Scott et al v. Palmer et al

Filing 54

MEMORANDUM OPINION AND ORDER - For the reasons discussed above, the Court GRANTS Sergeant Palmers motion for summary judgment with respect to Mr. Scotts claims for false arrest and malicious prosecution under 42 U.S.C. § 1983 and Alabama law, an d with respect to Mrs. Scotts claim for outrage under Alabama law. These claims are DISMISSED WITH PREJUDICE. The Court DENIES Sergeant Palmers motion for summary judgment with respect to Mr. Scotts claims for excessive force under 42 U.S.C. § 1983 and assault and battery under Alabama law. Signed by Judge Madeline Hughes Haikala on 9/27/2016. (KEK)

FILED
2016 Sep-27 AM 10:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
James Steven Scott, et al.,
Plaintiffs,
v.
Officer Kyle Palmer, et al.,
Defendants.

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Case No.: 3:14-cv-01034-MHH

MEMORANDUM OPINION AND ORDER
Plaintiff James Scott alleges that defendant Sergeant Kyle Palmer violated his
rights under the Fourth Amendment and Alabama law when Sergeant Palmer arrested
him in a church parking lot. (Doc. 1, pp. 7–9). Plaintiff Carolyn Scott also asserts a
claim against Sergeant Palmer under Alabama law. (Doc. 1, ¶ 6.7). Pursuant to Rule
56 of the Federal Rules of Civil Procedure, Sergeant Palmer has asked the Court to
enter judgment in his favor on the Scotts’ claims. (Doc. 41). For the reasons stated
below, the Court grants in part and denies in part the motion for summary judgment.
I.

SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). To demonstrate that there is a genuine dispute
as to a material fact that precludes summary judgment, a party opposing a motion for
1

summary judgment must cite “to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). “The court
need consider only the cited materials, but it may consider other materials in the
record.” Fed. R. Civ. P. 56(c)(3).
When considering a summary judgment motion, the Court must view the
evidence in the record in the light most favorable to the non-moving party and draw
reasonable inferences in favor of the non-moving party. White v. Beltram Edge Tool
Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015). Accordingly, the Court presents
the facts in this opinion in the light most favorable to Mr. and Mrs. Scott. See White,
789 F.3d at 1191; see also Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252
(11th Cir. 2013) (“[W]hen conflicts arise between the facts evidenced by the parties,
[courts] must credit the nonmoving party’s version.”).
II.

FACTUAL BACKGROUND
The incident that gave rise to the Scotts’ claims took place as Mr. and Mrs.

Scott were leaving a service at their church. (Doc. 38-1, pp. 68, 124). 1 Sergeant
Palmer visited the church to investigate a call concerning a missing child. The mother
of the child had called the Red Bay Police Department (RBPD) earlier in the day to

1

Citations to depositions in the record refer to the page numbers of the respective deposition
transcripts rather than the corresponding CM/ECF page numbers.
2

report her 7-year-old daughter missing, and Sergeant Palmer was one of the law
enforcement officers assigned to the case. (Doc. 42, p. 2; Doc. 38-26, ¶ 5).
Soon after the RBPD received the call about the missing child, officers went to
the child’s home to investigate the call. (Doc. 42, p. 2–4; Doc. 38-16, ¶¶ 3–4). The
child’s father told one of the officers that his daughter may have gone to Hurricane
Creek Missionary Baptist Church with neighbors. (Doc. 42, p. 4; Doc. 38-16, ¶¶ 5–6).
Hurricane Creek Missionary Baptist Church sits approximately three miles outside of
the Red Bay city limits and a mile and a half outside of the jurisdiction of the RBPD,
but both the church and the City of Red Bay are located in Franklin County. (Doc. 42,
p. 4; Doc. 38-4, pp. 38–39).

Because no Franklin County sheriff’s deputy was

immediately available to visit the church, RBPD Chief Janna Jackson directed
defendant Sergeant Kyle Palmer to go there to look for the missing child. (Doc. 42, p.
5; Doc. 38-16, ¶ 6).
When Sergeant Palmer arrived at the church, a service had just ended. (Doc.
42, p. 6; Doc. 38-3, p. 34). Congregation members were either exiting the church or
lingering nearby in conversation. (Doc. 42, p. 6; Doc. 38-3, p. 34). Sergeant Palmer
approached the missing girl’s neighbor, who identified the girl and confirmed that the
child had indeed accompanied her and her husband to that evening’s service. (Doc.
38-1, pp. 71–72; Doc. 38-5, p. 26; Doc. 42, p. 7). Having located the child, Sergeant
Palmer returned to his patrol vehicle to radio the good news. (Doc. 42, p. 8; Doc. 383, p. 41). The child’s neighbors joined him a few minutes later. (Doc. 42, p. 8; Doc.
3

38-3, pp. 41–42, 47). Standing near his vehicle, Sergeant Palmer and the neighbors
made arrangements to return the child to her family. (Doc. 42, p. 10; Doc. 38-3, pp.
48–49). According to one of the neighbors who gave a statement to the investigating
sheriff following these events, Sergeant Palmer told her that “everything was ok.”
(Doc. 38-17, p. 11).
Meanwhile, Mr. Scott was walking from the church’s fellowship hall to his
vehicle to stow some of his wife’s belongings. (Doc. 42, p. 11; Doc. 38-2, p. 47).
When he was done, Mr. Scott approached a friend, who told Mr. Scott that Sergeant
Palmer was present at the church. (Doc. 42, p. 11; 38-2, pp. 47–48). As a church
deacon, Mr. Scott felt it was his duty to determine why Sergeant Palmer was there.
(Doc. 42, p. 12; Doc. 38-1, p. 82).
Mr. Scott walked toward Sergeant Palmer and the child’s neighbors, stopped
approximately three feet from Sergeant Palmer, and asked, “[w]hat’s going on?” 2
(Doc. 38-2, pp. 72–73). Sergeant Palmer stated that he had things under control and
the best thing for Mr. Scott to do was “[g]et back up yonder and shut up.” (Doc. 38-2,
p. 73). Mr. Scott asked, “[a]re you not a little out of your jurisdiction?” (Doc. 38-2,
p. 74). Sergeant Palmer replied, “I go anywhere I want to go.” (Doc. 38-2, p. 74).
2

The parties dispute exactly where Mr. Scott was when he first addressed Sergeant Palmer.
Sergeant Palmer testified that Mr. Scott stepped between him and the child’s neighbors while
they were speaking. (Doc. 38-3, p. 54). Mr. Scott testified that the neighbors were ten to twelve
feet away from Sergeant Palmer and that he did not step between them. (Doc. 38-2, pp. 68–69).
Because the Court is reviewing Sergeant Palmer’s motion for summary judgment, the Court
“construe[s] the facts in the light most favorable to Plaintiffs and accept[s] the statements of” Mr.
and Mrs. Scott. Carter v. Butts County, 821 F.3d 1310, 1316 n. 3 (11th Cir. 2016); see supra, p.
2.
4

Mr. Scott then remarked, “[y]eah, but this is Franklin County. We got a county
sheriff that, you know, works this part of the county.” (Doc. 38-2, pp. 74–75).
The situation escalated when Sergeant Palmer stepped toward Mr. Scott and
shoved him with two hands, causing Mr. Scott to move backwards. (Doc. 38-2, p.
75). Mr. Scott stepped back toward Sergeant Palmer and repeated, “[y]eah, but you’re
– this is Franklin County, and we got county law down here.” (Doc. 38-2, pp. 75–76).
Sergeant Palmer responded by telling Mr. Scott that he was under arrest. (Doc. 38-2,
pp. 76). Sergeant Palmer placed one of Mr. Scott’s arms in handcuffs. (Doc. 38-2,
pp. 76; see also Doc. 38-1, p. 91). Mr. Scott asked Sergeant Palmer to loosen the cuff
because it was too tight. (Doc. 38-2, pp. 83–85). Sergeant Palmer responded by
kicking Mr. Scott’s legs out from under him and pinning Mr. Scott face-down on the
ground. (Doc. 38-2, pp. 83–85).
While on the ground, Sergeant Palmer repeatedly struck Mr. Scott in the back
with his knees and pushed Mr. Scott’s head down while he attempted to cuff Mr.
Scott’s free arm. (Doc. 38-2, p. 86; Doc. 38-11, p. 76; Doc. 38-12, p. 41–42). Mrs.
Scott testified that Sergeant Palmer was sitting on him with his knee in Mr. Scott’s
back and a hand on Mr. Scott’s head, “pressing his face in the dirt.” (Doc. 38-1, pp.
91, 98). 3 Sergeant Palmer contends that Mr. Scott refused to be handcuffed, but Mr.

3

Sergeant Palmer denies that he pushed Mr. Scott’s head into the ground and that he kicked Mr.
Scott’s legs from under him. (Doc. 38-3, p. 70). He testified that Mr. Scott pulled away when he
was handcuffed and this caused Sergeant Palmer to lose his balance and fall to the ground with
Mr. Scott. (Doc. 38-3, p. 66; Doc. 42, p. 31). The Court assumes the truth of Mr. Scott’s
testimony for purposes of this opinion. See supra, p. 2 and n. 2.
5

Scott maintains that he was unable to cooperate because his arm was pinned beneath
him. (Doc. 38-3, p. 67; Doc. 38-2, p. 90). Mrs. Scott confirmed that Mr. Scott’s left
arm was “buried up underneath” him. (Doc. 38-1, p. 92). She explained that Mr.
Scott “was laying on his arm, and then Sergeant Palmer was on top of him.” (Doc.
38-1, p. 92). She heard her husband say to Sergeant Palmer, “I’m not resisting. I just
can’t breathe.” (Doc. 38-1, p. 91). 4
During the struggle, which was witnessed by approximately twenty members of
the congregation, Sergeant Palmer pulled his gun and pointed it toward the
congregants who had gathered, and Sergeant Palmer threatened to use his Taser on
both Mr. and Mrs. Scott. (Doc. 38-1, pp. 93, 96, 102, 108; Doc. 38-2, p. 126; Doc.
38-17, pp. 8-11). Mrs. Scott testified that Sergeant Palmer “kept saying, ‘I’m going to
tase you. I’m going to tase you.’” (Doc. 38-1, p. 93). The record indicates that none
of the congregants had a weapon. (Doc. 38-1, p. 124). According to Mrs. Scott, she
was trying to make Sergeant Palmer aware of Mr. Scott’s health conditions. Mrs.
Scott stated:
I was telling Sergeant Palmer about Steve’s health condition. I was
explaining that he had COPD. He had emphysema. He had had back
surgery. He had also had a stomach surgery back just a few months
prior to that. And I was trying to get him off of him.

4

In a sworn declaration prepared for purposes of this litigation, Deputy Sheriff Holcombe stated
that he told Mr. Scott while Mr. Scott was on the ground that he had to give Sergeant Palmer his
left arm so that Sergeant Palmer could finish cuffing him, but Mr. Scott refused to cooperate.
(Doc. 38-17, p. 3). Again, the Court views the evidence in the light most favorable to Mr. Scott,
but the Court mentions this declaration to illustrate that the evidence regarding Mr. Scott’s
conduct is disputed.
6

(Doc. 38-1, p. 95; see also Doc. 38-1, p. 101–02). After a few minutes on the ground,
Sergeant Palmer successfully handcuffed Mr. Scott and allowed him to stand. (Doc.
38-2, p. 115; Doc. 38-11, p. 76).
Mr. Scott was helped to his feet by a few spectators, including Franklin County
Sheriff’s Deputy Clint Holcombe, who had arrived while Mr. Scott and Sergeant
Palmer were on the ground. (Doc. 38-1, p. 105; Doc. 38-2, p. 109; Doc. 38-3, p. 77).
Deputy Holcombe removed the cuff from Mr. Scott’s right arm. (Doc. 38-2, p. 109).
Someone from the congregation retrieved a chair from the church and brought it
outside so that Mr. Scott could sit down. (Doc. 38-2, p. 110). Mrs. Scott testified that
her husband’s face was bleeding and his right wrist was “bleeding profusely” from the
handcuff. (Doc. 38-1, p. 98). 5 He had a knot on his right wrist and a knot on his
elbow. (Doc. 38-1, p. 111). Shortly thereafter, an ambulance arrived and took Mr.
Scott to the hospital. (Doc. 38-2, p. 113; Doc. 38-1, p. 112; Doc. 42, p. 21).
The next day, Mr. Scott’s regular physician observed abrasions on Mr. Scott’s
arms indicative of trauma, bruising on Mr. Scott’s right rib cage, and tenderness in
Mr. Scott’s chest wall. (38-18, pp. 15–16). A couple of weeks later, the bruising on
Mr. Scott’s right side was still present. (Doc. 38-18, p. 17). Mr. Scott also reported
intermittent numbness in his right thumb and pain in his right foot and ankle. (Doc.

5

Mrs. Scott explained that Mr. Scott bled heavily because he was on blood thinners. According
to Mrs. Scott, after Sergeant Palmer released Mr. Scott, Sergeant Palmer remarked, “I want to
know if you got some kind of serious illness because you've bled all over me.” (Doc. 38-1, p.
109).
7

38-2, pp. 142–43). Mr. Scott stated that emergency room personnel told him the day
of his arrest that these symptoms were due to nerve damage. (Doc. 38-2, pp. 142–43,
145). Following his visits to the hospital and his physician, Mr. Scott participated in
physical therapy for the pain in his foot. (Doc. 38-2, pp. 143–44).
III.

DISCUSSION
A.

Mr. Scott’s § 1983 False Arrest and Excessive Force Claims

Mr. Scott alleges that Sergeant Palmer violated his Fourth Amendment rights
by arresting him without probable cause and using excessive force during the arrest.
See U.S. CONST. amend. IV; (Doc. 1, pp. 7–8; Doc. 50, pp. 13, 23). 42 U.S.C. § 1983
provides a cause of action to a plaintiff like Mr. Scott when a state actor deprives him
of “any rights, privileges, or immunities secured by the Constitution and laws.” 42
U.S.C. § 1983. Sergeant Palmer asks the Court to enter judgment in his favor on Mr.
Scott’s § 1983 claims because, he argues, he is entitled to qualified immunity and
because Mr. Scott cannot show that Sergeant Palmer violated his constitutional rights.
(Doc. 42, p. 23).
Qualified immunity is an affirmative defense, the availability of which is a
“question of law for the court to determine.” Stone v. Peacock, 968 F.2d 1163, 1165
(11th Cir. 1992) (quoting Ansley v. Heinrich, 925 F.2d 1339, 1341 (11th Cir. 1991))
(internal quotation marks omitted). “Qualified immunity protects police officers from
suit in their individual capacities for discretionary actions performed in the course of
their duties.”

Carter v. Butts County, 821 F.3d 1310, 1318 (11th Cir. 2016).
8

“‘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.’” Brown v.
City of Huntsville, Ala., 608 F.3d 724, 733 (11th Cir. 2010) (quoting Vinyard v.
Wilson, 311 F.3d 1340, 1346 (11th Cir 2002)) (internal quotation marks omitted).
Qualified immunity allows government officials, including police officers, “‘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.’”

Brown, 608 F.3d at 733 (quoting Lee v.

Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)). “Qualified immunity ‘does not offer
protection if an official knew or reasonably should have known that the action he took
within his sphere of official responsibility would violate the constitutional rights of
the [plaintiff].’” Carter, 821 F.3d at 1319 (quoting Holmes v. Kucynda, 321 F.3d
1069, 1077 (11th Cir. 2003), in turn quoting Harlow v. Fitzgerald, 457 U.S. 800, 815
(1982)) (alteration provided by Holmes).
An officer asserting entitlement to qualified immunity “must first prove that he
was acting within the scope of his discretionary authority.” Lee, 284 F.3d at 1194
(quoting Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991)) (internal
quotation marks omitted).

An officer acts within the scope of his discretionary

authority when his actions “(1) [are] undertaken pursuant to the performance of his
duties and (2) [are] within the scope of his authority.” Roberts v. Spielman, 643 F.3d
9

899, 903 (11th Cir. 2011) (quoting Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir.
1994)) (internal quotation marks omitted).
The focus is not whether the acts in question “involved the exercise of actual
discretion, [but] whether they are of a type that fell within the employee’s job
responsibilities.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th
Cir. 2004) (asking “whether the government employee was . . . performing a
legitimate job-related function . . . through means that were within his power to
utilize”).

To be eligible for qualified immunity, “the defendant must have been

performing a function that, but for the alleged constitutional infirmity, would have
fallen within his legitimate job description.” Id. at 1266 (emphasis in original).
The evidence shows that Sergeant Palmer was acting within the scope of his
discretionary authority when he arrested Mr. Scott. 6 It is undisputed that, at the time
of the arrest, Sergeant Palmer was outside the police jurisdiction of the RBPD. (Doc.
50, p. 14; Doc. 38-3, p. 28; Doc. 38-4, p. 39–40). However, under Alabama law, a
municipal police officer’s authority to make warrantless arrests extends throughout
the county containing the city that employs the officer. ALA. CODE § 15-10-1 (1975);
Moore v. Crocker, 852 So.2d 89, 90–92 (Ala. 2002). Both the City of Red Bay,
Alabama—Sergeant Palmer’s employer—and the church where the arrest took place
are in Franklin County. As an employee of the City of Red Bay, Sergeant Palmer has
6

Mr. Scott does not specifically allege that Sergeant Palmer acted outside the scope of his
discretionary authority in arresting him. However, because Mr. Scott calls attention to the fact
that Sergeant Palmer made the arrest outside the police jurisdiction of the RBPD, the Court will
address this threshold matter. (Doc. 50, p. 14).
10

authority to make warrantless arrests in Franklin County. See ALA. CODE § 15-10-1
(1975); Moore, 852 So.2d at 90–92; see also Pair v. City of Parker FL Police Dept.,
383 Fed. Appx. 835, 839 (11th Cir. 2010) (“In general, making arrests [is] part of [an
officer’s] job-related duties as a law-enforcement officer.”).
Sergeant Palmer went to the church to investigate a report of a missing child.
(Doc. 38-3, p. 26; Doc. 42, p. 5). Sergeant Palmer was in the process of finalizing his
investigation when he arrested Mr. Scott. (Doc. 38-14, ¶ 8). Thus, in arresting Mr.
Scott, Sergeant Palmer was acting “within the scope of his authority,” “through means
that were within his power to utilize.” Roberts, 643 F.3d at 903; Holloman, 370 F.3d
at 1265. “[B]ut for the alleged constitutional infirmity,” Sergeant Palmer’s arrest of
Mr. Scott would fall within Sergeant Palmer’s “legitimate job description.”
Holloman, 370 F.3d at 1266.

Accordingly, the record establishes that Sergeant

Palmer was acting within the scope of his discretionary authority when he arrested
Mr. Scott.
Once an officer establishes that his actions were within the scope of his
discretionary authority, the burden shifts to the plaintiff to establish (i) that the officer
violated a constitutional right and (ii) that the right was clearly established at the time
of the alleged violation. Carter, 821 F.3d at 1319; Lee, 284 F.3d at 1194. A right is
clearly established if its contours are so clear that a reasonable officer would know
that what he is doing violates that right. Hope v. Pelzer, 536 U.S. 730, 739 (2002)
(citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The Court examines
11

whether Sergeant Palmer violated Mr. Scott’s clearly established constitutional rights
first with respect to Mr. Scott’s false arrest claim and then with respect to his
excessive force claim.
1.

False Arrest

Mr. Scott’s false arrest claim pertains to the Fourth Amendment. The Fourth
Amendment guarantees “[t]he right of the people to be secure . . . against
unreasonable searches and seizures.” U.S. CONST. amend. IV. An arrest is a “seizure
of the person” and must be reasonable, or else it violates the Fourth Amendment. See
Skop v. City of Atlanta, 485 F.3d 1130, 1137 (11th Cir. 2007).
Reasonableness is measured by the presence of probable cause. Carter, 821
F.3d at 1319. Probable cause exists where the totality of the circumstances of which
the arresting officer is aware “would cause a prudent person to believe that the suspect
has committed, is committing, or is about to commit an offense.” Carter, 821 F.3d at
1319 (quoting Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir. 2004))
(internal quotation marks omitted). Because “‘it is inevitable that law enforcement
officials will in some cases reasonably but mistakenly conclude that probable cause is
present,’” an official will receive the protection of qualified immunity if he can
demonstrate that he had arguable probable cause to make an arrest. Carter, 821 F.3d
at 1319–20 (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)).
Arguable probable cause is different from probable cause and exists where a
reasonable officer in the defendant’s position could have believed probable cause
12

existed to arrest. Carter, 821 F.3d at 1320. As the Eleventh Circuit explained in
Carter,
[t]o determine whether an officer had arguable probable cause, we ask
“‘whether the officer’s actions are objectively reasonable ... regardless of
the officer’s underlying intent or motivation.’” Lee, 284 F.3d at 1195
(quoting Vaughan v. Cox, 264 F.3d 1027, 1036 (11th Cir. 2001)). This
standard does not shield officers who unreasonably conclude that
probable cause exists. Skop, 485 F.3d at 1137.
Carter, 821 F.3d at 1320. “Where an officer arrests without even arguable probable
cause, he violates the arrestee’s clearly established Fourth Amendment right to be free
from unreasonable seizures.” Id. (citing Case v. Eslinger, 555 F.3d 1317, 1327 (11th
Cir. 2009)).
Sergeant Palmer arrested Mr. Scott for obstructing governmental operations.
See ALA. CODE § 13A-10-2 (1975); (Doc. 50, p. 18). Thus, Sergeant Palmer is
entitled to qualified immunity if an officer in his position reasonably could have
believed that Mr. Scott had obstructed, was obstructing, or was about to obstruct
governmental operations as defined by Alabama Code § 13A-10-2. See Carter, 821
F.3d at 1319–20.
Under Alabama law, a person obstructs governmental operations if “by means
of intimidation, physical force, or interference or by any other independently unlawful
act, he: (1) [i]ntentionally obstructs, impairs, or hinders the administration of law or
other governmental function; or (2) [i]ntentionally prevents a public servant from
ALA. CODE § 13A-10-2 (1975).

performing a governmental function.”

13

A

governmental function is “[a]ny activity which a public servant,” such as a municipal
police officer, “is legally authorized to undertake on behalf of a government.” 7 ALA.
CODE § 13A-10-1(2), (3), (7) (1975).
The record viewed in the light most favorable to Mr. Scott shows that he
approached Sergeant Palmer and, from a distance of approximately three feet, asked,
“[w]hat’s going on?” (Doc. 38-2, pp. 72–73). Sergeant Palmer responded that Mr.
Scott should “[g]et back up yonder and shut up.” (Doc. 38-2, p. 73). When Mr. Scott
asked Sergeant Palmer if he was out of his jurisdiction, Sergeant Palmer replied, “I go
anywhere I want to go.” (Doc. 38-2, p. 74). Mr. Scott then stated, “[y]eah, but this is
Franklin County. We got a county sheriff that, you know, works this part of the
county.” (Doc. 38-2, pp. 74-75). By way of reply, Sergeant Palmer stepped toward
Mr. Scott and shoved him backwards with two hands. (Doc. 38-2, p. 75). Mr. Scott
then stepped back toward Sergeant Palmer and told him, “we got county law down
here.” (Doc. 38-2, pp. 76). Sergeant Palmer then told Mr. Scott that he was under
arrest. (Doc. 38-2, p. 76).
Mr. Scott cites D.A.D.O. v. State, 57 So. 3d 798 (Ala. Crim. App. 2009), to
support his contention that his conduct before the arrest fell short of that required to

7

Although Mr. Scott argues that Sergeant Palmer’s business at the church concluded once he
found the missing child, he does not argue that Sergeant Palmer ceased, at that point, performing
a governmental function. In any event, the Court finds no triable issue of fact regarding whether
Sergeant Palmer was performing a governmental function under Alabama Code § 13A-10-1(3) in
the moments preceding his arrest of Mr. Scott. Finalizing the details of the child’s return home
with her neighbors fits squarely within § 13A-10-1(3)’s definition of a governmental function.
14

establish the crime of obstructing governmental operations. (Doc. 50, p. 17). In
particular, he cites D.A.D.O.’s holding that “words alone fail to provide culpability
under § 13A-10-2.” D.A.D.O., 57 So. 3d at 806 (“We hold that § 13A-10-2 does
require that the interference be . . . , in part at least, physical in nature.”).
Unlike the plaintiff in D.A.D.O., who, while walking away, told the officer in
that case, “you don’t tell me what to do. . . . I don’t like the way you’re talking to me,”
it is undisputed that Mr. Scott took a step toward Sergeant Palmer while reiterating
that Sergeant Palmer was outside his jurisdiction. D.A.D.O., 57 So. 3d at 800–01;
(Doc. 38-2, p. 76).

Thus, Mr. Scott’s conduct was more than “words alone.”

D.A.D.O., 57 So. 3d at 800–01, 806.

Mr. Scott’s step toward Sergeant Palmer,

combined with the words, “we got county law down here,” appears to be what the
Court in D.A.D.O. had in mind when it required “words coupled with conduct
sufficient to be physical in nature.” Id. at 806; (Doc. 38-2, pp. 75–76).
Based on Mr. Scott’s conduct, an officer in Sergeant Palmer’s position
reasonably could have believed that Mr. Scott intended to physically interfere with
Sergeant Palmer’s business at the church. An officer also could have perceived Mr.
Scott’s reference to “county law” as intimidation, which is, aside from physical
interference and “any other independently unlawful act,” a means of violating § 13A10-2. See ALA. CODE § 13A-10-2 (1975); (Doc. 38-2, p. 76).

15

For these reasons, the Court finds that arguable probable cause existed for
Sergeant Palmer to arrest Mr. Scott. Sergeant Palmer is therefore entitled to qualified
immunity and judgment as a matter of law on Mr. Scott’s false arrest claim. 8
2.

Excessive Force

Mr. Scott’s excessive force claim also concerns the Fourth Amendment. “The
Fourth Amendment’s freedom from unreasonable searches and seizures encompasses
the plain right to be free from the use of excessive force in the course of an arrest.”
Lee, 284 F.3d at 1197; see also Mobley v. Palm Beach Sheriff Dep’t, 783 F.3d 1347,
1353 (11th Cir. 2015). The right to arrest, however, “necessarily carries with it the
right to use some degree of physical coercion or threat thereof to effect it.” Graham v.
Connor, 490 U.S. 386, 396 (1989). Indeed, force and injury are “typical” during an
arrest. Mobley, 783 F.3d at 1353 (quoting Reese v. Herbert, 527 F.3d 1253, 1272
(11th Cir. 2008)) (internal quotation marks omitted).
A district court evaluates an excessive force claim by asking whether the force
used “is objectively reasonable in light of the facts confronting the officer.” Mobley,
783 F.3d at 1353 (quoting Crenshaw v. Lister, 556 F.3d 1283, 1290 (11th Cir. 2009))
(internal quotation marks omitted). In making this determination, courts consider “the
severity of the crime at issue, whether the suspect poses an immediate threat to the

8

In addition to asserting entitlement to qualified immunity, Sergeant Palmer contends that he
had probable cause to arrest Mr. Scott, and he therefore did not violate Mr. Scott’s Fourth
Amendment rights. (Doc. 42, p. 24). Because the Court can resolve Sergeant Palmer’s motion
for summary judgment on qualified immunity grounds, the Court will not consider whether
Sergeant Palmer had probable cause to arrest Mr. Scott.
16

safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Lee, 284 F.3d at 1197–98. Courts also consider
“the need for the application of force, . . . the relationship between the need and the
amount of force used, and . . . the extent of the injury inflicted.” Id. at 1198. The two
sets of factors combine to create a proportionality analysis, under which “the force
used by a police officer in carrying out an arrest must be reasonably proportionate to
the need for that force, which is measured by the severity of the crime, the danger to
the officer, and the risk of flight.” Id.
Based on Mr. Scott’s version of the facts, which the Court accepts at this
juncture, the record does not demonstrate as a matter of law that Sergeant Palmer used
a reasonable amount of force during the arrest. It is undisputed that Sergeant Palmer
arrested Mr. Scott for the Class A misdemeanor offense of obstructing governmental
operations, a crime that is not severe. ALA. CODE § 13A-10-2(c) (1975). It is also
undisputed that at the time of the arrest, Mr. Scott had made remarks that might be
viewed as a challenge to Sergeant Palmer’s authority and had taken a step toward
Sergeant Palmer. But there is no evidence that Mr. Scott used words that suggested a
physical threat to Sergeant Palmer or anyone else. (Doc. 38-2, pp. 75–76). Moreover,
Mr. Scott is in his sixties and was unarmed and non-violent prior to and during the
arrest. (Doc. 50, p. 24). He did not touch Sergeant Palmer before Sergeant Palmer
took him to the ground. (Doc. 38-2, pp. 75–76). Finally, Mr. Scott gave no indication
that he intended to flee, and the facts suggest that flight was unlikely. (Doc. 38-2, pp.
17

75, 83). Measured by these factors, the need for Sergeant Palmer to use force to carry
out Mr. Scott’s arrest was minimal.
The amount of force Sergeant Palmer used, however, was not minimal. The
evidence shows that Sergeant Palmer grabbed Mr. Scott’s arm, twisted it around his
back, and handcuffed that wrist. (Doc. 38-2, p. 83). Mr. Scott then asked Sergeant
Palmer to loosen the handcuff because it was hurting him.

(Doc. 38-2, p. 83).

“Painful handcuffing, without more, is not excessive force in cases where the resulting
injuries are minimal.” Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002).
Here, there was more: rather than loosening the cuff, Sergeant Palmer responded to
Mr. Scott’s request by taking him to the ground. (Doc. 38-2, p. 84).
Mr. Scott testified that Sergeant Palmer kicked his legs out from under him.
(Doc. 38-2, p. 84). Other witnesses describe Sergeant Palmer tripping Mr. Scott (Doc.
38-8, p. 45), taking him to the ground in a “bear hug” (Doc. 38-6, p. 31), or
“throw[ing]” Mr. Scott to the ground (Doc. 38-5, p. 63). Sergeant Palmer argues that
Mr. Scott pulled away while he was cuffing him, throwing Sergeant Palmer off
balance and causing the two men to fall to the ground. (Doc. 42, pp. 31–32). At the
summary judgment stage, the Court accepts Mr. Scott’s version of events rather than
Sergeant Palmer’s version and recognizes that a jury must resolve the disputed fact.
Once on the ground, Sergeant Palmer pinned Mr. Scott down while he
attempted to cuff Mr. Scott’s other arm, which was pinned beneath Mr. Scott. (Doc.
38-2, p. 88). Witnesses testified that Sergeant Palmer appeared to be trying to “bury
18

[Mr. Scott’s] face in them [sic] gravel,” and that Sergeant Palmer was “trying to push
[Mr. Scott’s head] plumb through the ground.” (Doc. 38-11, p. 76; Doc. 38-12, p. 41–
42). Mr. Scott testified that he could not breathe and that it was physically impossible
for him to give his free arm to Sergeant Palmer. (Doc. 38-2, p. 90). One witness
thought Sergeant Palmer was going to kill Mr. Scott and believes Sergeant Palmer
was on drugs because he appeared “out of his mind.” (Doc. 38-12, p. 52).
A reasonable jury confronted with these facts could find that Sergeant Palmer’s
use of force was unreasonably disproportionate to the need for it.
Regarding the second prong of the qualified immunity analysis, it is clearly
established in the Eleventh Circuit that “gratuitous use of force when a criminal
suspect is not resisting arrest constitutes excessive force. Saunders v. Duke, 766 F.3d
1262, 1267 (11th Cir. 2014) (quoting Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th
Cir. 2008)) (internal quotation marks omitted); see also Lee, 284 F.3d at 1200. The
evidence viewed in the light most favorable to Mr. Scott shows that Mr. Scott did not
resist arrest. (Doc. 38-2, pp. 83–84). Sergeant Palmer told Mr. Scott that he was
under arrest, and Mr. Scott replied, “[o]kay.” (Doc. 38-2, p. 83). Sergeant Palmer
then handcuffed Mr. Scott’s arm. (Doc. 38-2, p. 83). When Mr. Scott asked him to
loosen the cuff, Sergeant Palmer took Mr. Scott’s legs from under him and pinned him
to the ground. (Doc. 38-2, pp. 84–86).
Mr. Scott’s request that Sergeant Palmer loosen the handcuff cannot reasonably
be viewed as resisting arrest. Mr. Scott concedes that it is “a possibility” that he
19

“tensed up” when Sergeant Palmer handcuffed him. (Doc. 38-2, p. 84). Mr. Scott
maintains, however, that he did not pull his arm away or do anything that would lead
Sergeant Palmer to conclude that he was not complying with the arrest. (Doc. 38-2, p.
84). More importantly, once Mr. Scott was on the ground and Sergeant Palmer was
on top of him with one arm cuffed behind Mr. Scott, there was no reason for Sergeant
Palmer to continue to hit Mr. Scott in the back and press his head into the ground. An
arrestee’s right to be free from this level of force during an arrest is clearly
established; no reasonable officer with the information available to Sergeant Palmer
could have believed that the amount of force that Sergeant Palmer used to arrest Mr.
Scott was constitutionally permissible. Post v. City of Fort Lauderdale, 7 F.3d 1552,
1559 (11th Cir. 1993); see Hadley, 526 F.3d at 1334 (holding that “punching a nonresisting criminal suspect for no apparent reason other than malice” was a violation of
the suspect’s clearly established right to be free from excessive force during an arrest).
Although the non-resisting plaintiffs in Saunders, Hadley, and Lee were
handcuffed when the officers in those cases applied their force, and Mr. Scott had one
arm free when Sergeant Palmer took him to the ground, the Court considers the
absence of resistance—not the presence of handcuffs—to be the operative factor in
the analysis. Saunders, 766 F.3d at 1267; Hadley, 526 F.3d at 1334; Lee, 284 F.3d at

20

1199. Accordingly, Sergeant Palmer is entitled to neither qualified immunity nor
summary judgment on Mr. Scott’s excessive force claim. 9
B.

Mr. Scott’s § 1983 Malicious Prosecution Claim

Mr. Scott alleges that Sergeant Palmer violated his Fourth Amendment rights
by subjecting him to malicious prosecution. See U.S. CONST. amend. IV; (Doc. 1, p.
7; Doc. 50, pp. 13, 23). Eleventh Circuit recognizes “malicious prosecution as a
violation of the Fourth Amendment and a viable constitutional tort cognizable under §
1983.” Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010). To prevail
on a claim of malicious prosecution under § 1983, a plaintiff must show: (1) the
elements of the common law tort of malicious prosecution, and (2) an unreasonable
seizure in violation of his Fourth Amendment rights. See Kingsland, 382 F.3d at 1234
(citing Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003), cert. denied, 540 U.S. 879
(2003).
When a plaintiff claims malicious prosecution in connection with a warrantless
arrest, the requisite unreasonable seizure must take place after arraignment or
indictment, be distinct from the underlying arrest, and be “in relation to the
prosecution.” Kingsland, 382 F.3d at 1235 (“[T]he plaintiff’s arrest cannot serve as
the predicate deprivation of liberty because it occurred prior to the time of

9

Because, at this stage, the evidence reveals “facts that are inconsistent with qualified immunity
being granted, the case and the qualified immunity issue along with it will proceed to trial.”
Johnson v. Breeden, 280 F.3d 1308, 1317 (11th Cir. 2002). Sergeant Palmer may re-assert his
qualified immunity defense, if he wishes, at the close of the plaintiff’s case in a Rule 50(a)
motion. Id.
21

arraignment, and was not one that arose from malicious prosecution as opposed to
false arrest.”) (quoting Mejia v. City of New York, 119 F. Supp. 2d 232, 254 (E.D.N.Y.
2000)) (internal quotation marks omitted).
Because the record contains no evidence of a seizure other than the arrest at the
church, Mr. Scott does not state a cognizable claim for malicious prosecution, and
Sergeant Palmer is entitled to summary judgment with respect to that claim.
C.

Mr. Scott’s state law claims

In addition to his Fourth Amendment claims, Mr. Scott asserts state law claims
against Sergeant Palmer for false arrest, assault and battery, and malicious
prosecution. (Doc. 1, ¶¶ 6.4, 6.5, 6.6). Sergeant Palmer argues he is entitled to
summary judgment on each claim because he is entitled to state-agent immunity under
Alabama law. (Doc. 42, p. 38).
As with qualified immunity, state-agent immunity “is a question of law to be
decided by the trial court.” Suttles v. Roy, 75 So. 3d 90, 99 (Ala. 2010) (quoting Ex
parte Sawyer, 984 So. 2d 100, 1106–07 (Ala. 2007)) (internal quotation marks and
citation omitted). Under Alabama law, a municipal officer is immune from state 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.” ALA. CODE.
§6-5-338(a) (1975). This immunity applies “when the conduct made the basis of the
claim against the [officer] is based upon the [officer’s] . . . exercising judgment in the
enforcement of the criminal laws of [Alabama], including, but not limited to, law22

enforcement officers’ arresting or attempting to arrest persons . . . .” Hollis v. City of
Brighton, 950 So. 2d 300, 309 (Ala. 2006). An officer is not entitled to discretionary
function immunity when the officer “acts willfully, maliciously, fraudulently, in bad
faith, beyond his or her authority, or under a mistaken interpretation of the law.”
Howard v. City of Atmore, 887 So. 2d 201, 205 (Ala. 2003) (quoting Ex parte
Cranman, 792 So. 2d 392, 405 (Ala. 2000)).
Analysis of discretionary function immunity under Alabama law is analogous
to that of federal qualified immunity. An officer asserting discretionary function
immunity “bears the burden of demonstrating that the plaintiff’s claims arise from a
function that would entitle [the officer] to immunity.” 10 Ex parte Kennedy, 992 So.
2d 1276, 1282 (Ala. 2008) (citing Ex parte Estate of Reynolds, 946 So. 2d 450, 452
(Ala. 2006)). If the officer does that, then the burden shifts to the plaintiff to show
that the officer is not entitled to state-agent immunity. Ex parte Kennedy, 992 So. 2d
at 1252. Mr. Scott argues that Sergeant Palmer is not entitled to immunity because he
acted “willfully, maliciously, in bad faith, [or] beyond his authority.” (Doc. 50, p.
32); See Ex parte Cranman, 792 So. 2d at 405.

10

Mr. Scott does not dispute, and there is no doubt, that Sergeant Palmer was performing a
discretionary function when he arrested Mr. Scott. Swan v. Hueytown, 920 So. 2d 1075, 1079
(Ala. 2005) (“[A]rresting a person is an exercise of judgment—a ‘discretionary function’—and
therefore, clothes the officer in State-agent immunity.”) (citing Cranman, 792 So. 2d at 405 and
Telfare v. City of Huntsville, 841 So. 2d 1222, 1228 (Ala. 2002)). Likewise, when Sergeant
Palmer filed the subsequent complaint and warrant on Mr. Scott, he was “exercising judgment in
the enforcement of the criminal laws of the State.” Ex parte Tuscaloosa County, 796 So. 2d
1100, 1106 (Ala. 2000) (quoting Ex parte Cranman, 792 So. 2d at 405); (See Doc. 38-3, pp. 86,
88).
23

To begin, Sergeant Palmer did not act beyond his authority at any time relevant
to the Court’s state-agent immunity analysis. “A State agent acts beyond authority
and is therefore not immune when he or she fail[s] to discharge duties pursuant to
detailed rules or regulations, such as those stated on a checklist.” Ex parte Walker,
188 So. 3d 633, 635 (Ala. 2015) (quoting Ex parte Estate of Reynolds, 946 So. 2d at
452, in turn quoting Giambrone v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003), in
turn quoting Ex parte Butts, 775 So. 2d 173, 178 (Ala. 2000)) (internal quotation
marks omitted) (alteration provided by Giambrone). This is a narrow exception. Mr.
Scott argues that because Sergeant Palmer acted outside the Constitution when
arresting him, Sergeant Palmer acted beyond his authority under Cranman. (Doc. 50,
p. 32). The Court disagrees. If Cranman’s “beyond his or her authority” exception
were read to exclude from immunity any act that a plaintiff alleges is unconstitutional,
then the doctrine of state-agent immunity would have virtually no effect. Mr. Scott
has offered no evidence that Sergeant Palmer failed to discharge duties pursuant to
detailed rules or regulations, such as those stated on a checklist. See Ex parte Walker,
188 So. 3d at 635. Therefore, Sergeant Palmer did not act beyond his authority such
that he forfeits his immunity under § 6-5-338.
Whether Sergeant Palmer acted willfully, maliciously, or in bad faith is a less
obvious matter. The Court will examine the question with respect to each of Mr.
Scott’s state law claims.

24

1.

False Arrest

The evidence does not show that Sergeant Palmer acted willfully, maliciously,
or in bad faith with respect to Mr. Scott’s false arrest claim. As noted above, Sergeant
Palmer had arguable probable cause to arrest Mr. Scott. See supra, p. 16. That is, a
reasonable officer in Sergeant Palmer’s position could have believed that probable
cause existed to arrest Mr. Scott. Carter, 821 F.3d at 1320. In the false arrest context,
the Alabama Supreme Court considers the presence of arguable probable cause
irreconcilable with allegations of malice or bad faith.

See Borders v. City of

Huntsville, 875 So. 2d 1168, 1180 (Ala. 2003) (“embracing the concept of arguable
probable cause” in determining whether an officer is entitled to state-agent immunity
on a plaintiff’s false arrest claim); Ex parte Harris, ---So. 3d---, 2016 WL 4204837,
*9 (Ala. 2016) (“Because [the officer] had arguable probable cause to arrest [the
plaintiff], we cannot say that he acted ‘willfully, maliciously, fraudulently, [or] in bad
faith’ so as to remove him from the umbrella of State-agent immunity afforded him
under Ex parte Cranman.”). Because arguable probable cause existed for Sergeant
Palmer to arrest Mr. Scott, Sergeant Palmer did not act willfully, maliciously, or in
bad faith. He is therefore entitled to state-agent immunity and summary judgment on
Mr. Scott’s false arrest claim.
2.

Assault and Battery

Sergeant Palmer is not entitled to state-agent immunity with respect to Mr.
Scott’s assault and battery claim. “Under Alabama law, excessive force during an
25

arrest constitutes assault and battery.” Ruffino v. City of Hoover, 891 F. Supp. 2d
1247, 1279 (N.D. Ala. 2012) (citing Franklin v. City of Huntsville, 670 So. 2d 848,
852–53 (Ala. 1995)). In making an arrest, a police officer may use a reasonable
amount of force, but “may be held liable [ ] if more force is used than is necessary to
effectuate the arrest.” Franklin, 670 So. 2d at 852 (citing ALA. CODE 1975 § 13A-327 and Livingston v. Browder, 285 So. 2d 923 (Ala. Civ. App. 1973)). As discussed
above, the evidence viewed in the light most favorable to Mr. Scott shows that
Sergeant Palmer used more force than was necessary to effectuate Mr. Scott’s arrest.
See supra, pp. 17–20. The Court thus declines to find as a matter of law that Sergeant
Palmer did not act willfully, maliciously, or in bad faith when he took Mr. Scott’s legs
out and pinned him to the ground. Accordingly, Sergeant Palmer is not entitled to
state-agent immunity, and the Court denies Sergeant Palmer’s motion for summary
judgment with respect to Mr. Scott’s assault and battery claim.
3.

Malicious Prosecution

To prevail on his malicious prosecution claim, Mr. Scott must show (1) that
Sergeant Palmer initiated a prior judicial proceeding against him, (2) that in the prior
proceeding Sergeant Palmer acted without probable cause and with malice, (3) that
the prior proceeding ended in Mr. Scott’s favor, and (4) damages. Delchamps, Inc. v.
Bryant, 738 So. 2d 824, 831–32 (Ala. 1999). Generally, malice may be inferred from
a lack of probable cause, but the Alabama Supreme Court “has recognized that malice
in law, or legal malice, for purposes of a malicious-prosecution claim, is not sufficient
26

to defeat a state agent’s defense of discretionary-function immunity.”

Ex parte

Tuscaloosa County, 796 So. 2d at 1107. Rather, Mr. Scott must prove that Sergeant
Palmer’s conduct was “so egregious as to amount to willful or malicious conduct or
conduct engaged in in bad faith, by, for example, showing that [Sergeant Palmer] had
a personal ill will against [Mr. Scott] and that he maliciously or in bad faith arrested
him solely for purposes of harassment.” Id. (quoting Couch v. City of Sheffield, 708
So. 2d 144, 153–54 (Ala. 1998)) (internal quotation marks omitted). That is, Mr.
Scott must present “substantial evidence of malice in fact, or actual malice.” Ex parte
Tuscaloosa County, 796 So. 2d at 1107.
Mr. Scott has presented no evidence that Sergeant Palmer had a personal ill will
against him or that Sergeant Palmer maliciously or in bad faith arrested him solely for
purposes of harassment.

Accordingly, Sergeant Palmer is entitled to state-agent

immunity and judgment as a matter of law on Mr. Scott’s malicious prosecution
claim.
D.

Mrs. Scott’s state law claim of outrage

To prevail on her claim of outrage, also known as intentional infliction of
emotional distress, Mrs. Scott must show that Sergeant Palmer’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.” Ex parte
Bole, 103 So. 3d 40, 52 (Ala. 2012) (quoting Green Tree Acceptance, Inc. v.
Standridge, 565 So. 2d 38, 44 (Ala. 1990)) (internal quotation marks omitted). “The
27

tort of outrage is an extremely limited cause of action” and requires conduct “so
outrageous in character and so extreme in degree as to go beyond all possible bounds
of decency, and to be regarded as atrocious and utterly intolerable in a civilized
society.” Ex parte Bole, 103 So. 3d at 53 (internal quotation marks and citations
omitted).
Mrs. Scott argues that Sergeant Palmer engaged in such conduct when he
“manhandled” Mr. Scott, pushed Mr. Scott’s head into the gravel, kneed Mr. Scott in
the back, and threatened to use his Taser on Mr. and Mrs. Scott—all at the Scotts’
“place of worship, in the presence of their friends and grandchildren.” (Doc. 50, pp.
34–35). The Court sympathizes with Mrs. Scott and recognizes that witnessing her
husband’s arrest was undoubtedly a stressful ordeal. However, Sergeant Palmer’s
alleged conduct does not rise to the level of outrage under Alabama law. See Sheth v.
Webster, 145 F.3d 1231, 1234–35, 1240 (11th Cir. 1998) (affirming the district
court’s grant of summary judgment on a plaintiff’s outrage claim where an officer
kneed the plaintiff in the stomach, pushed her against a soda machine, handcuffed her,
and dragged her to the police car, even though she posed no threat). Accordingly,
Sergeant Palmer is entitled to judgment as a matter of law on Mrs. Scott’s outrage
claim.
IV.

CONCLUSION
For the reasons discussed above, the Court GRANTS Sergeant Palmer’s

motion for summary judgment with respect to Mr. Scott’s claims for false arrest and
28

malicious prosecution under 42 U.S.C. § 1983 and Alabama law, and with respect to
Mrs. Scott’s claim for outrage under Alabama law. These claims are DISMISSED
WITH PREJUDICE.
The Court DENIES Sergeant Palmer’s motion for summary judgment with
respect to Mr. Scott’s claims for excessive force under 42 U.S.C. § 1983 and assault
and battery under Alabama law. The Court asks the Clerk to please TERM Doc. 41.

DONE and ORDERED this September 27, 2016.

_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE

29