Carver v. Pell City, Alabama, City of et al

Filing 18

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 1/8/2015. (AVC)

FILED
2015 Jan-08 PM 02:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
KYRA CARVER,
Plaintiff,
v.
CITY OF PELL CITY, GREGORY
TURLEY, FRANKLIN GREEN,
RICHARD WOOD, and JAMES
JONES,
Defendants.

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) Case No.: 4:13-cv-00906-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION AND PROCEDURAL HISTORY
Plaintiff Kyra Carver (“Ms. Carver”) initiated this civil rights lawsuit on May

14, 2013, against Defendants City of Pell City (“Pell City”), Chief of Police Gregory
Dean Turley (“Chief Turley”), Officer Franklin Green (“Officer Green”), Officer
Richard Woods (“Officer Woods”), and Officer James Jones (“Officer Jones”). Chief
Turley and Officers Green, Woods, and Jones were sued in their individual and
official capacities. Ms. Carver’s complaint contains counts which assert federal and
state constitutional claims stemming from her arrest on May 16, 2011, for the
purchase of pseudoephedrine. (Doc. 1 ¶ 9).

According to Ms. Carver’s complaint (doc. 1), the following six claims are
pending: (1) unlawful seizure and excessive force in violation of 42 U.S.C. § 1983
against Officers Jones, Woods, and Green; (2) intentional infliction of emotional
distress against Officers Jones, Woods, and Green; (3) negligence against Officer
Jones, Woods, and Green; (4) failure to train and supervise in violation of 42 U.S.C.
§ 1983 against Chief Turley and Pell City; (5) failure to enact or enforce policy in
violation of 42 U.S.C. § 1983 against Chief Turley and Pell City; and (6) malicious
prosecution, false arrest, and false imprisonment against all Defendants.
Pending before the court is Defendants’ Motion for Summary Judgment (Doc.
13) (the “Motion”), filed on September 24, 2014. The parties have supported and
opposed the Motion. (Docs. 13-17). Accordingly, the Motion is ready for disposition
and, for the reasons explained below, is due to be GRANTED as to all Ms. Carver’s
claims.
II.

APPLICABLE STANDARDS
A.

Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, summary judgment is proper if there
is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper if the pleadings,

2

depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”) (internal quotation
marks and citation omitted). The party requesting summary judgment always bears the
initial responsibility of informing the court of the basis for its motion and identifying
those portions of the pleadings or filings that it believes demonstrate the absence of
a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has
met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings
in answering the movant. Id. at 324. By its own affidavits – or by the depositions,
answers to interrogatories, and admissions on file – it must designate specific facts
showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which
are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the entry
of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. If the evidence presented by the non-movant to rebut the moving party’s

3

evidence is merely colorable, or is not significantly probative, summary judgment may
still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether
that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of
proof on the given issue or issues at trial, then it can only meet its burden on summary
judgment by presenting affirmative evidence showing the absence of a genuine issue
of material fact – that is, facts that would entitle it to a directed verdict if not
controverted at trial. Id. (citation omitted). Once the moving party makes such an
affirmative showing, the burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating the existence of a triable issue of fact.”
Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can
satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of evidence to support the
non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance, the
non-movant must rebut by either (1) showing that the record in fact contains
supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering
evidence sufficient to withstand a directed verdict motion at trial based on the alleged

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evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no
longer rest on mere allegations; instead, it must set forth evidence of specific facts.
Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this
position may use to discharge its burden is to provide affirmative evidence
demonstrating that the non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering
evidence sufficient to withstand a directed verdict at trial on the material fact sought
to be negated. Id.
B.

Qualified Immunity

“The defense of qualified immunity completely protects government officials
performing discretionary functions from suit in their individual capacities unless their
conduct violates “clearly established statutory or constitutional rights of which a
reasonable person would have known.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th
Cir. 2003) (internal quotation marks omitted) (quoting Gonzalez v. Reno, 325 F.3d
1228, 1233 (11th Cir. 2003)). “To receive qualified immunity, a governmental official
first must prove that he was acting within his discretionary authority. Id.
This is a two-part test. Under the first step, “the defendant must [prove that he
or she was] performing a function that, but for the alleged constitutional infirmity,
would have fallen within his legitimate job description.” Holloman ex rel. Holloman

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v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). Next, the defendant must prove that
he or she was “executing that job-related function.” Id. at 1267. “Once a defendant
establishes that he was acting within his discretionary authority, the burden shifts to
the plaintiff to show that the defendant is not entitled to qualified immunity.” Cottone,
326 F.3d at 1358.
Until 2009, the Supreme Court had required a two-part inquiry to determine the
applicability of qualified immunity, as established by Saucier v. Katz, 533 U.S. 194,
201 (2001). Under the Saucier test, “[t]he threshold inquiry a court must undertake in
a qualified immunity analysis is whether [the] plaintiff’s allegations, if true, establish
a constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002).
If, under the plaintiff’s allegations, the defendants would have violated a
constitutional right, “the next, sequential step is to ask whether the right was clearly
established.” Cottone, 326 F.3d at 1358 (quoting Saucier, 533 U.S. at 201). The
“clearly established” requirement is designed to assure that officers have fair notice
of the conduct which is proscribed. Hope, 536 U.S. at 739. This second inquiry
ensures “that before they are subjected to suit, officers are on notice their conduct is
unlawful.” Saucier, 533 U.S. at 206.

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The “unlawfulness must be apparent” under preexisting law.1 Anderson v.
Creighton, 483 U.S. 635, 640 (1987). Therefore, a temporal requirement exists related
to this inquiry. More particularly, a plaintiff must show that a reasonable public
officer would not have believed her actions to be lawful in light of law that was
clearly established at the time of the purported violation. See id. at 639 (“[W]hether
an official protected by qualified immunity may be held personally liable for an
allegedly unlawful official action generally turns on the ‘objective legal
reasonableness’ of the action[,] assessed in light of the legal rules that were ‘clearly
established’ at the time it was taken[.]”) (emphasis added) (citation omitted); Brosseau
v. Haugen, 543 U.S. 194, 198 (2004) (“If the law at that time did not clearly establish
that the officer’s conduct would violate the Constitution, the officer should not be
subject to liability or, indeed, even the burdens of litigation.”).
However, the Saucier framework was made non-mandatory by the Supreme
Court in Pearson v. Callahan, 555 U.S. 223, 236 (2009), in which the Court
concluded that, “while the sequence set forth [in Saucier] is often appropriate, it
should no longer be regarded as mandatory.” Thus, “judges of the district courts and
the courts of appeals should be permitted to exercise their sound discretion in deciding
1

Only Supreme Court, Eleventh Circuit, and Alabama Supreme Court cases can “clearly
establish” the law in this litigation. See Thomas v. Roberts, 323 F.3d 950, 953 (11th Cir. 2003)
(“In this circuit, rights are ‘clearly established’ by decisions of the Supreme Court, this court, or
the highest court of the state in which the case arose.” (citing Hamilton v. Cannon, 80 F.3d 1525,
1532 n.7 (11th Cir. 1996))).

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which of the two prongs of the qualified immunity analysis should be addressed first
in light of the circumstances in the particular case at hand.” Id.
Despite the Supreme Court’s modification of Saucier’s analytical process, the
substantive analysis remains unchanged; an officer is entitled to qualified immunity
protection as long as he “could have believed” his conduct was lawful. Hunter v.
Bryan, 502 U.S. 224, 227, 112 S. Ct. 534, 536, 116 L. Ed. 2d 589 (1991). Therefore,
to deny immunity, a plaintiff must affirmatively demonstrate that “no reasonable
competent officer would have” acted as the public official did. Malley v. Briggs, 475
U.S. 335, 341 (1986).
III.

FACTUAL BACKGROUND2
A.

Admitted Facts

This court’s “Uniform Initial Order Governing All Further Proceedings,”
entered on June 24, 2013, specifically sets forth the requirements regarding the
preparation and submission of briefs and evidentiary materials in support of and in
opposition to potentially dispositive motions. (Doc. 7). Accordingly, “the court

2

When deciding a motion for summary judgment the court must view the evidence and
all factual inferences in the light most favorable to the party opposing the motion. This rule
governs the following statement of facts. See Optimum Techs., Inc. v. Henkel Consumer
Adhesives, Inc., 496 F.3d 1231, 1241 (11th Cir. 2007) (observing that, in connection with
summary judgment, a court must review all facts and inferences in a light most favorable to the
non-moving party).This statement does not represent actual findings of fact. See In re Celotex
Corp., 487 F.3d 1320, 1328 (11th Cir. 2007). Instead, the court has provided this statement
simply to place the court’s legal analysis in the context of this particular case or controversy.

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reserve[d] the right sua sponte to STRIKE any statement of fact or responsive
statement that fail[ed] to comply with these requirements.” (Doc. 7 at 18). Appendix
II of the court’s Uniform Initial Order requires that “[a]ll briefs submitted either in
support of or opposition to a motion [for summary judgment] must begin with a
statement of allegedly undisputed relevant material facts set out in separately
numbered paragraphs.” (Doc. 7 at 15). As to Ms. Carver, the Uniform Initial Order
set forth the following requirements for stating facts:
Opposing Party’s Statement of Facts
Each party opposing a summary judgment motion also must
submit a statement of facts divided as follows.
a. Response to Movant’s Statement
The first section must consist of only the non-moving party’s
disputes, if any, with the moving party’s claimed undisputed facts. The
non-moving party’s response to the moving party’s claimed undisputed
facts shall be in separately numbered paragraphs that coincide with
those of the moving party’s claimed undisputed facts. Any statements of
fact that are disputed by the non-moving party must be followed by a
specific reference to those portions of the evidentiary record upon which
the dispute is based. All material facts set forth in the statement required
of the moving party will be deemed to be admitted for summary judgment
purposes unless controverted by the response of the party opposing
summary judgment.
b. Additional Undisputed Facts
The second section may contain additional, allegedly undisputed
facts set out in separately numbered paragraphs that the opposing party
contends require the denial of summary judgment. The second section of
the opposing party’s statement of facts, if any, shall be clearly designated
as such. The opposing party should include only facts which the
opposing party contends are true and not in genuine dispute.
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c. Additional Disputed Facts
The third section may contain additional, allegedly disputed facts
set out in separately numbered paragraphs that the opposing party
contends require the denial of summary judgment. The third section of
the opposing party’s statement of facts, if any, shall be clearly designated
as such. Each statement of allegedly disputed facts must be followed by
specific reference to those portions of the evidentiary record which both
support and contradict the alleged fact.
(Doc. 7 at 16-17). Additionally, the order required that “[a]ll statements of fact must
be supported by specific reference to evidentiary submissions.” (Doc. 7 at 16).
The “Plaintiff’s Response to Defendants’ Motion for Summary Judgment” (doc.
16), which was seven pages long, does not follow these requirements. Ms. Carver
failed to respond to the Defendants’ claimed undisputed facts in separately numbered
paragraphs coinciding with the Defendants’ claimed undisputed facts. Consequently,
whenever Ms. Carver has inadequately asserted a dispute over a fact that Defendants
have otherwise substantiated with an evidentiary citation, the court has reviewed the
cited evidence and, if it in fact fairly supports Defendants’ factual assertion, has
accepted Defendants’ fact. On the other hand, whenever Ms. Carver has adequately
disputed a fact offered by the Defendants, the court has reviewed the evidence cited
by Ms. Carver and, if it in fact fairly supports Ms. Carver’s factual assertion, has
accepted Ms. Carver’s version.
B.

Undisputed Facts

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At all times relevant, Officers Jones and Woods were employees of the Pell
City Police Department (“PCPD”) (docs. 13-2 at 2, 13-3 at 2) and Chief Turley was
Chief of the PCPD. Officer Franklin Green was an investigator with PCPD assigned
to the narcotics division from 2007 through 2010, but was no longer an investigator
for PCPD on May 16, 2011, and had no interaction or communication with the district
court after signing the April 30, 2009, criminal complaint. (Doc. 13-1 at 2-3). Neither
Officers Jones or Green, nor Magistrate Wheeler, who issued the warrant for Ms.
Carver’s arrest, knew Ms. Carver before this case. (Docs. 13-1 at 3; 13-2 at 3; 13-4 at
2).
Ms. Carver purchased 6.46 grams of pseudoephedrine in February of 2009.
(Doc. 13-5 at ¶ 10), AF No. 4. At the time, Ala. Code § 20-2-190(c)(2) criminalized
the purchase of greater than 6 grams of ephedrine or pseudoephedrine within a thirty
day period with the intent to manufacture.3 Officer Green, an investigator for PCPD’s
narcotics division, routinely obtained purchase logs from area pharmacies to
determine what persons were purchasing pseudoephedrine in violation of Ala. Code
§ 20-2-190(c)(2). (Doc. 13-1 at 2), AF No. 3.4 After reviewing pharmacy records for
3

A violation of the statute constituted a Class C misdemeanor for the first offense and
subsequent violations of the statute constituted a Class C felony. Ala. Code § 20-2-190(c)(7).
4

The designation “AF” stands for admitted fact and indicates a fact offered by
Defendants that Ms. Carver has admitted. As noted above, under appendix II of the court's
uniform initial order (Doc. 7) entered on June 24, 2013, “[a]ll statements of fact must be
supported by specific reference to evidentiary submissions,” (id. at 16), and “[a]ll material facts

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February of 2009, Officer Green discovered that Ms. Carver purchased 6.46 grams of
pseudoephedrine within a 14 day period. (Doc. 13-1 at 2). Specifically, Ms. Carver
purchased 2.88 grams of pseudoephedrine from Wal-Mart on February 6, 2009, 0.70
grams from CVS on February 8, 2009, and 2.88 grams from Walgreens on February
20, 2009. AF No. 4. Officer Green’s practice was to rely on the accuracy of pharmacy
reports, which led to many convictions. AF No. 5.
On April 21, 2009, Officer Green completed an incident report and received his
supervisor’s approval to file a criminal complaint. (Doc. 13-1 at 3), AF No. 7. As a
result, Officer Green signed a criminal complaint, under oath, before City Magistrate
Linda Wheeler on April 30, 2009. (Doc. 13-1 at 3); AF No. 8. Based on Officer
Green’s complaint, and relying on the trustworthiness of the pharmacy report and
Officer Green, Magistrate Wheeler found probable cause to issue the warrant for Ms.
Carver’s arrest. (Doc. 13-4 at 2), AF No. 9. Officer Green had no other involvement
with Ms. Carver or the Municipal Court related to Ms. Carver’s case after signing the
criminal complaint on April 30, 2009, and left his employment with Pell City in 2010.
(Doc. 13-1 at 3), AF No. 10.

set forth in the statement required of the moving party will be deemed to be admitted for
summary judgment purposes unless controverted by the response of the party opposing summary
judgment. Id. at 16.

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Officer James Jones served as the warrant/court officer for the PCPD between
2009 and 2011. (Doc. 13-2 at 2). As the warrant/court officer, his duties included
court security, warrant filing, and warrant extradition. (Doc. 13-2 at 2). On May 16,
2011, Officer Jones executed the arrest warrant on Ms. Carver at the Pell City School
bus stop, where Ms. Carver was employed as a school bus driver. (Doc. 13-2 at 3;
Doc. 13-5 at ¶ 8). Officer Jones handcuffed Ms. Carver with her arms behind her back.
(Doc. 13-2 at 3). The handcuffs were “finger tight,” allowing for him to place a finger
between her wrists and the inside of the handcuffs, and “double locked,” which
prevented them from tightening any further. (Doc. 13-2 at 3). Ms. Carver did not resist
arrest (doc. 13-5 at 17), and Officer Jones drove her to the PCPD for processing
without incident. (Doc. 13-2 at 3). After processing, Officer Jones transported Ms.
Carver across the street to the St. Clair County Jail, which is under contract to house
Pell City’s inmates and detainees. (Doc. 13-2 at 3). After transporting Ms. Carver to
the St. Clair County Jail, he had no further interaction with Ms. Carver. (Doc. 13-2 at
3). Then, approximately two hours after her arrest, Ms. Carver was transported back
to PCPD, where Magistrate Wheeler released Ms. Carver on her own recognizance5
with a court date of June 14, 2011. (Doc. 13-4 at 6).

5

Plaintiff maintains that, despite the fact that she was released on her own recognizance,
her bail was originally set for $1,000. (Doc. 16 at 2). However, any issue of fact related to the
amount of bail is not material to the analysis herein.

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On May 17, 2011, the day following her arrest, Ms. Carver presented Pell City
Prosecutor, Lyle Harmon, with a letter from her son’s physician indicating that he
instructed her to treat her son’s illness with Sudafed. (Doc. 13-3 at 2). Harmon then
contacted Defendant Officer Woods regarding the case against Ms. Carver. (Doc. 13-3
at 2). Harmon instructed Officer Woods to investigate the information forming the
basis of Officer’s Green’s criminal complaint. (Doc. 13-2 at 3). Officer Woods
searched the “Justice Exchange,” a database not available to Officer Green because
the Pell City narcotics division did not receive access to the database until early 2011.
(Doc. 13-3 at 2). Officer Woods determined that 0.7 grams of the pseudoephedrine
Ms. Carver purchased during the relevant time was for Children’s Sudafed. (Doc. 13-3
at 2). Because Alabama law exempted purchases for children’s medication under the
statute,6 Ms. Carver only purchased 5.76 grams of pseudoephedrine covered by the
statute within a thirty day period in February of 2009. (Doc. 13-3). In light of the letter
from Ms. Carver’s son’s physician, the Justice Exchange report, the lack of any other
suspicious behavior, and the fact that Ms. Carver was not known to be involved in the
drug community, Officer Woods encouraged Harmon to dismiss the charges against
her. (Doc. 13-3 at 3).

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The statute criminalizing the purchase of greater than 6 grams of pseudoephedrine
within a 30 day period with the intent to manufacture was not applicable to “pediatric products
labeled pursuant to federal regulation primarily intended for administration to children under 12
years of age according to label instructions.” Ala. Code § 20-2-120(c)(4).

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Ms. Carver signed a release purportedly absolving Pell City and Officers
Green, Jones, and Woods from civil liability, and charges were immediately
dismissed.7 (Doc. 13-4 at 7-8). The Municipal Court entered an order of dismissal
upon which the prosecutor wrote, “The City of Pell City will do everything in its
power to ensure that Mrs. Carver’s arrest be purged from all city and state systems.”
(Doc. 13-4 at 8). Officer Woods also wrote on the motion to dismiss that the “warrant
should not have been taken [and that] parents were buying kid’s Sudafed for their
child.” (Doc. 13-4 at 8). Shortly thereafter, Officer Woods explained to Ms. Carver’s
supervisor and the school board that the charges had been dismissed and that Ms.
Carver had not committed a crime. (Doc. 13-3 at 3).
IV.

ANALYSIS
A.

Ms. Carver’s Section 1983 Claims
1.

Official Capacity Claims

A § 1983 claim against a person in his official capacity seeks to impose liability
on the entity which he represents, and not on him personally. See, e.g., Welch v.
Laney, 57 F.3d 1004, 1008 (11th Cir. 1995) (“Welch’s action against the Sheriff and

7

Although Ms. Carver disputes the validity of the release, the Defendants have
abandoned their argument that the release provides sufficient grounds for summary judgment.
(Doc. 17 at 1-2) (“While the undersigned is doubtful that [Ms. Carver] has presented sufficient
evidence to overcome the legal tests for setting aside the release as set forth in Defendants’
initial brief . . . the court does not need to wrestle with that issue because Defendants drop that
ground for summary judgment.”). As a result, the court does not address this argument.

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Chief Deputy Sheriff in their official capacities imposes liability on the entity they
represent, and not on them as individuals.”) (citing Brandon v. Holt, 469 U.S. 464,
471-72 (1985)). The Eleventh Circuit has explained the distinctions between these
two capacities in more detail:
Personal capacity suits seek to impose personal liability upon a
government official for actions he takes under the color of state law.
Official-capacity suits, in contrast, ‘generally represent only another way
of pleading an action against an entity of which an officer is an agent.’
In other words, a plaintiff in an action against a government official in
her personal capacity can recover only against the officials personal
assets. The assets of the governmental are not accessible. The reverse is
true in an official capacity lawsuit. Furthermore, ‘to establish personal
liability in a § 1983 action, it is enough to show that the official acting,
under color of state law, caused the deprivation of a federal right . . . [I]n
an official-capacity suit, the entity’s policy or custom must have played
a part in the violation of federal law.’
Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1060 (11th Cir. 1992) (internal
quotation marks and citations omitted). Therefore, any official capacity claims that
Ms. Carver seeks to assert against Chief Turley and Officers Jones, Woods, and Green
are duplicative of her federal claims brought against Pell City. Accordingly, the
Defendants’ Motion is due to be granted as to all official capacity federal claims
asserted against Chief Turley, and all such claims asserted against Officers Jones,
Woods, and Green.
2.

Failure to Train/ Supervise and Failure to Enact or Enforce Policy
a.

City of Pell City
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Ms. Carver’s complaint raises two § 1983 claims against Pell City– a claim for
failure to train and supervise and a claim for failure to enact and/or enforce policy. As
a preliminary matter, Ms. Carver failed to respond to the Defendants’ motion for
summary judgment as to her claims against Pell City for failure to enact and/or
enforce policy. By not responding, Ms. Carver abandoned that claim against Pell City.
See, e.g., Davis v. Coca-Cola Bottling Co., Consol, 516 F.3d 955, 971 n. 36 (11th Cir.
2008) (“[Plaintiff] did not defend the claim on summary judgment; thus he abandoned
it.”); Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001) (finding
claim abandoned when argument not presented in initial response to motion for
summary judgment).
However, even had Ms. Carver not abandoned her claims against Pell City, Pell
City would still be entitled to summary judgment as to all of Ms. Carver’s § 1983
claims. The law is well settled that a municipality cannot be held liable under 42
U.S.C. § 1983 under a theory of respondeat superior, meaning that “a municipality
cannot be held liable solely because it employs a tortfeasor.” Monell v. Dept. of Social
Services of New York, 436 U.S. 658, 691 (1978) (emphasis in original). Rather, before
a municipality can be held accountable for the conduct of a police officer, a plaintiff
must show that the execution of the local government’s “policy” or “custom” was the
cause of the injury. Id. at 694. In other words, “[a] local government may be held

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liable under § 1983 only for acts for which it is actually responsible, ‘acts which the
[local government] has officially sanctioned or ordered.’” Turquitt v. Jefferson Cnty.,
1137 F.3d 1285, 1287 (11th Cir. 1998) (citing Pembaur v. City of Cincinnati, 475 U.S.
469, 479-480 (1986)).
Rule 56(e) of the Federal Rules of Civil Procedure requires the non-moving
party to go beyond the pleadings in answering the movant, once the moving party has
met its burden. Celotex, 477 U.S. at 324.8 Here, the Defendants argue that the Plaintiff
cannot prove that Pell City had an unconstitutional policy or prove causation between
any unconstitutional policies and any violation of Ms. Carver’s constitutional rights.
(Doc. 14 at 22). Indeed, Ms. Carver has not presented any evidence that Pell City has
any policy or custom that proximately caused her injury. Instead, Ms. Carver, with no
citation to evidence, makes the bare assertions that “the Defendants failed to train and
supervise police officers and ensure that proper investigations were conducted in order
to prevent the issuance of erroneous warrants which led to the unlawful arrest of the
Plaintiff,” (doc. 16 at 4), and that “the Defendants failed to properly train Defendant
Franklin Green and supervise his activity to ensure the accuracy of the pharmacy logs
or that Defendant Green took independent steps to verify the veracity of the

8

By its own affidavits – or by the depositions, answers to interrogatories, and
admissions on file – the nonmovant must designate specific facts showing that there is a genuine
issue for trial. Celotex, 477 U.S. at 324.

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information contained therein,” (doc. 16 at 5). Ms. Carver presented no evidence to
establish a causal link between any policy of, or failure to train or enforce its policies
by, Pell City and the plaintiff’s arrest. Accordingly, Pell City cannot be held liable on
the Plaintiff’s claims under § 1983, and, thus, summary judgment for the § 1983
claims against Pell City is due to be granted.
3.

Individual Capacity Claims
a.

Chief Turley

Ms. Carver also asserts claims against Chief Turley, in his individual capacity,
for failure to train and supervise in violation of 42 U.S.C. § 1983 and failure to enact
and/or enforce policy in violation of 42 U.S.C. § 1983. Ms. Carver failed to respond
to the Defendants’ contentions in support of their Motion and, consequently,
abandoned her claim. See Wilkerson, 270 F.3d at 1322 (holding that claims not
addressed in response to motion for summary judgment are deemed abandoned).
However, even if Ms. Carver’s claims were not abandoned, they fail as a matter of law
because there is no liability for supervisory officials based solely on respondeat
superior or vicarious liability. Hardin v. Hayes, 957 F.2d 845, 849 (11th Cir. 1992).
Supervisor liability [under § 1983] occurs either when the supervisor
personally participates in the alleged constitutional violation or when
there is a causal connection between actions of the supervising official
and the alleged constitutional deprivation. The causal connection can be
established when a history of widespread abuse puts the responsible
supervisor on notice of the need to correct the alleged deprivation, and
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[he] fails to do so. The deprivations that constitute widespread abuse
sufficient to notify the supervising official must be obvious, flagrant,
rampant, and of continued duration, rather than isolated occurrences.
Braddy v. Florida Dept. of Labor and Employment Sec., 133 F.3d 797, 802 (11th Cir.
1998) (emphasis supplied) (quoting Brown v. Crawford, 906 F.2d 667, 671 (11th Cir.
1990). Further, a supervisory official is not liable for an injury that results from his
failure to train subordinates unless his “failure to train amounts to deliberate
indifference to the rights of persons with whom the police come into contact.”
Popham v. City of Talladega, 908 F.2d 1561, 1565 (11th Cir. 1990).
Thus, the question here is whether Ms. Carver presented evidence that Chief
Turley failed to train and supervise officers or enact and enforce policy and that his
failure to train or enact policy amounted to deliberate indifference to the rights of
others. Ms. Carver presents no evidence of either. See Braddy, 133 F.3d at 802. Ms.
Carver merely asserts that Chief Turley “failed to properly train Defendant Franklin
Green and supervise his activity to ensure the accuracy of the pharmacy logs or that
Defendant Green took independents steps to verify the veracity of the information
contained therein” and that “failure to train and/or supervise resulted in the unlawful
arrest and false imprisonment and of the plaintiff.” (Doc. 16 at 5). Ms. Carver does
not, however, cite any evidence that Chief Turley acted unlawfully or knew that
subordinates would act unlawfully. Cottone, 326 F.3d at 1360. Nor does Ms. Carver

20

provide any evidence of a history of widespread abuse that would put a responsible
supervisor on notice of the need to correct the alleged deprivation or that any
constitutional deprivations were obvious, flagrant, rampant, and of continued duration.
Because Ms. Carver has failed to designate specific facts showing there is a genuine
issue for trial, the Defendants’ Motion as to Ms. Carver’s § 1983 claims against Chief
Turley in his individual capacity is due to be granted. See Celotex, 477 U.S. at 324.
b.

Officers Jones, Woods, and Green

Ms. Carver’s constitutional claims asserted against Officers Jones, Woods, and
Green are for unlawful seizure and excessive force. (Doc. 1 at 4). Ms. Carver alleges
that these officers’ actions constituted an unlawful seizure of her person and violated
her rights secured by the Fourth, Fifth and Fourteenth Amendments to the United
States Constitution. The Defendants seek summary judgment on all of Ms. Carver’s
42 U.S.C. § 1983 claims as to these officers, and provide specific reasons why
summary judgment is due to be granted.
i.

Arrest Claims

Ms. Carver asserts that these officers are liable for an unconstitutional arrest.
(Doc. 1 at 4). Ms. Carver was arrested for the illegal purchase of pseudoephedrine in
violation of Alabama Code § 20-2-190. At the time, Alabama law made unlawful the
purchase of more than 6 grams of ephedrine or pseudoephedrine by an individual

21

within a 30 day period with the intent to manufacture. Ala. Code § 20-2-190. Ms.
Carver maintains that her arrest was improper under the Fourth Amendment because
these Defendants’ “investigation of the underlying criminal conduct which resulted
in the issuance of the arrest warrant in this matter comprised of merely reviewing
pharmacy log records showing that [she] purchased quantities of pseudoephedrine.”
(Doc. 16 at 1-2). The day after her arrest, she established that a portion of the
pseudoephedrine she purchased in February 2009 was children’s Sudafed, which was
exempted from the statute.9 (Doc. 13-3 at 2). Accordingly, she had committed no
crime, and the charges were dismissed. (Doc. 13-3 at 3).
“Under the Fourth Amendment, an individual has a right to be free from
‘unreasonable searches and seizures.’” Skop v. City of Atlanta, 485 F.3d 1130, 1137
(11th Cir. 2007). “In Fourth Amendment terminology, an arrest is a seizure of a
person, and the ‘reasonableness’ of an arrest is, in turn, determined by the presence
or absence of probable cause for the arrest. Skop, 485 F.3d at 1137 (internal citation
omitted). “While an officer who arrests an individual without probable cause violates
the Fourth Amendment, this does not inevitably remove the shield of qualified
immunity.” Id. In fact, the Supreme Court has observed that “it is inevitable that law
enforcement officials will in some cases reasonably but mistakenly conclude that

9

See fn. 6, supra.

22

probable cause is present, and that [the Court has] indicated that in such cases those
officials . . . should not be held personally liable.” Anderson v. Creighton, 483 U.S.
635, 641 (1987); Skop, F. 3d at 1137. “Thus even if we determine that the officer did
not in fact have probable cause, we apply the standard of “arguable probable cause,’
that is, whether ‘reasonable officers in the same circumstances and possessing the
same knowledge as the Defendants could have believed that probable cause existed
to arrest.’” Id. Accordingly, “if the arresting officer had arguable probable cause to
arrest for any offense, qualified immunity will apply.” Brown v. City of Huntsville,
608 F.3d 724, 735 (11th Cir. 2010) (citing Skop, 485 F.3d at 1138). “Whether an
officer possesses probable cause or arguable probable cause depends on the elements
of the alleged crime and the operative fact pattern.” Id. Therefore, the court must
consider whether these officers had arguable probable cause to arrest the Plaintiff.
aa.

Officer Jones

The Defendants’ Motion as to Ms. Carver’s false arrest claims against Officer
Jones is due to be granted. In support of his Motion, Officer Jones argues that, because
he was acting pursuant to an arrest warrant, probable cause existed to arrest Ms.
Carver, and that he therefore is protected by qualified immunity. Here, the undisputed
facts indicate that Officer Jones was acting pursuant to an arrest warrant when he
arrested Ms. Carver on May 16, 2011. Because Officer Jones was acting pursuant to

23

an arrest warrant, as a relying officer, he cannot be subjected to civil liability if it later
turns out that the information was wrong and the arrest accordingly not supported by
probable cause. See Williams v. Town of White Hall, 450 F. Supp. 2d 1300, 1305
(M.D. Ala. 2006) (“When a law enforcement official reasonably relies on information
received from fellow officers in deciding to arrest a suspect, the relying officer is not
subject to civil liability if it later turns out that the information was wrong and the
arrest not supported by probable cause.”) (citing United States v. Hensley, 469 U.S.
221, 230 (1985)).
Even if Ms. Carver’s arrest had not been pursuant to a warrant, the doctrine of
qualified immunity would protect Officer Jones from civil liability. Qualified
immunity shields government officials preforming discretionary functions from §
1983 suits unless their conduct violates “clearly established statutory or constitutional
rights of which a reasonable person would have known.” Hope v. Pelzer, 536 U.S. at
739. Importantly, an officer may be shielded from liability under the doctrine of
qualified immunity even when probable cause for the arrest did not exist. If the
arresting officer had arguable probable cause to arrest for any offense, qualified
immunity may apply. Grider v. City of Auburn, 618 F. 3d 1240, 1257 (11th Cir. 2010).
“Showing arguable probable cause does not, however, require proving every element
of a crime.” Id. Instead, the court determines whether ‘reasonable officers in the same

24

circumstances and possessing the same knowledge as the Defendants could have
believed that probable cause existed to arrest.’” Id. (emphasis supplied).
Here, the undisputed evidence confirms that, even if Officer Jones did not have
actual probable cause to arrest Ms. Carver for the illegal purchase of pseudoephedrine,
the pharmacy logs reviewed by Officer Green are sufficient to establish arguable
probable cause for her arrest. At the time, Ala. Code § 20-2-190(c)(2) criminalized the
purchase of greater than 6 grams of ephedrine or pseudoephedrine within a thirty day
period with the intent to manufacture.10 Ms. Carver admits to purchasing 6.46 grams
of pseudoephedrine within a 14 day period in February of 2009. (Doc. 13-5 at ¶ 10).
Although Ms. Carver later established that a percentage of the pseudoephedrine
purchased in February of 2009 was children’s Sudafed and not “countable” under the
law, Ms. Carver does not dispute that PCPD did not gain access to the Justice
Exchange database until after the time of her arrest. AF. No. 20. Accordingly,
reasonable officers in the same circumstances and possessing the same knowledge as
Officer Jones could have believed that probable cause existed to arrest her pursuant
to Ala. Code § 20-2-190(c)(2). Furthermore, Ms. Carver has not cited any binding

10

“While intent is an element of the crime which must be proved at trial, it is not
necessary in order to establish probable cause to arrest.” U.S. v. Everett, 719 F.2d 1119, 1120
(11th Cir. 1983); Jordan v. Mosley, 487 F.2d 1350, 1356 (11th Cir. 2007) (this “circuit has
concluded that, even for a criminal statute that requires proof of an intent to defraud for a
conviction, an arresting officer does not need evidence of the intent for probable cause to arrest
to exist”).

25

authority suggesting that the arguable probable cause standard is not reached under
these undisputed facts. Instead, Ms. Carver’s Opposition to the Defendants’ Motion
for Summary Judgment merely asserts that “the Defendants conduct in this matter
violated her Constitutional rights under the 4th and 14th Amendment to be free from
unreasonable seizures.” (Doc. 16 at 4). Simply put, Ms. Carver never went beyond
the pleadings in answering the Defendants’ Motion. See Celotex, 477 U.S. at 324. As
a result, Officer Jones’s Motion is due to be granted as to Ms. Carver’s false arrest
claims.
bb.

Officers Green and Woods

Defendants’ Motion is also due to be granted as to Ms. Carver’s § 1983 claims
for unlawful arrest against Officers Green and Woods. Here, the undisputed evidence
establishes that Officers Green and Woods had no personal participation in Ms.
Carver’s arrest on May 16, 2011. In fact, Officer Woods’s involvement in the case
began the day after Ms. Carver’s arrest, when he was contacted by the city prosecutor
to investigate the facts forming the basis of the criminal complaint and warrant
executed against Ms. Carver. Similarly, Officer Green’s employment with Pell City
ended in 2010, before Ms. Carver’s arrest. (Doc. 13-1 at 2). Officer Green merely
signed the criminal complaint and did not participate in the arrest. Because Officer
Green did not participate in the arrest and was only involved in the issuance of the

26

warrant, which constitutes legal process, Ms. Carver cannot state a claim against
Officer Green for false arrest. See Carter v. Gore, 557 F. App’x 904, 906 (11th Cir.
2014) (holding that a plaintiff’s only claim against the officer who submitted an
affidavit to secure a warrant was for malicious prosecution, not false arrest).
Consequently, Officers Woods and Green’s Motion as to Ms. Carver’s claims for false
arrest is due to be granted.
ii.

Excessive Force Claims

In addition to her federal unlawful arrest claims, Ms. Carver also asserts that the
Defendant Officers used excessive force in violation of her rights secured by the
Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. (Doc.
1 at 4). The court finds that the Defendants’ Motion is due to be granted as to Ms.
Carver’s excessive force claims. The Plaintiff’s Response to Defendants’ Motion for
Summary Judgment fails to contest the entry of summary judgment on her excessive
force claims. Therefore, Ms. Carver has abandoned her excessive force claims against
the Defendant Officers. See, e.g., Wilkerson, 270 F.3d at 1322. However, even if Ms.
Carver had not abandoned her claims for excessive force, these officers are entitled
to judgment as a matter of law for the following reasons.
bb.

Officer Jones

27

Ms. Carver alleges that Officer Jones used excessive force against her in
violation of her constitutional rights. In response to Ms. Carver’s claims, the
Defendants note that Ms. Carver’s excessive force claim is based solely on her
contention that the handcuffs were too tight and uncomfortable (doc. 14 at 15), and
contend that Ms. Carver’s physical restraint and handcuffing was de minimis (doc. 14
at 16). The undisputed facts establish that Officer Jones executed the warrant for Ms.
Carver’s arrest on May 16, 2011. (Doc. 13-2 at 3). Officer Jones handcuffed Ms.
Carver with her hands behind her back and transported her to the Pell City Police
Department. (Doc. 13-2 at 3). Ms. Carver’s handcuffs were “finger tight,” meaning
that Officer Jones was able to place a finger between the inside of the cuffs and Ms.
Carver’s wrist. (Doc. 13-2 at 3). Her handcuffs were double locked and unable to
become any tighter. (Doc. 13-2 at 3). Ms. Carver does not provide any other evidence
that “excessive force” was used by Officer Jones. Indeed, some force by a police
officer when making a custodial arrest is not only lawful, but necessary, and the
application of de minimis force, without more, will not support a claim for unlawful
force. See Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003) (“the application
of de minimis force, without more, will not support a claim for excessive force in
violation of the Fourth Amendment”).

28

The Eleventh Circuit has held that “a claim that any force in an illegal stop or
arrest is excessive is subsumed in the illegal stop or arrest claim and is not a discrete
excessive force claim.” Jackson v. Sauls, 206 F.3d 1156, 1171 (11th Cir. 2000) (citing
Williamson v. Mills, 65 F.3d 155, 158-59 (11th Cir. 1995)). The right to make an
arrest “necessarily carries with it the right to use some degree of physical coercion or
threat to effect it.” Grahm v. Connor, 490 U.S. 386, 389 (1989). “An excessive force
claim evokes the Fourth Amendment’s protection against the use of an unreasonable
quantum of force (i.e., non-de minimis force unreasonably disproportionate to the
need) in effecting an otherwise lawful arrest.” Bashir v. Rockdale County Ga., 445
F.3d 1323, 1332 (11th Cir. 2006). “When properly stated, an excessive force claim
presents a discrete constitutional violation relating to the manner in which an arrest
was carried out, and is independent of whether law enforcement had the power to
arrest.” Id. “A claim like [Ms. Carver’s] that the [Officers] used excessive force in the
arrest because they lacked the right to make the arrest is not a discrete constitutional
violation; it is dependent upon the inseparable from [her] unlawful arrest claim.” Id.
(citing Jackson v. Sauls, 206 F.3d 1156, 1171 (11th Cir. 2000)). “[W]here an
excessive force claim is predicated solely on allegations the arresting officer lacked
the power to make arrest, the excessive force claim is entirely derivative of, and is
subsumed within, the unlawful arrest claim.” Id. Because Ms. Carver’s excessive force

29

claim is based only on the fact that she was handcuffed, not that an unreasonable
quantum of force was used under the circumstances, Ms. Carver failed to present a
discrete excessive force claim. Therefore, her excessive force claims against Officer
Jones fail as a matter of law.
cc.

Officers Woods and Green

Ms. Carver also asserts claims against Officers Woods and Green for the use
of excessive force. As noted above, Ms. Carver failed to present a discrete excessive
force claim against Jones, the arresting officer. Additionally, it is undisputed that
neither Officer Woods nor Officer Green was present at the time of her arrest. It is
also undisputed that neither Officer Green or Officer Woods ever touched her.
Although “an officer who is present at the scene and fails to take reasonable steps to
protect the victim of another officer’s use of excessive force can be held liable for his
nonfeasance,” Riley v. Newton, 94 F.3d 632, 635 (11th Cir. 1996), the undisputed facts
establish Officer Jones did not use excessive force and that neither Officer Green nor
Officer Woods was present during Ms. Carver’s arrest. Consequently, Defendants’
Motion as to Ms. Carver’s excessive force claims against Officers Woods and Green
is also due to be granted for this alternative reason.
B.

State Law Claims

30

In addition to her federal claims against the Defendants, Ms. Carver also asserts
a number of state law claims against the Defendants, including claims for negligence,
malicious prosecution, false arrest, and false imprisonment. (Doc. 1 at 5, 7). Like her
federal claims, Ms. Carver failed to contest the entry of summary judgment on a
number of her state law claims. Therefore, Ms. Carver has abandoned the claims that
she did not address in her response to the Defendants Motion for Summary Judgment.
See, e.g., Wilkerson, 270 F.3d at 1322. In addition to the fact that Ms. Carver
abandoned a number of her claims, the Defendants’ Motion is alternatively due to be
granted because her claims fail as a matter of law.
1.

Negligence

Ms. Carver alleges that “[o]n the incident date, the Defendants’ (James Leo
Jones, Richard Woods, and Franklin Green) aforementioned acts of unwanted
touching of Plaintiff were without reasonable justification or excuse, breached said
defendants’ duty not to touch Plaintiff in the manner they did, individually and in
concert with one-another, and proximately caused Plaintiff to suffer the
aforementioned harm and damages on and following the incident date.” (Doc. 1 at 5).
Then, in her response to the Defendants’ Motion, Ms. Carver “maintains that the
Defendants acted negligently, not only in failing to verify the information in the
pharmacy log and in obtaining an erroneous arrest warrant but also in the more than

31

twenty-four months it took to serve the Plaintiff with said warrant.” (Doc. 16 at 5).
Although the Plaintiff’s complaint purportedly asserts a claim for negligence, the
Defendants’ Motion treats her negligence claim as an assault and battery claim. The
Defendants argue that their Motion is due to be granted because Ms. Carver cannot
prove the elements of the torts of “assault” or “battery,” that Officer Jones had a
warrant based on probable cause, and that the Defendant Officers are immune from
liability.
Under the doctrine of state agent immunity, a public actor, such as a law
enforcement official, who is exercising discretionary authority is immune from claims
that merely allege negligence, unskillfulness, or carelessness with respect to injuries
arising out of those functions. Ex Parte City of Tuskegee, 932 So. 2d 895, 906 n. 6
(Ala. 2005) (“Although Arnold alleges that John Moon and Theodor Moon were
negligent, there is no allegation that their conduct leading to her arrest and the arrest
itself falls outside the scope of an action that involves the exercise of discretion or
judgment.”); see also Ala. Code § 6-5-338(a); Ex parte Kennedy, 992 So. 2d 1276,
1281 (Ala. 2008) (“the test for determining whether an officer is entitled to immunity
under § 6-5-338(a) is the one articulated in Cranman relating to State officers”).
Because of the comparable analysis applicable to state agent immunity, summary
judgment in favor of the Defendants as to Ms. Carver’s state law claims is similarly

32

appropriate for the reasons that the defense of qualified immunity protects them under
federal law.
In particular, as the Supreme Court of Alabama has restated the rule of state
agent immunity:
A state agent [such as a municipal police officer] shall be immune
from civil liability in his or her personal capacity when the conduct made
the basis of the claim against the agent is based upon the agent’s . . .
(4) exercising judgment in the enforcement of the criminal
laws of the State, including, but not limited to, lawenforcement officers’ arresting or attempting to arrest
persons, or . . .
Ex Parte Cranman, 792 So. 2d 392, 405 (Ala. 2000) (emphasis in original). Immunity
under § 6-5-338(a) is not absolute; instead, “immunity from tort liability under § 6-5338(a) ‘is withheld if an officer acts with willful or malicious intent or in bad faith.’”
Ex Parte City of Tuskegee, 932 So. 2d 895, 906-07 (Ala. 2005) (citing Borders v. City
of Huntsville, 875 So. 2d 1168, 1178 (Ala. 2003)).
A state agent shall not be immune from civil liability in his or her
personal capacity
(1) when the Constitution or laws of the United States, or the
Constitution of this State, or laws, rules, or regulations of this State
enacted or promulgated for the purpose of regulating the activities of a
governmental agency require otherwise; or
(2) when the State agent acts willfully, maliciously, fraudulently, in bad
faith, beyond his or her authority, or under a mistaken interpretation of
the law.
33

Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000).
The Plaintiff’s response to the Defendants’ Motion makes clear that her
negligence claim is based on these officers’ allegedly inadequate investigation prior
to obtaining a warrant. (Doc. 16 at 5). It is clear that these officers were engaged in
a discretionary function when investigating Ms. Carver’s pseudoephedrine purchases.
Ex Parte City of Tuskegee, 932 So. 2d 895 (citing Wright v. Wynn, 682 So. 2d 1, 2
(Ala. 1999)) (“Discretionary acts are defined as ‘those acts to which there is no hard
and fast rule as to the course of conduct that one must or must not take and those acts
requiring the exercise in judgment and choice and involving what is proper under the
circumstances.’”). Further, the Plaintiff does not dispute that neither of the exceptions
to state agent immunity apply. Therefore, the court finds that state agent immunity
protects these officers from exposure to personal liability for Ms. Carver’s state law
claim for negligence. Because “[i]t is well established that, if a municipal police
officer is immune pursuant to § 6-5-338(a), then pursuant to § 6-5-338(b), the city by
which he is employed is also immune,” City of Tuskegee, 932 So. 2d at 910 (citing
Howard, 887 So. 2d at 211), Pell City is also immune from Ms. Carver’s negligence
claim.
2.

Malicious Prosecution

34

Ms. Carver also asserts a claim that “Defendants, maliciously and without
probable cause therefor, caused the Plaintiff to be arrested on the charge of illegal
purchase of pseudoephedrine.” (Doc. 1 at 7).11 “In order to establish a claim for
malicious prosecution” under Alabama law, “a plaintiff must prove (1) that a judicial
proceeding was initiated by the defendant against the plaintiff, (2) that the judicial
proceeding was initiated without probable cause, (3) that the judicial proceeding was
initiated by the defendant with a malicious intent, (4) that the judicial proceeding
terminated in the plaintiff’s favor, and (5) that the plaintiff suffered damage as a result
of the defendants’ initiation of the judicial proceeding.” Wesson v. Wal-Mart Stores
East, L.P., 38 So. 3d 746, 750 (Ala. Civ. App. 2009) (citing Phillips v. K-Mart Corp.,
682 So. 2d 1390, 1393 (Ala. Civ. App. 1996)). Here, the Defendants argue that there
is a lack of evidence to support Ms. Carver’s malicious prosecution claim.
Specifically, the Defendants argue that Ms. Carver cannot prove the first three
elements of her claim for malicious prosecution. In response to the Defendants’
Motion, Ms. Carver neither (1) showed that the record in fact contained supporting
evidence sufficient to withstand a directed verdict motion, nor (2) proffered evidence
sufficient to withstand a directed verdict motion at trial based on the alleged
evidentiary deficiency. See Fitzpatrick, 2 F.3d at 1116-17. For example, to

11

Ms. Carver presents no argument to defend her malicious prosecution claims.
Accordingly, they were abandoned.

35

demonstrate that no officer acted with the requisite malicious intent, the Defendants
presented evidence that neither Officer Green nor Officer Jones knew Ms. Carver
before her arrest and that neither had ill will towards her. (Doc. 13-1 at 3; Doc. 13-2
at 3). Further, Officer Woods merely investigated Ms. Carver’s arrest, encouraged
charges to be dismissed, and did not initiate any legal process against her. (Doc. 13-3
at 2-3). Ms. Carver failed to dispute any of the Defendants’ factual allegations.
Additionally, for the above mentioned reasons, these officers are entitled to state agent
immunity. Accordingly, her malicious prosecution claims against these officers fail
as a matter of law.
3.

False Arrest and False Imprisonment

The Defendants’ Motion is also due to be granted as to Ms. Carver’s state law
false arrest and false imprisonment claims.12 Under Alabama law, “if an arrest is made
pursuant to a warrant issued by a lawfully authorized person, neither the arrest nor the
subsequent imprisonment is considered ‘false.’” Karrick v. Johnson, 659 So. 2d 77,
79 (Ala. 1995) (citing Goodwin v. Barry Miller Chevrolet, Inc., 543 So. 2d 1171 (Ala.
1989); see also Montgomery v. City of Montgomery, 732 So. 2d 305 (Ala. 1999) (“The
law in Alabama is clear that a plaintiff is not entitled to recover for false arrest or
imprisonment when he or she is arrested pursuant to a valid warrant issued by a

12

Ms. Carver presents no argument to defend her false imprisonment claims
Accordingly, they were abandoned.

36

lawfully authorized person.”); Ennis v. Beason, 537 So. 2d 17, 19 (Ala. 1988).
Because Officer Jones arrested Ms. Carver pursuant to the warrant issued by
Magistrate Wheeler, neither Ms. Carver’s arrest nor subsequent imprisonment was
legally false. Additionally, for the above-mentioned reasons, these Defendant Officers
are entitled to state agent immunity. Accordingly, and for the aforementioned reasons,
the Defendants’ Motion is due to be granted as to Ms. Carver’s state law claims for
false arrest and false imprisonment.
4.

Intentional Infliction of Emotional Distress

Count II of Ms. Carver’s complaint alleges that the Defendants’ conduct
“consisted of unprivileged conduct that was intentional and of an extreme or
outrageous nature which proximately caused Plaintiff to suffer severe emotional
distress.” (Doc. 1 at 5). The Defendants contend that the Plaintiff did not establish the
prima facie elements to state a claim of intentional infliction of emotional distress and
that they are immune from liability as a matter of law. (Doc. 14 at 29).13 Alabama law
provides that “[a] state agent shall be immune from civil liability in his or her personal
capacity when the conduct made the basis of the claim against the agent is based upon
the agent’s . . . exercising judgment in the enforcement of the criminal laws of the
State, including, but not limited to, law-enforcement officers’ arresting or attempting

13

Ms. Carver presents no argument to support her intentional infliction of emotional
distress claims against the Defendants. Accordingly, they were abandoned.

37

to arrest persons.” Ex Parte Butts, 775 So. 2d 173 (Ala. 2000); see also Ala. Code §
6-5-338. Here, the officers were engaged in a discretionary function and Ms. Carver
has not presented any evidence or cited any authority that they acted intentionally or
recklessly. Put simply, Ms. Carver did not present any evidence to support a claim for
intentional infliction of emotional distress, and the officers accordingly are entitled
to judgment as a matter of law.
IV. CONCLUSION
For all of the forgoing reasons, the Motion is due to be granted as to all of Ms.
Carver’s claims. The court will enter a separate final judgment order consistent with
this memorandum opinion.
DONE and ORDERED this the 8th day of January, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

38