing inherently
suspicious about such a statement. To the extent that defendants are arguing that
suspicion arises not from what plaintiff did and said, but from how he did and said it,
they are either asking this court to assume facts that have not been alleged in the
complaint, or to construe the facts that have been alleged in their favor. Both
62

Doc. no. 73 (Notice of Supplemental Authority in Support of Motion to Dismiss by Mark
Bowers and Town of Anderson), at 4 (alteration and emphasis supplied).
63

See doc. no. 44 (Second Amended Complaint) ¶ 10 (alleging the events at issue to have
occurred “[i]n the early morning hours”) (alteration supplied).
64

Doc. no. 49 (Brief in Support of Motion to Dismiss by Mark Bowers), at 5 (quoting doc.
no. 44 (Second Amended Complaint) ¶ 16) (emphasis supplied).

22

approaches are barred by the requirement that a district court ruling upon a motion to
dismiss must draw all reasonable inferences in plaintiff’s favor. See Marsh v. Butler
County, 268 F.3d 1014, 1023 (11th Cir. 2001) (en banc).
Other arguments for probable cause are internally inconsistent. In the brief in
support of his motion to dismiss, Chief Bowers submits a statement of facts that
relegates all references to the alleged horse abuse to the footnotes,65 and states without
support that plaintiff was informed of the alleged horse abuse and “acted more
concerned about horses than a human.”66 In their reply brief, however, Bowers and
the Town of Anderson argue that plaintiff was himself suspected of the horse abuse.67
In addition to the fact that the assertion that plaintiff “acted more concerned about
horses than a human” is not supported by the allegations in the complaint, and
represents another effort to construe the facts against plaintiff and in favor of
defendants in violation of Marsh, 268 F.3d at 1023, it appears to contradict the
argument that plaintiff was himself suspected of the horse abuse — a shift in position
that suggests an attempt to establish reasonable suspicion through hindsight.
Accordingly, this court is left with the following facts as an alleged basis for
probable cause: Lexington Police Officer Lee Bradford, Anderson Police Chief Mark
65

See doc. no. 49 (Brief in Support of Motion to Dismiss by Mark Bowers), at 3 n.1-2.

66

Id. at 20.

67

Doc. no. 64 (Reply in Support of Motion to Dismiss by Mark Bowers and Town of
Anderson), at 3.

23

Bowers, and Anderson Reserve Police Officers Matt Wigginton and Jan Montgomery
“received and responded to a 911 call from a distressed woman”; when the four
officers arrived outside plaintiff’s home, where the distressed woman was located,
“she alleged vaguely and generally that she was in danger,” and that someone had
been beating plaintiff’s horses; when plaintiff was confronted with her allegations, he
admitted knowing the woman’s sister; and, when plaintiff was informed of the
woman’s allegations of animal abuse, he “said he was leaving the location where he
and the officers were” to check on his horses.68 This court also notes that the woman
was highly intoxicated,69 and that she did not make any accusations against plaintiff,70
in spite of the fact that she was sitting on his porch while he was questioned by
police.71 Because the “whole picture” does not give rise to a reasonable suspicion to
justify a Terry stop,72 or even an arguably reasonable suspicion to trigger qualified
immunity, this court will deny the motions to dismiss the unlawful entry claims
against Lexington Police Officer Lee Bradford, Anderson Police Chief Mark Bowers,
and the Town of Anderson, but only to the extent that they arise from Bradford and
68

Doc. no. 49 (Brief in Support of Motion to Dismiss by Mark Bowers), at 3, 20.

69

Doc. no. 44 (Second Amended Complaint) ¶ 10.

70

Id. ¶ 12.

71

Id. ¶ 14.

72

See United States v. Cortez, 449 U.S. 411, 417 (1981) (holding that, in assessing the
existence of probable cause for making a Terry stop, “the totality of the circumstances — the whole
picture — must be taken into account”).

24

Bowers’ entry to effectuate the Terry stop.
b.

Entry to stop the confrontation between plaintiff and
Lexington Police Officer Lee Bradford by Anderson Police
Chief Mark Bowers, and Lauderdale County Deputy Sheriffs
James Distefano and Patrick Davis

The Eleventh Circuit has recognized that the Fourth Amendment is not
absolute.
Although there is a strong preference for searches and entries conducted
under the judicial auspices of a warrant, the United States Supreme Court
has crafted a few carefully drawn exceptions to the warrant requirement
to cover situations where “the public interest requires some flexibility in
the application of the general rule that a valid warrant is a prerequisite
for a search.” Arkansas v. Sanders, 442 U.S. 753, 759, 99 S. Ct. 2586,
2590, 61 L. Ed. 2d 235 (1979). One such exception is that the police
may enter a private premises and conduct a search if “exigent
circumstances” mandate immediate action. See Michigan v. Tyler, 436
U.S. 499, 509, 98 S. Ct. 1942, 1949-50, 56 L. Ed. 2d 486 (1978).
United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002).
The “exigent circumstances” exception to the warrant requirement
“encompasses several situations where it is simply not feasible for an officer to obtain
a warrant, including the danger of escape, the destruction of evidence, the risk of harm
to the public or police, the mobility of a vehicle, and hot pursuit.” United States v.
McGough, 412 F.3d 1232, 1238 (11th Cir. 2005) (emphasis supplied). “Thus, for
example, the courts have upheld exigent circumstances entries to break up a violent
fight.” McClish v. Nugent, 483 F.3d 1231, 1240 (11th Cir. 2007). See also, e.g.,
25

Brigham City v. Stuart, 547 U.S. 398, 406 (2006) (permitting a warrantless entry after
officers observed a “fracas” occurring inside the residence, during which a juvenile
struck an adult in the face).
When Anderson Police Chief Mark Bowers and Lauderdale County Deputy
Sheriffs James Distefano and Patrick Davis observed plaintiff punch Lexington Police
Officer Lee Bradford,73 that “exigency” justified their warrantless entry into plaintiff’s
house to stop the fracas. The allegations that Bradford illegally entered plaintiff’s
home,74 that he refused to leave the doorway,75 and that he shoved plaintiff before
plaintiff punched Bradford76 — even if true — do not disprove the existence of a “risk
of harm to police” after plaintiff punched Bradford. Accordingly, this court will grant
the motions to dismiss the unlawful entry claim against Lauderdale County Deputy
Sheriffs James Distefano and Patrick Davis. This court will also grant the motions to
dismiss the unlawful entry claims against Anderson Police Chief Mark Bowers and
the Town of Anderson, but only to the extent that they arise from Bowers’ entry to
stop the fight between plaintiff and Bradford.
2.

Claims for illegal arrest and imprisonment against Lexington Police

73

See doc. no. 44 (Second Amended Complaint) ¶ 28 (admitting that plaintiff “punched
Bradford a single time”).
74

Id. ¶ 21.

75

Id. ¶ 23.

76

Id. ¶ 27.

26

Officer Lee Bradford, Anderson Police Chief Mark Bowers,
Lauderdale County Deputy Sheriffs James Distefano and Patrick
Davis, and the Town of Anderson
a.

Federal-law claims for illegal seizure against Lexington Police
Officer Lee Bradford, Anderson Police Chief Mark Bowers,
Lauderdale County Deputy Sheriffs James Distefano and
Patrick Davis, and the Town of Anderson

Thirty years ago, the Eleventh Circuit held that
[t]he common law recognized the right of a citizen to use
reasonable force to resist an unlawful arrest. E.g., Bad Elk v. United
States, [177 U.S. 529 (1900)]. The common-law rule, however, has been
greatly eviscerated, if not virtually abolished, in this circuit. United
States v. Danehy, 680 F.2d 1311, 1315-16 (11th Cir. 1982).
United States v. Bailey, 691 F.2d 1009, 1018 (11th Cir. 1982). While a rule allowing
the use of reasonable force to resist an unlawful arrest
might have been an essential counterweight to oppressive authority in an
earlier day, our civilized society could not abide it. We do not need
citizen avengers who are authorized to respond to unlawful police
conduct by gunning down the offending officers. Other remedies are
available for those police actions that are based on unreasonable
suspicions or technically defective warrants.
United States v. Johnson, 542 F.2d 230, 233 (5th Cir. 1976) (footnotes omitted).77
Therefore, under federal law, “a defendant’s response to even an invalid arrest or
Terry stop may constitute independent grounds for arrest.” United States v. Dawdy,

77

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the
close of business on September 30, 1981.

27

46 F.3d 1427, 1431 (8th Cir. 1995).
Even so, Alabama Code § 13A-3-25(a) provides that a person
in lawful possession or control of premises, as defined in Section
13A-3-20, or a person who is licensed or privileged to be thereon, may
use physical force upon another person when and to the extent that he
reasonably believes it necessary to prevent or terminate what he
reasonably believes to be the commission or attempted commission of
a criminal trespass by the other person in or upon such premises.
Likewise, the commentary to Alabama Code § 13A-3-28 “allows a person to use
reasonable force to resist an unlawful arrest.” Commentary to Ala. Code 1975, §
13A-3-28 at 71. Thus, in contrast to federal law, Alabama law allows a person to use
reasonable force to defend his property or, arguably, although not explicitly stated, to
resist an unlawful arrest.
Despite the apparent conflict between federal and state law, district courts in
Alabama have recognized the applicability of Alabama Code § 13A-3-28 to Fourth
Amendment claims. See Galloway v. City of Abbeville, No. 11-663, 2012 U.S. Dist.
LEXIS 90974, *18 (M.D. Ala. July 2, 2012) (denying a motion to dismiss a Fourth
Amendment excessive force claim); Exford v. Norgard, No. 10-1071, 2012 U.S. Dist.
LEXIS 120104, *25 (M.D. Ala. Aug. 24, 2012) (denying a motion for summary
judgment on a Fourth Amendment unlawful arrest claim). In denying the motion to
dismiss, the Galloway court reasoned that,

28

while an officer has the power to use a reasonable amount of force in
making a lawful arrest or investigatory stop, Graham [v. Connor], 490
U.S. [386,] 396 [1989)] (citing Terry v. Ohio, 392 U.S. 1, 22-27, 88 S.
Ct. 1868, 20 L. Ed. 2d 889 (1968)), an Alabamian has the reciprocal
right to use force in resisting an unlawful arrest. See, e.g., Sanders v.
State, 181 Ala. 35, 61 So. 336 (Ala. 1913) (“an attempt unlawfully to
arrest gives the person sought to be arrested a right to resist”). Since the
officers lacked a reason to arrest Galloway under the facts alleged, he
actually would have had some leeway to resist once they attacked him
and began beating him. So even assuming Galloway resisted in some
manner after the attack began, he had a right to do so.
Galloway, 2012 U.S. Dist. LEXIS 90974, at *17-18 (alterations and emphasis
supplied).
Because Lexington Police Officer Lee Bradford, Anderson Police Chief Mark
Bowers, and Anderson Reserve Police Officer Matt Wigginton lacked even arguable
probable cause to justify their warrantless entry into plaintiff’s home, they also lacked
even arguable probable cause to use force to effectuate their warrantless entry, which
entitled plaintiff to “some leeway” to resist. Plaintiff objected to the officers’
presence in his home, and told them repeatedly to leave and to obtain a warrant before
returning.78 Rather than complying, Bradford stopped in plaintiff’s doorway and held
the door open. Plaintiff told Bradford that he was going to shut the door and slowly
began to push the door shut.79 Bradford responded by shoving plaintiff, and plaintiff,

78

Doc. no. 44 (Second Amended Complaint) ¶ 22.

79

Id. ¶¶ 23-25.

29

in turn, punched Bradford.80 Thus, even though plaintiff resisted Bradford’s use of
force, he had a right to do so. Accordingly, this court will deny the motions to dismiss
the federal-law illegal seizure claims against Lexington Police Officer Lee Bradford,
Anderson Police Chief Mark Bowers, Lauderdale County Deputy Sheriffs James
Distefano and Patrick Davis, and the Town of Anderson based on a theory of the
officers’ personal participation.
b.

Federal-law claims for failure to intervene to prevent illegal
seizure against Lauderdale County Deputy Sheriffs James
Distefano and Patrick Davis

Lauderdale County Deputy Sheriffs James Distefano and Patrick Davis have
moved to dismiss plaintiff’s illegal seizure claim to the extent that it relies on their
failure to intervene.81 In response, plaintiff concedes that he “does not seek to hold
[Distefano and Davis] liable as observing officers who failed to act.”82 Accordingly,
this court will grant the motions to dismiss the illegal seizure claims against
Lauderdale County Deputy Sheriffs James Distefano and Patrick Davis based on a
theory of their failure to intervene.
c.

80

State-law claims for false arrest and imprisonment against
Lexington Police Officer Lee Bradford, Anderson Police Chief

Id.¶¶ 27-28.

81

See doc. no. 57 (Brief in Support of Motion to Dismiss by Patrick Davis and James
Distefano), at 12-13.
82

Doc. no. 61 (Response to Motion to Dismiss by Patrick Davis and James Distefano)
(alteration supplied).

30

Mark Bowers, and the Town of Anderson
Under Alabama law, the torts of false imprisonment and arrest
have different elements. See Walker v. City of Huntsville, 62 So.3d 474,
492 (Ala. 2010) (explaining that Alabama Code § 6-5-170 “defines false
imprisonment as ‘the unlawful detention of the person of another for any
length of time whereby he is deprived of his personal liberty’”); see also
Higgins v. Wal-Mart Stores, Inc., 512 So.2d 766 (Ala. 1987) (“in a cause
of action for false arrest, a plaintiff must prove that the defendant caused
him to be arrested without probable cause”), overruled on other grounds,
Drill Parts & Serv. Co. v. Joy Mfg. Co., 619 So.2d 1280 (Ala. 1993).
Griffin v. Beasley, No. 12-196, 2012 U.S. Dist. LEXIS 84271, *15 (M.D. Ala. June
19, 2012). As explained in the discussion of plaintiff’s illegal seizure claims, supra,
because Lexington Police Officer Lee Bradford, Anderson Police Chief Mark Bowers,
and Anderson Reserve Police Officer Matt Wigginton lacked even arguable probable
cause to justify their warrantless entry into plaintiff’s home, they also lacked arguable
probable cause to use force to effectuate their warrantless entry, which entitled
plaintiff to resist under Alabama law. Accordingly, this court will deny the motions
to dismiss the state-law false arrest and imprisonment claims against Lexington Police
Officer Lee Bradford, Anderson Police Chief Mark Bowers, and the Town of
Anderson.
3.

Claims for failure to intervene to prevent the use of excessive force
against Lexington Police Officer Lee Bradford, Anderson Police
Chief Mark Bowers, and the Town of Anderson

31

Lexington Police Officer Lee Bradford, Anderson Police Chief Mark Bowers,
and the Town of Anderson have moved to dismiss plaintiff’s excessive force claims
to the extent that they rely on their failure to intervene.83 In response, plaintiff
concedes that he “does not seek to hold Bowers liable as an observing officer who
failed to act,”84 and that he “incorporates his response” to the motions to dismiss by
Bowers and the Town of Anderson into his response to the motion to dismiss by
Bradford.85 Accordingly, this court will grant the motions to dismiss the excessive
force claims against Lexington Police Officer Lee Bradford, Anderson Police Chief
Mark Bowers, and the Town of Anderson based on a theory of the officers’ failure to
intervene.
4.

Claims for malicious and retaliatory prosecution against Lexington
Police Officer Lee Bradford, Anderson Police Chief Mark Bowers,
and the Town of Anderson
a.

Federal-law claims for malicious prosecution against
Lexington Police Officer Lee Bradford, Anderson Police Chief
Mark Bowers, and the Town of Anderson

83

See doc. nos. 48 (Motion to Dismiss by Mark Bowers), at 2-3; 50 (Motion to Dismiss by
Town of Anderson), at 1-2; 81 (Motion to Dismiss by Lee Bradford), at 3. In contrast, Davis and
Distefano have not moved to dismiss, and have instead filed an answer to the claim for failure to
intervene to prevent excessive force. See doc. no. 57 (Brief in Support of Motion to Dismiss by
Patrick Davis and James Distefano) (stating that “[a]n Answer has been contemporaneously filed
herewith for Count VI of the Second Amended Complaint, which alleges excessive force”)
(alteration supplied).
84

Doc. no. 62 (Response to Motion to Dismiss by Mark Bowers and Town of Anderson), at

85

Doc. no. 88 (Response to Motion to Dismiss by Lee Bradford), at 1.

18.

32

To establish a § 1983 malicious prosecution claim, the plaintiff must prove two
things:
(1) the elements of the common law tort of malicious prosecution; and
(2) a violation of his Fourth Amendment right to be free from
unreasonable seizures. Kingsland v. City of Miami, 382 F.3d 1220, 1234
(11th Cir. 2004); Wood [v. Kesler], 323 F.3d [872,] 881 [(11th Cir.
2003)]. As to the first prong, the constituent elements of the common
law tort of malicious prosecution are: “(1) a criminal prosecution
instituted or continued by the present defendant; (2) with malice and
without probable cause; (3) that terminated in the plaintiff accused’s
favor; and (4) caused damage to the plaintiff accused.” Wood 323 F.3d
at 882.86
Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2003) (alterations supplied).
Here, plaintiff has established the first prong of a § 1983 malicious prosecution
claim by alleging that Lexington Police Officer Lee Bradford, Anderson Police Chief
Mark Bowers, and Anderson Reserve Police Officers Matt Wigginton and Jan
Montgomery conspired to punish him for filing notices of claim against their
employers by lying to a district attorney about the incident, which resulted in
plaintiff’s two criminal trials and eventual acquittal.
Specifically, after a grand jury issued a “no bill” on the charges against him,

86

In a footnote, the Grider court notes that, “‘[w]hen malicious prosecution is brought as a
federal constitutional tort, the outcome of the case does not hinge on state law, but federal law, and
does not differ depending on the tort law of a particular state.’” Grider v. City of Auburn, 618 F.3d
1240, 1256 n.24 (11th Cir. 2010) (quoting Wood v. Kesler, 323 F.3d 872, 882 n.17 (11th Cir.
2003)).

33

plaintiff filed notices of claim with the Towns of Anderson and Lexington.87 In
retaliation for plaintiff’s notices of claim, defendants allegedly “met and agreed to a
unified (false) version of events, went to the district attorney, and convinced the
district attorney to resubmit the case to another grand jury.”88
In turn, the new grand jury returned an indictment against plaintiff for two
counts of assault in the second degree (a felony), and one count of resisting arrest.89
Plaintiff was first tried in December of 2010, but the trial ended in a “hung jury.”90
Plaintiff was then re-tried in January of 2011, and was acquitted of all charges.91 As
a result, plaintiff has incurred legal bills and expenses, and suffered emotional injuries
and damages, including embarrassment and humiliation.92
Further, plaintiff has established the second prong of a § 1983 malicious
prosecution claim by showing that his arrest violated the Fourth Amendment. As
explained in the discussion of plaintiff’s illegal seizure claims, supra, because
defendants lacked even arguable probable cause to justify their warrantless entry into
87

Doc. no. 44 (Second Amended Complaint) ¶¶ 42-43.

88

Id. ¶ 44. Defendants’ false version of events allegedly included: a general denial of
plaintiff’s allegations; a claim that defendants initially entered plaintiff’s home with consent; a
description of plaintiff as intoxicated, aggressive, and threatening; a claim that plaintiff slammed
the door on Bradford without giving the officer a chance to leave; and a claim that Bradford only
acted in self-defense, and never shoved plaintiff. Id. ¶ 45.
89

Id. ¶ 47.

90

Id. ¶ 48.

91

Id.

92

Id. ¶ 49.

34

plaintiff’s home, they also lacked even arguable probable cause to use force to
effectuate their warrantless entry, which entitled plaintiff to resist under Alabama law.
Because plaintiff has established both prongs of a § 1983 malicious prosecution
claim, this court will deny the motions to dismiss the federal-law malicious
prosecution claims against Lexington Police Officer Lee Bradford, Anderson Police
Chief Mark Bowers, and the Town of Anderson.
b.

Federal-law claims for retaliatory prosecution against
defendants Lexington Police Officer Lee Bradford, Anderson
Police Chief Mark Bowers, and the Town of Anderson

“[T]here is no retaliation claim under the Fourth Amendment separate and
distinct from . . . malicious prosecution and false arrest claims” under that amendment.
Wood v. Kesler, 323 F.3d 872, 883 (11th Cir. 2003) (alteration emphasis supplied).
Thus, “the only cause of action for retaliation that arguably applies here is retaliatory
prosecution in violation of the First Amendment.” Id. (emphasis supplied). “[T]he
First Amendment prohibits government officials from subjecting an individual to
retaliatory actions, including criminal prosecutions, for speaking out.” Hartman v.
Moore, 547 U.S. 250, 256 (2006).
Constitutional claims for retaliation are generally analyzed under a three-part
test

that

requires

a

plaintiff

must

prove

“(1)

that

he

engaged

in

constitutionally-protected activity; (2) that the government responded with retaliation;
35

and (3) that the protected activity caused the retaliation.” Eichenlaub v. Township of
Indiana, 385 F.3d 274, 282 (3d Cir. 2004). A plaintiff who claims retaliatory
prosecution must also establish a fourth element: i.e., an absence of probable cause.
Hartman, 547 U.S. at 265-66.
Here, defendants argue that plaintiff cannot prove the first element of a claim
for retaliatory protection because his speech did not involve a matter of public concern
and, thus, did not deserve constitutional protection.93 In support, defendants cite
Holbrook v. City of Alpharetta, 112 F.3d 1522 (11th Cir. 1997), and other employment
cases, for the proposition that no public concern was implicated where “‘[t]he notice
solely complains of Holbrook’s personal grievance with respect to his alleged
treatment by the City of Alpharetta; it does not refer to any practice or course of
conduct by the police department,” and “does not seek redress beyond improving
Holbrook’s personal . . . situation.”94 In response, plaintiff correctly argues that
defendants’ cases are limited to the employment context.95
In Stone v. Felsman, No. 3:10-0442, 2011 U.S. Dist. LEXIS 125909 (M.D. Pa.

93

Doc. no. 49 (Brief in Support of Motion to Dismiss by Mark Bowers), at 33-35.

94

Id. at 34; doc. no. 64 (Reply in Support of Motion to Dismiss by Mark Bowers and Town
of Anderson), at 16 (both quoting Holbrook, 112 F.3d at 1530). In fact, the Holbrook court held that
the plaintiff’s complaint “does not seek redress beyond improving Holbrook’s personal employment
situation.” Id. at 1530 (emphasis supplied). It is telling that defendants use ellipses to remove the
all-important term “employment.”
95

Doc. no. 62 (Response to Motion to Dismiss by Town of Anderson), at 19.

36

Nov. 1, 2011), a plaintiff sued two police officers to challenge his arrest. Id. at *5.
In denying the officers’ motion for summary judgment on plaintiff’s claim for
retaliatory prosecution, the court squarely faced the issue of whether the standard for
constitutionally-protected speech in retaliation cases involving government employees
also extends to retaliation cases involving private citizens, and held that it does not.
The defendants urge the court to find that they are entitled to
summary judgment on plaintiff’s First Amendment retaliation claim
because the plaintiff cannot establish that he engaged in any conduct or
protected speech by the First Amendment. More specifically, the
defendants argue that the plaintiff’s speech did not relate to a matter of
public concern, and, therefore, the plaintiff’s speech was not protected
by the First Amendment.
The court finds that the defendants’ argument is misplaced. It
appears that the defendants are relying on the standard applicable to a
plaintiff, who is a public employee, bringing a First Amendment
retaliation claim. Under that circumstance, a public employee’s speech
is protected activity if “the statement involved a matter of public
concern.” See Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d
Cir. 2006). However, when a First Amendment retaliation claim is
brought by a private citizen, the individual’s speech need not be on a
matter of public concern in order to constitute protected activity. See
Williams v. Town of Greenburgh, 535 F.3d 71, 77 (2d Cir. 2008)
(“Because Williams was not a public employee when he criticized Bland,
his speech need not have been on a matter of public concern for it to fall
within the protection of the First Amendment for the purposes of this
action.”). Thus, as explained above, a private citizen’s speech is entitled
to First Amendment protection unless it falls into one of the “narrow
categories deemed unworthy of full First Amendment protection.”
Eichenlaub [v. Township of Indiana], 385 F.3d [274,] 282-83 [(3d Cir.
2004)].
Stone, 2011 U.S. Dist. LEXIS 125909, at *24-25 (alterations and emphasis supplied).
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Upon holding that plaintiff’s speech did not have to involve a matter of public
concern, the Stone court decided the issue of whether that speech merited First
Amendment protection.
According to the plaintiff, the relevant speech was his ongoing cell
phone conversation regarding personal matters, and his subsequent
exchange with defendant [Officer] Shutkufski after his cell phone broke.
More specifically, plaintiff indicates that after defendant [Officer]
Shutkufski knocked the cell phone out of his hand, he stated “why did
you hit me” and “they broke my fucking phone.”
With respect to plaintiff’s comments “why did you hit me” and
“they broke my fucking phone,” the court finds that the plaintiff’s speech
is entitled to First Amendment protection.
Stone, 2011 U.S. Dist. LEXIS at *25-26 (alterations supplied).
In light of Stone, the plaintiff in this case has established the “protected speech”
prong of his retaliatory prosecution claim. Defendants do not argue that plaintiff’s
claims against the Towns of Anderson and Lexington fall into one of the “narrow
categories” of unprotected speech, which include, e.g., obscenity, “fighting words,”
and libel. See Eichenlaub, 385 F.3d at 282-83. Indeed, if even the offhand and
profane remarks of “why did you hit me” and “they broke my fucking phone” are
considered protected speech, then plaintiff’s formal notices of claims are plainly
entitled to constitutional protection.
Likewise, plaintiff has established the remaining elements of retaliatory

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prosecution. As explained in the section on malicious prosecution, supra, plaintiff
alleges that Lexington Police Officer Lee Bradford, Anderson Police Chief Mark
Bowers, and Anderson Reserve Police Officers Matt Wigginton and Jan Montgomery
conspired to punish him for filing notices of claim against their employers by lying
to a district attorney about the incident, which resulted in plaintiff’s criminal trial and
acquittal.96 Further, Bradford, Bowers, and Wigginton lacked even arguable probable
cause to justify their warrantless entry into plaintiff’s home, and also lacked even
arguable probable cause to use force to effectuate their warrantless entry, which
entitled plaintiff to resist under Alabama law. Accordingly, this court will deny the
motions to dismiss the federal-law malicious prosecution claims against Lexington
Police Officer Lee Bradford, Anderson Police Chief Mark Bowers, and the Town of
Anderson.
c.

State-law claims for malicious prosecution against Lexington
Police Officer Lee Bradford and Anderson Police Chief Mark
Bowers

As noted in the discussion of plaintiff’s federal-law malicious prosecution
claim, supra, a § 1983 malicious prosecution claim requires a showing of:
(1) the elements of the common law tort of malicious prosecution; and
(2) a violation of his Fourth Amendment right to be free from
unreasonable seizures. Kingsland v. City of Miami, 382 F.3d 1220, 1234
(11th Cir. 2004); Wood [v. Kesler], 323 F.3d [872,] 881 [(11th Cir.
96

See doc. no. 44 (Second Amended Complaint) ¶¶ 42-43.

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2003)]. As to the first prong, the constituent elements of the common
law tort of malicious prosecution are: “(1) a criminal prosecution
instituted or continued by the present defendant; (2) with malice and
without probable cause; (3) that terminated in the plaintiff accused’s
favor; and (4) caused damage to the plaintiff accused.” Wood 323 F.3d
at 882.97 The elements under Alabama law for the common-law tort of
malicious prosecution are the same, except that they require only a
“judicial proceeding” not a “criminal prosecution.” Delchamps, Inc.
v. Bryant, 738 So. 2d 824, 831-32 (Ala. 1999).
Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. Ala. 2010) (alterations and
emphasis supplied). As plaintiff has established the elements of malicious prosecution
under § 1983, he has also established the elements of malicious prosecution under
Alabama law. Accordingly, this court will deny the motions to dismiss the state-law
malicious prosecution claims against Lexington Police Officer Lee Bradford and
Anderson Police Chief Mark Bowers.
5.

Claims against Anderson Reserve Police Officer Matt
Wigginton

Plaintiff filed his original complaint on March 28, 2011, naming Matt
Wigginton as one of the defendants.98 Plaintiff’s summons to Wigginton was returned

97

In a footnote, the Grider court notes that, “‘[w]hen malicious prosecution is brought as a
federal constitutional tort, the outcome of the case does not hinge on state law, but federal law, and
does not differ depending on the tort law of a particular state.’” Grider v. City of Auburn, 618 F.3d
1240, 1256 n.24 (11th Cir. 2010) (quoting Wood v. Kesler, 323 F.3d 872, 882 n.17 (11th Cir.
2003)).
98

See doc. no. 1 (Complaint).

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unexecuted on April 18, 2011.99 Plaintiff filed his first amended complaint on June
3, 2011, and his second amended complaint on July 22, 2011, again naming
Wigginton as one of the defendants.100 Upon a review of the record, it appears to this
court that plaintiff has not made any more attempts to effect service on Wigginton,
who, in turn, has not filed an answer or otherwise entered an appearance.
In sum, plaintiff has not effected service on Wigginton, despite the passage of
more than 120 days since the filing of all three versions of his complaint. Federal
Rule of Civil Procedure 4(m) provides that,
[i]f a defendant is not served within 120 days after the complaint
is filed, the court — on motion or on its own after notice to the plaintiff
— must dismiss the action without prejudice against that defendant or
order that service be made within a specified time. But if the plaintiff
shows good cause for the failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m) (alteration supplied). Accordingly, this court will order plaintiff
to show cause, in writing, on or before January 17, 2013, why his claims against
Anderson Reserve Police Officer Matt Wigginton should not be dismissed for failure
to serve and prosecute.
IV. CONCLUSION AND ORDER

99

See doc. no. 7 (Summons Returned Unexecuted). As an explanation for the fact that the
summons was not executed, the docket entry states, “Return to Sender[,] no such number[,] unable
to forward.” See docket sheet entry for doc. no. 7 (alterations supplied).
100

See doc. nos. 25 (First Amended Complaint); 44 (Second Amended Complaint).

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With regard to the two municipal defendants, this court DENIES the motion to
dismiss the claims against the Town of Anderson for the actions of its Police Chief,
Mark Bowers, GRANTS the motion to dismiss the claims against the Town of
Lexington for the actions of its Police Officer, Lee Bradford, and construes plaintiff’s
complaint as stating only a single, simple, negligence claim against each Town.
With regard to the four individual defendants who filed motions to dismiss, this
court GRANTS the motions to dismiss the unlawful entry claims against Lauderdale
County Deputy Sheriffs James Distefano and Patrick Davis; DENIES the motions to
dismiss the unlawful entry claims against Lexington Police Officer Lee Bradford,
Anderson Police Chief Mark Bowers, and the Town of Anderson, to the extent that
they arise from Bradford and Bowers’ entry to effectuate the Terry stop; and
GRANTS the motions to dismiss the unlawful entry claims against Bowers and the
Town of Anderson, to the extent that they arise from Bowers’ entry to stop the fracas
between plaintiff and Bradford.
Further, the court DENIES the motions to dismiss the federal-law illegal seizure
claims against Lexington Police Officer Lee Bradford, Anderson Police Chief Mark
Bowers, Lauderdale County Deputy Sheriffs James Distefano and Patrick Davis, and
the Town of Anderson based on a theory of the officers’ personal participation;
GRANTS the motions to dismiss the federal-law illegal seizure claims against
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Distefano and Davis based on a theory of their failure to intervene; and DENIES the
motions to dismiss the state-law false arrest and imprisonment claims against
Bradford, Bowers, and the Town of Anderson.
Additionally, the court GRANTS the motions to dismiss the excessive force
claims against Lexington Police Officer Lee Bradford, Anderson Police Chief Mark
Bowers, and the Town of Anderson based on a theory of the officers’ failure to
intervene.
The court also DENIES the motions to dismiss the state- and federal-law
malicious and retaliatory prosecution claims against Lexington Police Officer Lee
Bradford, Anderson Police Chief Mark Bowers, and the Town of Anderson.
The court does not address the viability of plaintiff’s claims against the two
defendants who have not filed motions to dismiss, Anderson Reserve Police Officer
Matt Wigginton and Jan Montgomery.
Finally, this court ORDERS plaintiff to show cause, in writing, on or before
January 17, 2013, why his claims against Anderson Reserve Police Officer Matt
Wigginton should not be dismissed for failure to serve and prosecute.
DONE and ORDERED this 4th day of January, 2013.

______________________________
United States District Judge
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