Brannon et al v. Gadsden, City of et al
Filing
178
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/30/2018. (JLC)
FILED
2018 Mar-30 PM 02:51
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
MARY BRANNON, et al.,
Plaintiffs,
v.
ETOWAH COUNTY COURT
REFERRAL PROGRAM, LLC, et
al.,
Defendants.
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)
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) Case No.: 4:13-CV-1229-VEH
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MEMORANDUM OPINION
I.
INTRODUCTION AND PROCEDURAL HISTORY
Plaintiffs1 initiated this civil rights lawsuit and purported class action on July
1, 2013, against Defendants City of Gadsden (“COG”), the Etowah County Court
Referral Program, LLC (the “ECCRP”), and the ECCRP’s Executive Director,
Lenesha Zaner (“Ms. Zaner”).2 (Doc. 1). Plaintiffs have amended their complaint
1
The six Plaintiffs currently in the case are Mary Brannon as the personal representative for
the estate of Kimberly L. Brannon (“Ms. Brannon”), Joseph R. Dubose (“Mr. Dubose”), Dustin A.
Loyd (“Mr. Loyd”), Jason L. Lynn (“Mr. Lynn”), Erica Snow (“Ms. Snow”), and Roy Myers (“Mr.
Myers”).
2
Initially, this lawsuit also involved additional Plaintiffs who had brought similar claims
against the City of Attalla (“COA”), the ECCRP, and Ms. Zaner. However, on May 20, 2015, the
Court severed all the claims of the Attalla Plaintiffs from this action–Hunter, et al. v. City of Attalla,
et al., No. 4:15-CV-0839-VEH. (Doc. 70). Mr. Loyd is a Plaintiff in this action as well as in the
severed Hunter case.
multiple times. The last version was filed on April 9, 2015. (Docs. 22, 43, 45, 63). By
virtue of the pro tanto stipulated dismissal entered on July 12, 2017 (doc. 171), COG
is no longer a party to this action.
Pending before the Court is the Amended/Corrected Motion for Summary
Judgment (doc. 162) (the “Motion”) filed by the remaining Defendants–Ms. Zaner
and the ECCRP–on June 30, 2017. The Court has reviewed the parties’ filings offered
in support of and opposition to the Motion. (Docs. 136, 137, 139-1, 140, 142, 143,
163-67, 172). For the reasons set out below, the Motion is granted in part and
otherwise denied or termed as moot.
II.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. FED. R . CIV. P.
56(a). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). “Once the moving party has properly supported its motion for
summary judgment, the burden shifts to the nonmoving party to ‘come forward with
specific facts showing that there is a genuine issue for trial.’” International Stamp
2
Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
III.
FACTUAL BACKGROUND3
All Plaintiffs have been convicted and/or pled guilty to one or more
misdemeanor offensives within the jurisdiction of the Gadsden Municipal Court (the
“GMC”). Plaintiffs’ civil rights suit challenges Defendants’ practices under a court
referral program (the “CRP”) that the GMC ordered Plaintiffs to participate in as a
requirement of their probation and a suspension of their sentences tied to their
misdemeanor cases.
Plaintiffs have summarized their respective GMC and CRP proceedings (doc.
163 at 9-33 ¶¶ 1-105) as follows:4
3
Keeping in mind that 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,
the Court provides 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.
4
The nature of this Court’s opinion on summary judgment does not require it to address the
bulk of the voluminous facts admitted and/or contested by the parties. Instead, the Court’s analysis
turns upon the additional undisputed facts proposed by Plaintiffs that Defendants have not objected
to in their reply. The designation “CAF” stands for a fact added by the Court that helps to clarify the
status of the evidentiary record before it on summary judgment.
3
MS. BRANNON
On April 3, 2008, Ms. Brannon was sentenced by the GMC on a misdemeanor
charge of unlawful possession of drug paraphernalia (MC08-0033). Ms. Brannon
received a suspended 180-day jail sentence and, as a condition of her probation, the
GMC ordered her to enroll in the CRP.
On November 21, 2008, Ms. Brannon was charged with DUI. On December
18, 2008, an order of contempt was stamped on Ms. Brannon’s case action summary
sheet and she was ordered to serve five days in jail. There is no written order from the
GMC requiring Ms. Brannon to restart or return to the CRP. At the same time, the
record lacks any evidence of a written order from the GMC indicating that Ms.
Brannon’s obligation to complete the CRP was no longer a condition of her
suspended sentence for her unlawful possession case. CAF.
Ms. Brannon was booked into jail on December 18, 2008, pursuant to the
contempt order issued by the GMC (pertaining to her DUI charge while still on
probation for her unlawful possession charge). She was released on December 23,
2008. On August 19, 2009, the ECCRP issued a return to court form notifying the
GMC that Ms. Brannon had been terminated from the CRP for failure to report for
two color-code drug screens and because she allegedly received a new DUI charge
on July 31, 2009.
4
The form also requested the GMC to issue a warrant for Ms. Brannon’s arrest.
On August 28, 2009, a warrant was issued for Ms. Brannon on case number
TR08-4028. The warrant was executed on October 20, 2009.
On October 20, 2009, Ms. Brannon was also sentenced on case number
TR08-4028. She received a 60-day jail sentence and an order for 24-months of
probation. She was also ordered to enroll in the CRP.
On January 12, 2010, the ECCRP issued a return to court form, referencing
both of Ms. Brannon’s case numbers, notifying the GMC that Ms. Brannon had been
terminated from the CRP because she had provided a diluted sample for a drug test
and had trace amounts of marijuana in her sample. The form also requested the GMC
to issue a warrant for her arrest.
On February 17, 2010, the GMC issued a warrant for Ms. Brannon on case
number MC08-0033–the unlawful possession case. The warrant was executed on
March 24, 2010, and Ms. Brannon was arrested. Ms. Brannon spent one day in jail,
as she was released on the same day.
On April 15, 2011, the ECCRP issued a return to court form, referencing both
of Ms. Brannon’s case numbers, notifying the GMC that Ms. Brannon had been
terminated from the CRP because she had not attended enough self-help meetings,
had failed to report for multiple color-code drug screens, and produced an altered
5
sample. The form also requested the GMC to issue a warrant for her arrest.
On May 5, 2011, Ms. Brannon was arrested and served five days in jail. She
was released on May 10, 2011. There is no written contempt order nor is there a
written order to restart, resume, or return to the CRP. At the same time, the record
lacks any evidence of a written order from the GMC indicating that Ms. Brannon’s
obligation to complete the CRP was no longer a condition of her suspended sentence
for either one of her misdemeanor cases. CAF.
On May 16, 2011, the ECCRP issued a return to court form notifying the GMC
that Ms. Brannon had failed to report to the CRP after her release from jail on May
10, 2011. The form also requested the GMC to issue a warrant for her arrest.
On January 26, 2012, the ECCRP issued a return to court form notifying the
GMC that Ms. Brannon had been terminated from the CRP because of her failure to
report for two color-code drug screens. The form also requested the GMC to issue a
warrant for her arrest.
Spanning the course of four years, there is only one contempt order stamped
on Ms. Brannon’s case action summaries. There are no written orders from the GMC
that require Ms. Brannon to restart, resume, or return to the CRP after she had been
terminated from it due to noncompliance. Likewise, there are no written probation
revocation orders, probation extension orders, or orders extending Ms. Brannon’s
6
suspended sentence(s). At the same time, the record lacks any evidence of a written
order from the GMC indicating that Ms. Brannon’s obligation to complete the CRP
was no longer a condition of her suspended sentence for either one of her
misdemeanor cases. CAF.
As noted above, Ms. Brannon received a suspended sentence in her original
case (MC08-0033) on March 3, 2008. Ms. Brannon contends that the statutory
maximum period for probation, the suspended sentence, and/or her compliance with
the CRP should have expired on March 3, 2010, for that possession of drug
paraphernalia offense. Ms. Brannon additionally received a suspended sentence in her
second misdemeanor case (TR08-8028) on October 20, 2009. Ms. Brannon contends
that the statutory maximum period for that DUI case expired on October 20, 2011.
Ms. Brannon continued to be subjected to the CRP requirements until at least
January 2012. After October 20, 2011, Ms. Brannon was scheduled for at least one
CRP evaluation, monitored by the ECCRP at least fifteen times, color-coded at least
fifteen times, called by the ECCRP at least once, returned to the GMC at least twice,
and required to attend the CRP self-help meetings. Ms. Brannon was also charged
drug testing fees, monitoring fees, and/or late fees at least 38 times. Ms. Brannon
maintains that she was also arrested and incarcerated as a direct result of her failure
or inability to comply with the CRP requirements after the statutory maximum period
7
had expired.
MR. DUBOSE
On October 6, 2009, Mr. DuBose was sentenced by the GMC on a
misdemeanor charge of DUI (TR09-2369). Mr. DuBose received a suspended
180-day jail sentence and, as a condition of probation, was ordered to enroll in the
CRP.
On January 15, 2010, Mr. DuBose received from the ECCRP and signed a
notice requiring him to appear in the GMC on January 21, 2010, because of testing
positive for opiates. That same notice has a contempt stamp from the GMC dated
January 21, 2010, showing that Mr. DuBose was found in contempt and ordered to
serve five days in jail. The GMC record does not show any contempt stamps at all.
On March 31, 2010, the ECCRP issued a return to court form notifying the
GMC that Mr. DuBose had been terminated from the CRP because he failed to attend
a required monitoring session, treatment assessment, and color-code drug screening.
The form also requested the GMC to issue a warrant for Mr. DuBose’s arrest.
On April 28, 2010, the GMC issued a warrant for Mr. DuBose’s arrest. The
warrant was executed on May 13, 2010, and Mr. DuBose was arrested. There is no
written order from the GMC requiring Mr. DuBose to restart, resume, or return to the
CRP after his termination from it, his subsequent arrest, and release from jail. At the
8
same time, the record lacks any evidence of a written order from the GMC indicating
that Mr. DuBose’s obligation to complete the CRP was no longer a condition of his
suspended sentence for his DUI case. CAF.
Mr. DuBose returned to the ECCRP on May 19, 2010, when he signed a new
color-code agreement. On February 7, 2011, the ECCRP issued a return to court form
notifying the GMC that Mr. DuBose has been terminated from the CRP for his failure
to attend required monitoring sessions and his failure to report for a color-code drug
screen. The form also requested the GMC to issue a warrant for his arrest for these
CRP violations.
The GMC issued the warrant on February 23, 2011. The warrant was executed
on May 8, 2011, and Mr. DuBose was arrested. Mr. Dubose served twelve days in the
county jail and on May 20, 2011, he was released to Rapha, a mental health and
substance abuse treatment center located in Attalla, Alabama. Mr. DuBose was
released from Rapha on August 27, 2011, and his written “exit information” does not
mention anything about needing to report back to the ECCRP to complete the CRP.
After the ECCRP provided the GMC with notice of Mr. DuBose
noncompliance with the CRP in February 2011, there is no written order from the
GMC requiring Mr. DuBose to restart, resume, or return to the CRP upon his release
from Rapha. At the same time, the record lacks any evidence of a written order from
9
the GMC indicating that Mr. DuBose’s obligation to complete the CRP was no longer
a condition of his suspended sentence for his DUI case. CAF.
On September 27, 2011, Mr. DuBose returned to the ECCRP and signed a new
color-code agreement and a new CRP case management plan. On May 10, 2012, the
ECCRP issued a return to court form notifying the GMC that Mr. DuBose had been
terminated from the CRP due to his failure to attend required monitory sessions and
his failure to report for color-code drug screens. The form also requested the GMC
to set a show cause hearing.
In January of 2013, Mr. DuBose appeared in the GMC and requested to serve
out the remainder of his sentence in jail. There are no written orders by the GMC for
Mr. DuBose to restart, resume, or return to the CRP after he was terminated multiple
times for noncompliance. There are likewise no written probation revocation orders,
probation extension orders, or orders extending the suspended sentence from the
GMC. At the same time, the record lacks any evidence of a written order from the
GMC indicating that Mr. DuBose’s obligation to complete the CRP was no longer a
condition of his suspended sentence for his DUI case. CAF.
As noted above, Mr. DuBose received a suspended sentence for his DUI case
on October 6, 2009. Mr. DuBose maintains that because there are no written
revocation or extension orders from the GMC, the statutory maximum period for
10
probation, suspended sentence, and/or compliance with the CRP for his case expired
on October 6, 2011.
Mr. DuBose continued to be subjected to the CRP requirements until, at least,
May 20, 2012. After October 6, 2011, he was color-coded at least 21 times, scheduled
for at least one monitoring session, required to report to the ECCRP at least four
times, called by the ECCRP at least one time, returned to GMC at least once, and
required to attend self-help meetings. Mr. DuBose was also required to pay drugtesting fees, monitoring fees, and/or late fees at least ten times. Mr. DuBose maintains
that he was also arrested and incarcerated as a direct result of his failure or inability
to comply with the CRP requirements after the statutory maximum period had
expired.
MR. LOYD
On July 1, 2003, Mr. Loyd appeared before the GMC on two misdemeanor
charges (MC03-222 and MC03-223). According to the Order of Suspended Sentence
entered by the GMC, Mr. Loyd was sentenced to 30 days in jail, which was
suspended, and 24-months of unsupervised probation. Mr. Loyd also was ordered to
attend a substance abuse program. Apparently, Mr. Loyd enrolled in the CRP run by
the ECCRP for his substance abuse treatment. CAF.
On September 2, 2004, the ECCRP issued a return to court form referencing
11
only case number MC03-222 and notifying the GMC that Mr. Loyd had been
terminated from the CRP for failure to report for color-code drug screens “since he
was returned to [it] in July.” There are no written orders from the GMC ordering Mr.
Loyd to return to the CRP at any time. At the same time, the record lacks any
evidence of a written order from the GMC indicating that Mr. Loyd’s obligation to
complete the CRP was no longer a condition of his suspended sentence for his
misdemeanor case(s).5 CAF.
On September 22, 2009, the ECCRP issued a return to court form notifying the
GMC that Mr. Loyd had been terminated from the CRP with respect to case number
09-461, which is an Attalla Municipal Court case. Neither of Mr. Loyd’s case
numbers pending before the GMC from 2003 are referenced on this typed order,
except for a handwritten note on the bottom that reads “11-24-09, GM Ct. 5 days
contempt; walk over upon release MC03-222-PI.”
In a footnote, Plaintiffs speculate that this handwritten reference to MC03-222PI indicates that Mr. Loyd was found in contempt by the GMC and ordered to serve
5 days in jail. However, there is no typed contempt order from the GMC pertaining
to MC03-222-PI. Additionally, there is no typed order from the GMC requiring Mr.
5
The record suggests that one of Mr. Loyd’s misdemeanor charges–MC03-223–may have
been dropped and that the charge in MC03-222 is the only one in which he received a suspended
sentence. However, the Court cannot tell for certain from the record what transpired with MC03-223.
12
Loyd to “walk over upon release,” restart, resume, or return to the CRP in either of
Mr. Loyd’s 2003 GMC cases.
On November 24, 2009, Mr. Loyd was arrested. He was released on November
29, 2009. There are no written orders from the GMC ordering Mr. Loyd to restart,
resume, or return to the CRP after this arrest and release from jail. At the same time,
the record lacks any evidence of a written order from the GMC indicating that Mr.
Loyd’s obligation to complete the CRP was no longer a condition of his suspended
sentence for his misdemeanor case(s). CAF.
On April 1, 2010, the ECCRP issued a return to court form referencing three
case numbers, including MC03-222, and notifying the GMC that Mr. Loyd had been
terminated from the CRP for failure to report after his release from jail on March 3,
2010. The form also requested the GMC to issue a warrant for Mr. Loyd’s arrest.
On March 1, 2011, there is a notation in Mr. Loyd’s ECCRP Case Management
Contact Record that he is to “re-enroll per Judge Rhea.” This contact record has three
case numbers written on the top, including MC03-222. This notation does not clearly
indicate for which case or cases Mr. Loyd was ordered to re-enroll. There also is no
written order from the GMC for MC03-222 requiring Mr. Loyd to “re-enroll” in the
CRP. At the same time, the record lacks any evidence of a written order from the
GMC indicating that Mr. Loyd’s obligation to complete the CRP was no longer a
13
condition of his suspended sentence for his misdemeanor case(s). CAF.
On March 14, 2011, Mr. Loyd signed a new color-code agreement with the
CRP, but there are no case numbers indicated on the agreement. On November 3,
2011, the ECCRP issued a return to court form referencing two case numbers,
including MC03-222, and notifying the GMC that Mr. Loyd had been terminated
from the CRP for failure to report for color-code drugs screens. The form also
requested the GMC to issue a warrant for Mr. Loyd’s arrest.
On February 3, 2012, the ECCRP issued a return to court form, referencing
three case numbers, including MC03-222, and notifying the GMC that Mr. Loyd had
been terminated from the CRP for his failure to re-enroll after he was released from
Attalla City Jail. The form also requested the GMC to issue a warrant for Mr. Loyd’s
arrest. There are no written court orders in MC03-222 requiring Mr. Loyd to re-enroll
in the CRP after an arrest or release from the Attalla City Jail. At the same time, the
record lacks any evidence of a written order from the GMC indicating that Mr. Loyd’s
obligation to complete the CRP was no longer a condition of his suspended sentence
for his misdemeanor case(s) upon his release from the Attalla City Jail. CAF.
On March 27, 2012, Mr. Loyd signed a new color-code agreement with the
ECCRP. This document lacks any reference to any pending case numbers. On April
13, 2012, the ECCRP noted on a return to court form, referencing MC03-222, that
14
this case had been closed per Judge King’s order. The form was not sent to the GMC.
There are no written orders from the GMC for Mr. Loyd to restart, resume, or
return to the CRP after he was terminated for noncompliance with the CRP or arrested
and placed in the Attalla City Jail. There are likewise no written probation revocation
orders or orders extending the suspended sentence from the GMC. At the same time,
the record lacks any evidence of a written order from the GMC indicating that Mr.
Loyd’s obligation to complete the CRP was no longer a condition of his suspended
sentence for his GMC misdemeanor case(s). CAF.
As noted above, Mr. Loyd received a suspended sentence on March 13, 2003.
Mr. Loyd maintains that because there are no written revocation or extension orders
from the GMC, the statutory maximum term for probation, the suspended sentence,
and/or compliance with the CRP expired on March 13, 2005.
Mr. Loyd continued to be subjected to the CRP requirements until his GMC
case was closed on April 13, 2012. After March 13, 2005, Mr. Loyd was color-coded
at least 18 times, scheduled for at least one evaluation, monitored by the ECCRP at
least three times, required to report to the ECCRP at least two times, was called by
the ECCRP at least one time, returned to GMC at least twice, and required to attend
self-help meetings. Mr. Loyd was also required to pay drug-testing fees, monitoring
fees, and/or late fees at least seven times.
15
MR. LYNN
On January 25, 2007, Mr. Lynn appeared before the GMC on a misdemeanor
DUI case (TR06-5143). Mr. Lynn received a 180-day jail sentence, which was
suspended, and 24-months of probation. He was also ordered to undergo a substance
abuse evaluation by the ECCRP.
On March 13, 2007, the ECCRP issued a return to court form notifying the
GMC that Mr. Lynn had been terminated from the CRP because he had failed to
report for two color-code drug screens. Ms. Zaner signed this form and requested the
GMC to issue a warrant for Mr. Lynn’s arrest.
On October 13, 2008, the GMC issued a warrant for Mr. Lynn’s arrest. On
August 29, 2009, the warrant was executed and Mr. Lynn was arrested. There is an
order of contempt stamped on Mr. Lynn’s GMC record showing that he was found
in contempt and ordered to serve 35 days.
Mr. Lynn served five days in the county jail and on September 1, 2009, he was
released to Rapha. Mr. Lynn was released from Rapha on October 23, 2009. Mr.
Lynn’s “exit information” from Rapha notes that he was supposed to report back to
the CRP upon his release from Rapha, but there is no written GMC order to that
effect. At the same time, the record lacks any evidence of a written order from the
GMC indicating that Mr. Lynn’s obligation to complete the CRP was no longer a
16
condition of his suspended sentence for his DUI case. CAF.
On October 26, 2009, Mr. Lynn signed a new color-code agreement with the
ECCRP and, on November 12, 2009, he signed a new case management plan. On
March 17, 2010, the ECCRP issued a return to court form notifying the GMC that Mr.
Lynn had been terminated from the CRP for failure to report for color-code drug
screening. The form, signed by Ms. Zaner, also requested the GMC to issue a warrant
for Mr. Lynn’s arrest.
On April 12, 2010, the GMC issued a warrant for Mr. Lynn’s arrest. The
warrant was executed on July 3, 2012, and Mr. Lynn was arrested. Mr. Lynn served
two days in jail and was released on July 5, 2012.
On July 12, 2012, Mr. Lynn’s case was closed per Judge King’s order. There
are no written GMC orders for Mr. Lynn to restart, resume, or return to the CRP after
he was terminated multiple times for noncompliance. There are likewise no written
GMC orders of probation revocation, probation extension, or extensions of the
suspended sentence. At the same time, the record lacks any evidence of a written
order from the GMC indicating that Mr. Lynn’s obligation to complete the CRP was
no longer a condition of his suspended sentence for his GMC misdemeanor DUI case.
CAF.
As set out above, Mr. Lynn was sentenced on January 25, 2007. Mr. Lynn
17
maintains that because there are no written revocation or extension orders from the
GMC, the statutory maximum period for probation, suspended sentence, and/or
compliance with the CRP expired on January 25, 2009. Mr. Lynn continued to be
subjected to the ECCRP requirements until his case was closed on July 12, 2012.
After January 25, 2009, Mr. Lynn was color-coded at least eleven times,
scheduled for at least one evaluation and three ECCRP monitoring sessions, was
called by the ECCRP at least once, required to report to the ECCRP at least twice, and
required to attend self-help meetings. Mr. Lynn was also required to pay drug-testing
fees, monitoring fees, and/or late fees at least ten times. Mr. Lynn maintains that he
was also arrested and incarcerated as a direct result of his failure or inability to
comply with the CRP requirements after the statutory maximum period had expired.
MR. MYERS
On March 3, 2006, Mr. Myers was sentenced by the GMC on a misdemeanor
charge of minor in possession of alcohol (MC06-0238). Mr. Myers received youthful
offender status, a suspended 30-day jail sentence, and was ordered to enroll in the
CRP.
On April 17, 2006, the ECCRP issued a return to court form notifying the GMC
that Mr. Myers had been terminated from the CRP because he failed to report for his
scheduled evaluation appointments. The form is signed by Ms. Zaner and she
18
requested that the GMC issue a warrant for Mr. Myers’s arrest.
On January 20, 2007, Mr. Myers was arrested and ordered to serve five days
in jail for contempt. There does not appear to be any written GMC order to re-start
or resume the CRP after his release. At the same time, the record lacks any evidence
of a written order from the GMC indicating that Mr. Myers’s obligation to complete
the CRP was no longer a condition of his suspended sentence for his GMC
misdemeanor case. CAF.
On September 27, 2007, the ECCRP issued a return to court form notifying the
GMC that Mr. Myers had been terminated from the CRP because he failed to report
for two color-code drug screens. Ms. Zaner signed the form and requested that the
GMC issue a warrant for his arrest. On March 3, 2008, an alias warrant was issued
for Mr. Myers. The alias warrant was executed on March 29, 2009, and Mr. Myers
was arrested. There do not appear to be any written orders from the GMC for Mr.
Myers to restart, resume, or return to the CRP after his termination due to his
noncompliance or his arrest and release. At the same time, the record lacks any
evidence of a written order from the GMC indicating that Mr. Myers’s obligation to
complete the CRP was no longer a condition of his suspended sentence for his GMC
misdemeanor case. CAF.
On December 1, 2009, the ECCRP issued a return to court form notifying the
19
GMC that Mr. Myers had been terminated from the CRP because he failed to report
for three color-code drug screens. The form also requested that the GMC issue a
warrant for his arrest.
On January 15, 2010, a warrant was issued for Mr. Myers’s arrest. The warrant
was executed and Mr. Myers was arrested on February 11, 2010. He served five days
for contempt and was released on February 16, 2010.
On February 11, 2010, an order of contempt was stamped on Mr. Myers’s case
action summary sheet finding Mr. Myers in contempt of compliance with the CRP
and ordering him to serve five days in jail. There does not appear to be a written order
from the GMC for Mr. Myers to restart, resume, or return to the CRP following his
termination from the CRP or his arrest and release from jail. At the same time, the
record lacks any evidence of a written order from the GMC indicating that Mr.
Myers’s obligation to complete the CRP was no longer a condition of his suspended
sentence for his GMC misdemeanor case. CAF.
On March 15, 2010, the ECCRP issued a return to court form notifying the
GMC that Mr. Myers has been terminated from the CRP because he failed to report
to three color-code drug screens. Ms. Zaner signed this form and she requested that
the GMC issue a warrant for Mr. Myers’s arrest.
On April 12, 2010, a warrant was issued for Mr. Myers’s arrest. The warrant
20
was executed on April 29, 2010, and Mr. Myers was arrested. He was released from
jail on May 9, 2010.
On June 3, 2010, the ECCRP issued a return to court form notifying the GMC
that Mr. Myers had been terminated from the CRP because he failed to attend an
evaluation appointment and he failed to report for a color-code screening. The form
also requested that the GMC issue a warrant for Mr. Myers’s arrest. On June 8, 2010,
a warrant was issued for Mr. Myers’s arrest. On January 22, 2011, the warrant was
executed and Mr. Myers was arrested.
On January 25, 2011, an order of contempt was stamped on Mr. Myers’s case
action summary sheet finding him in contempt of compliance with the CRP and
ordering him to serve five days in jail. There does not appear to be a written order
from the GMC for Mr. Myers to restart, resume, or return to the CRP. At the same
time, the record lacks any evidence of a written order from the GMC indicating that
Mr. Myers’s obligation to complete the CRP was no longer a condition of his
suspended sentence for his GMC misdemeanor case. CAF.
Mr. Myers was released from jail on January 28, 2011. On this date, Mr. Myers
was also reactivated in the CRP. On February 15, 2011, the ECCRP issued a return
to court form notifying the GMC that Mr. Myers had been terminated from the
program because he failed to attend an evaluation. The form also requested that the
21
GMC issue a warrant for Mr. Myers’s arrest.
On March 4, 2011, the GMC issued a warrant for Mr. Myers’s arrest. The
warrant was executed and Mr. Myers was arrested on the same day. Mr. Myers served
30 days in jail and was released on April 4, 2011.
There does not appear to be any written revocation orders or orders of contempt
in this instance. Nor does there appear to be any written order requiring Mr. Myers
to restart, resume, or return to the CRP. At the same time, the record lacks any
evidence of a written order from the GMC indicating that Mr. Myers’s obligation to
complete the CRP was no longer a condition of his suspended sentence for his GMC
misdemeanor case. CAF.
On April 26, 2011, the ECCRP issued a return to court form notifying the GMC
that Mr. Myers had been terminated from the CRP because he failed to attend an
evaluation and because he failed to report for three color-code screens. There is a
request for the GMC to issue a warrant for Mr. Myers’s arrest.
On April 29, 2011, a warrant was issued for Mr. Myers’s arrest. On June 27,
2011, the warrant was executed and Mr. Myers was arrested. Mr. Myers was in jail
until July 1, 2011, when he was released to Rapha for substance abuse treatment. Mr.
Myers stayed there until July 26, 2011.
On July 26, 2011, the day he was released from Rapha, Mr. Myers signed a
22
new color-code agreement with the ECCRP. Mr. Myers also signed a case
management plan with the ECCRP on August 5, 2011. The record does not include
any written orders from GMC for Mr. Myers to restart, resume, or return to the CRP.
At the same time, the record lacks any evidence of a written order from the GMC
indicating that Mr. Myers’s obligation to complete the CRP was no longer a condition
of his suspended sentence for his GMC misdemeanor case. CAF.
On October 12, 2011, the ECCRP issued a return to court form notifying the
GMC that Mr. Myers had been terminated from the CRP because he failed to report
for three color-code drug screens. The form requested the GMC to issue a warrant for
Mr. Myers’s arrest.
There are no GMC written orders for Mr. Myers to restart, resume, or return to
the CRP after any of his terminations from the CRP. There are likewise no written
probation revocation or extension orders from the GMC. At the same time, the record
lacks any evidence of a written order from the GMC indicating that Mr. Myers’s
obligation to complete the CRP was no longer a condition of his suspended sentence
for his GMC misdemeanor case. CAF.
As noted above, Mr. Myers was sentenced on March 3, 2006. Mr. Myers
maintains that because there are no written revocation or extension orders from the
GMC, the statutory maximum term for probation and/or compliance with the CRP
23
expired on March 3, 2008. In total, Mr. Myers served well beyond the 30-days in jail
he was originally sentenced to, between various contempt orders and the time he
served in jail and at Rapha.
Mr. Myers continued to be subjected to the CRP requirements until, at least,
October 12, 2011. After March 3, 2008, he was color-coded at least 34 times,
scheduled for at least two ECCRP evaluations, monitored by the ECCRP at least four
times, required to report to the ECCRP at least seven times, was called by the ECCRP
at least two times, returned to GMC at least six times, and required to attend self-help
meetings. Mr. Myers maintains he was also required to pay drug-testing fees,
monitoring fees, and/or late fees at least thirteen times. Mr. Myers further asserts that
he was arrested and incarcerated as a direct result of his failure or inability to comply
with the CRP requirements after the statutory maximum period had expired.
MS. SNOW
On September 13, 2007, Ms. Snow appeared before the GMC on a
misdemeanor charge (MC07-1361). She received youthful offender status, a deferred
sentence of 12 months, and was ordered to enroll in the CRP.
On October 17, 2007, the ECCRP issued a return to court form notifying the
GMC that Ms. Snow had been terminated from the CRP for failure to report to
evaluation appointments. The form, signed by Ms. Zaner, also requested the GMC to
24
“remove the defendant’s ‘to be dismissed’ status” and issue a warrant for her arrest.
On April 14, 2008, the GMC issued a warrant for Ms. Snow’s arrest. The
warrant was executed and Ms. Snow was arrested on March 15, 2009. Ms. Snow
served 17 days in jail and was released on April 2, 2009.
There is no written GMC order requiring Ms. Snow to restart, resume, or return
to the CRP after her termination due to noncompliance and release from jail. At the
same time, the record lacks any evidence of a written order from the GMC indicating
that Ms. Snow’s obligation to complete the CRP was no longer a condition of her
suspended sentence for her GMC misdemeanor case. CAF.
On June 18, 2009, the ECCRP issued a return to court form notifying the GMC
that Ms. Snow had been terminated from the program for her failure to report for
color-code drug screening. The form, signed by Ms. Zaner, also requested the GMC
to issue a warrant for Ms. Snow’s arrest.
On July 23, 2009, the GMC issued a warrant for Ms. Snow’s arrest. On March
22, 2010, the warrant was executed and Ms. Snow was arrested. A contempt order
was stamped on the GMC record on March 25, 2010, finding Ms. Snow in contempt
and ordering her to serve five days in jail. Ms. Snow was released on March 28, 2010.
There is no GMC written order requiring Ms. Snow to restart, resume, or return
to the CRP after her termination due to her noncompliance and her release from jail.
25
At the same time, the record lacks any evidence of a written order from the GMC
indicating that Ms. Snow’s obligation to complete the CRP was no longer a condition
of her suspended sentence for her GMC misdemeanor case. CAF.
On May 3, 2010, the ECCRP issued a return to court form notifying the GMC
that Ms. Snow had been terminated from the CRP because she tested positive for
marijuana and failed to report to color-code drug screens. The form also requested the
GMC to issue a warrant for Ms. Snow’s arrest.
On May 20, 2010, the GMC issued a warrant for Ms. Snow’s arrest. On June
25, 2010, the warrant was executed and Ms. Snow was arrested. Ms. Snow was
released from jail on July 22, 2010. Again, there is no GMC written order requiring
Ms. Snow to restart, resume, or return to the CRP after her termination due to
noncompliance and/or her release from jail. At the same time, the record lacks any
evidence of a written order from the GMC indicating that Ms. Snow’s obligation to
complete the CRP was no longer a condition of her suspended sentence for her GMC
misdemeanor case. CAF.
On August 18, 2010, the ECCRP issued a return to court form notifying the
GMC that Ms. Snow had been terminated from the CRP because she failed to report
for evaluations and color-code drug screening. The form, signed by Ms. Zaner, also
requested the GMC to issue a warrant for Ms. Snow’s arrest.
26
On September 8, 2010, the GMC issued a warrant for Ms. Snow’s arrest. On
March 3, 2011, the warrant was executed and Ms. Snow was arrested. Ms. Snow
served five days and was released from jail on March 8, 2011.
On April 6, 2011, the ECCRP issued a return to court form notifying the GMC
that Ms. Snow had been terminated from the CRP because of a positive drug
screening and failing to appear for an evaluation. On April 14, 2011, Ms. Snow was
arrested in the GMC and was released 15 days later, on April 29, 2011.
On May 16, 2011, the ECCRP issued a return to court form notifying the GMC
that Ms. Snow had been terminated from the CRP for failure to attend an evaluation
appointment. The form also requested the GMC to issue a warrant for her arrest. The
warrant was executed on June 3, 2012, and Ms. Snow was arrested. This time, Ms.
Snow served a 180-day sentence and was released on December 1, 2012.
There are no GMC written orders for Ms. Snow to restart, resume, or return to
the CRP after being terminated for noncompliance. At the same time, the record lacks
any evidence of a written order from the GMC indicating that Ms. Snow’s obligation
to complete the CRP was no longer a condition of her suspended sentence for her
GMC misdemeanor case. CAF.
On September 13, 2007, Ms. Snow received a 12-month deferred prosecution.
However, Ms. Snow did not serve her 180-day sentence until five years later. Ms.
27
Snow maintains that the twenty-four month statutory maximum term for probation,
suspended sentences, and/or compliance with the CRP expired on September 13,
2009.
Ms. Snow continued to be subjected to the CRP requirements until June 3,
2012, when she served out the entirety of her sentence. After September 13, 2009,
Ms. Snow was color-coded at least 18 times, scheduled for at least three evaluations,
required to come to the ECCRP at least seven times, terminated at least five times,
and required to attend self-help meetings. Ms. Snow also was required to pay drugtesting fees, monitoring fees, and/or late fees at least eight times. Ms. Snow asserts
that she was also arrested and incarcerated a number of times as a direct result of her
failure or inability to comply with the ECCRP requirements after the statutory
maximum period had expired.
IV.
PRELIMINARY ISSUES
Before turning to the merits of Defendants’ Motion, the Court will first
determine which claims Plaintiffs have abandoned and which claims Plaintiffs are
still contesting on summary judgment.
Plaintiffs’ Relevant Claims
Plaintiffs’ third amended and restated complaint has 21 separate counts
(asserting both federal and state law claims), 359 paragraphs, and 97 pages. (See
28
generally Doc. 63). Expressly referencing Counts One, Seven, and Seventeen (as well
as other allegations), Plaintiffs maintain in their opposition to the Motion that “the
gravamen of [their] complaint . . . [is that] [Ms.] Zaner and ECCRP routinely restarted
each of the plaintiffs on ECCRP requirements without and/or beyond orders to do so
and beyond any conceivable statutory maximum allowable by law.” (Doc. 163 at 35).
Plaintiffs then attempt to clarify which of their claims they believe are (due to
various procedural developments) beyond the scope of Defendants’ Motion:
As a result of the bifurcation of this case from the Cantrell v.
Attalla case, and in conjunction with the discovery obtained and the
arguments made in support of summary judgment, the following counts
in Plaintiffs’ Third Amended Complaint [Doc. 63] are no longer
pertinent to this motion for summary judgment [Doc. 162]: Counts
Four, Six, Nine, Ten, Twelve, Thirteen, Fifteen, Sixteen, Nineteen, and
Twenty. Similarly, the parties [filed] a joint stipulation of dismissal
dismissing the City of Gadsden as a party to this action [Doc. 63],
rendering the following counts associated with the City of Gadsden
irrelevant to this motion for summary judgment [Doc. 162]: Counts
Two, Five, Eight, Eleven, Fourteen, and Eighteen.
(Doc. 163 at 35 n.5).
Based upon the foregoing footnote, the Court (by process of elimination) has
identified those counts that Plaintiffs have indicated remain relevant to this Motion.6
Those five counts (which Plaintiffs omitted from the above summary) are Counts
One, Three, Seven, Seventeen, and Twenty-One. However, because Count Three
6
All counts identified by Plaintiffs as “irrelevant” have been abandoned by them.
29
involves only the Attalla Plaintiffs and the COA (doc. 63 at 46-49 ¶¶ 155-166), this
particular count also falls outside the scope of Defendants’ Motion, leaving only four
counts pursued by these Plaintiffs against these Defendants.
The two federal counts not abandoned by Plaintiffs thus are:7
Plaintiffs’ Federal Constitutional Counts8
!
7
Count One–Denial of Due Process Under the Fourteenth Amendment by
the ECCRP and/or Ms. Zaner in her Personal Capacity Applicable to All
Plaintiffs (doc. 63 at 39-43 ¶¶ 129-142);9 and
Plaintiffs claim proximately-caused damages in the last paragraph of each constitutional
count:
[L]oss of liberty and injury to dignity by being arrested, incarcerated, and subjected
to additional fines, costs, and ECCRP requirements and fees.
(Doc. 63 at 43 ¶ 142; id. at 61 ¶ 217).
8
As this Court explained earlier in the litigation, any federal claims brought against Ms.
Zaner in her official capacity are duplicative of those claims brought against the ECCRP. See, e.g.,
Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (“In contrast to individual capacity
suits, when an officer is sued under Section 1983 in his or her official capacity, the suit is simply
another way of pleading an action against an entity of which an officer is an agent.” (footnote and
internal quotation marks omitted) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)));
Kentucky, 473 U.S. at 166-67 (“When it comes to defenses to liability [in a § 1983 action], an
official in a personal-capacity action may, depending on his position, be able to assert personal
immunity defenses, such as objectively reasonable reliance on existing law.”). Therefore, the § 1983
question that remains for Ms. Zaner is to what extent a triable issue exists regarding her personal
liability to Plaintiffs for allegedly violating their Fourteenth and Eighth Amendment rights.
9
The Court notes that Count One of Plaintiffs’ third amended and restated complaint
contains fleeting references to Plaintiffs’ due process rights guaranteed by the Fifth Amendment and
Alabama law in addition to the Fourteenth Amendment. (Doc. 63 at 40 ¶ 130). The Fifth
Amendment prohibits due process violations by the federal government and, therefore, cannot apply
here. While Plaintiffs’ allegations potentially trigger Alabama constitutional concerns, Plaintiffs have
made no effort to develop any state constitutional theory in their opposition brief. Thus, Plaintiffs
have abandoned any comparable state due process claim, and the Court has appropriately focused
30
!
Count Seven–Violation of the Eighth Amendment by the ECCRP and/or
Ms. Zaner in her Personal Capacity Applicable to All Plaintiffs (id. at
58-61 ¶¶ 202-217).10
Plaintiffs’ remaining counts include:
State Law Count
!
Count Seventeen–Negligent, Reckless and/or Wanton Training and/or
Supervision by the ECCRP and/or Ms. Zaner Applicable to All Plaintiffs
(id. at 87-88 ¶¶ 329-333); and
Injunctive Count
!
Count Twenty-One–Injunctive Relief (id. at 93-95 ¶¶ 352-359).
Those counts that Plaintiffs agree are subject to dismissal in light of
Defendants’ Motion and the prior dismissal of the COG are Counts Two, Four, Five,
Eight, Ten, Eleven, Thirteen, Fourteen, Sixteen, Eighteen, and Twenty. Thus,
Defendants’ Motion is due to be granted as conceded and/or uncontested with respect
to Counts Four, Ten, Thirteen, Sixteen, and Twenty. Further, Counts Two, Five,
Eight, Eleven, Fourteen, and Eighteen are due to be dismissed in accordance with the
upon an evaluation of the Fourteenth Amendment due process part of Count One only.
10
The Court notes that Count Seven contains a reference to the Alabama Constitution. (Doc.
63 at 58-59 ¶ 206). While Plaintiffs’ allegations potentially trigger Alabama constitutional concerns,
Plaintiffs have made no effort to pursue any state constitutional theory in their opposition brief.
Instead, they only identify cruel and unusual punishment under the Eighth Amendment as a possibly
viable claim. Thus, Plaintiffs have abandoned any comparable state constitutional claim, and the
Court has appropriately focused upon an evaluation of the Eighth Amendment part of Count Seven
only.
31
previously entered stipulated dismissal as those claims all pertain solely to the COG.
V.
ANALYSIS
A.
Plaintiffs’ Fourteenth and Eighth Amendment Claims
1.
Plaintiffs have not carried their burden to show
a triable claim under either the Fourteenth or
Eighth Amendment.
Defendants begin the argument section of their opening brief by pointing to the
absence of proof supporting Plaintiffs’ alleged constitutional harms:
In ruling on ECCRP’s Motion to Dismiss the Second Amended
Complaint, the Court was required to and did “assume the veracity of
well-pleaded factual allegations.” At summary judgment, however, the
Plaintiffs are required to prove their claims by affirmative, substantial
evidence. This is a burden that they cannot meet, and a close
examination of the evidentiary record reveals a total lack of factual
support for Plaintiff[s’] allegations against ECCRP.
(Doc. 162 at 22-23).11
Plaintiffs generally respond that Defendants unconstitutionally caused each of
them to remain subject to the CRP’s requirements beyond the two-year maximum
period for misdemeanor probation under Alabama law. As urged in their brief,
Defendants “re-enrolled or restarted each Plaintiff in the[] [CRP] on multiple
occasions beyond two years from their sentence date and without or in excess of court
orders [from the GMC].” (Doc. 163 at 39). Consistent with the Court’s preliminary
11
All page references to Doc. 162 correspond with the Court’s CM/ECF numbering system.
32
issues section, Plaintiffs expressly identify two federal constitutional provisions
which they contend Defendants’ conduct triggers–the Due Process Clause of the
Fourteenth Amendment and cruel and unusual punishment prohibited by the Eighth
Amendment. Id.
Before evaluating the parties’ competing constitutional positions, the Court
discusses three Alabama laws that are implicated in this case–Alabama’s Mandatory
Treatment Act of 1990 (the “AMTA”), Ala. Code §§ 12-23-1–12-23-19, Alabama’s
Probation Statute (the “APS”), Ala. Code § 15-22-54, and Alabama’s Municipal
Court Probation Statute (the “AMCPS”), Ala. Code § 12-14-13.
Ala. Code § 12-23-2 describes AMTA’s legislative purpose:
The Legislature finds that the high incidence of crimes which directly
involve alcohol and drugs in this state is intolerable; that the problems
of alcohol and drug abuse among the citizens of Alabama are extensive
and exist at an unacceptable level; that alcohol and/or drug abuse or
dependency have been identified as contributing factors in the
commission of many crimes; that a concentrated and coordinated state
and local effort is needed to address the needs of Alabamians regarding
such problems; that a specialized system for screening, evaluating,
educating, and rehabilitating defendants convicted of alcohol and drug
related offenses is required to address such problems; and that adequate
funding should be provided for this purpose. It is therefore the intent of
the Legislature:
To establish a specialized court referral officer program to promote the
evaluation, education and rehabilitation of persons whose use or
dependency on alcohol or drugs directly or indirectly contributed to the
commission of an offense for which they were convicted in state or
municipal courts and to establish mandatory alcohol and drug abuse
33
treatment programs to provide treatment and rehabilitation for these
identified offenders.
Ala. Code § 12-23-2 (emphasis added). The ECCRP is a creature of the AMTA. See
Ala. Code § 12-23-4(a) (describing role of the Administrative Director of Courts in
approving “individuals or entities to provide alcohol and drug assessment for courts
and to conduct the court referral programs in each court jurisdiction of the state”);
Ala. Code § 12-23-4(b) (setting forth duties of court referral officers).
The APS establishes various parameters that apply to probation or suspension
of a criminal sentence. The key provision of the APS at issue in this case is § 15-2254(a):
(a) The period of probation or suspension of execution of sentence shall
be determined by the court and shall not be waived by the defendant,
and the period of probation or suspension may be continued, extended,
or terminated. However, . . . in no case shall the maximum probation
period of a defendant guilty of a misdemeanor exceed two years, nor
shall the maximum probation period of a defendant guilty of a felony
exceed five years. When the conditions of probation or suspension of
sentence are fulfilled, the court shall, by order duly entered on its
minutes, discharge the defendant.
Ala. Code § 15-22-54(a) (emphasis added).
The AMCPS provides in full:
(a) Municipal courts may suspend execution of sentence and place a
defendant on probation for varying periods of time, not to exceed two
years.
(b) The court may require such investigations as may be deemed
34
necessary and desirable to be made by a probation officer or such other
suitable person or persons as the court may designate as to the
circumstances of the offense and the criminal record, social history and
present condition of the defendant.
(c) The court may suspend the execution of sentence and continue the
defendant under an existing bond or may require such additional bail as
it deems necessary pending the disposition of the application for
probation.
(d) The court shall determine and may, at any time, modify the
conditions of probation and may require the probationer to comply with
the following or any other conditions:
(1) To avoid injurious or vicious habits;
(2) To avoid persons or places of disreputable or harmful
character;
(3) To report to the probation officer or other person
designated by the judge;
(4) To permit the officer to visit him at his home or
elsewhere;
(5) To work faithfully at suitable employment as far as
possible;
(6) To remain within a specified area;
(7) To pay the fine and costs imposed or such portions
thereof as the judge may determine and in such
installments as the judge may direct;
(8) To make reparation or restitution to any aggrieved party
for the damage or loss caused by his offense in an amount
to be determined by the court; and
35
(9) To attend defensive driving schools, alcohol
countermeasure programs or courses where available and
support his dependents to the best of his ability.
(e) The probation or other officer designated by the court shall
investigate all cases when directed to do so by the court and report in
writing thereon if the court so directs. The officer, if so designated, shall
furnish to each probationer released on probation under his supervision
a written statement of the conditions of probation and shall instruct the
probationer regarding the same. Such officer shall keep informed
concerning the conduct and conditions of each person on probation
under his supervision by visiting the probationer and requiring reports
from the probationer or others and shall report thereon in writing as
often as the court may require. Such officer shall use all practicable and
suitable methods, not inconsistent with the conditions imposed by the
court, to aid and encourage persons on probation and to bring about
improvement in their conduct and condition. Such officer shall keep
detailed records of his work and shall make such reports in writing as
the court may require. The officer so designated shall have, in the
execution of his duties, the power to arrest probationers and the same
right to execute process as is given by law to peace officers.
(f) All reports, records and data assembled by any probation officer and
referred to the court shall be privileged and shall not be available for
public inspection except upon order of the court to which the same was
referred. All probation reports completed and filed shall be subject to
inspection by the defendant or his attorney.
(g) The period of probation or suspension of execution of sentence shall
be determined by the court and may exceed the length of the sentence,
and such period may be extended a period of two years from date of
sentencing.
(h) Upon the satisfactory fulfillment of the conditions of probation or
suspension of sentence, the court shall, by order duly entered on the
minutes, discharge the defendant.
(i) At any time during the period of probation or suspension of execution
36
of sentence, the court may issue a warrant and cause the defendant to be
arrested for violating any of the conditions of probation or suspension
of sentence. Any probation officer with probable cause to believe a
probationer has violated the conditions of probation may arrest such
probationer without a warrant. In case of an arrest without a warrant, the
probation officer shall prepare a written statement setting forth that the
probationer has, in his judgment, violated the conditions of probation,
and said statement shall be sufficient warrant for having probationers
brought forthwith before the court for determination as to probable
cause for the charge of probation violation. The court may order
detention of the probationer pending further hearing, after which the
court may revoke the probation or suspension of sentence and order and
adjudge that the sentence be immediately executed.
Ala. Code § 12-14-13 (emphasis added).
Against this backdrop, Plaintiffs premise both of their constitutional claims on
the theory that Defendants have violated Alabama law by requiring each of them to
remain subject to the CRP’s requirements beyond the two-year maximum period
applicable to suspended sentences for misdemeanor violations. However, Plaintiffs
have not offered any federal case authority in their opposition brief to support
Defendants’ constitutional liability for either federal claim.12 Instead, this section of
12
Plaintiffs do reference quoted language from a GMC Policies & Procedures Standing
Order entered on July 13, 2016, to support their position. That Standing Order’s section governing
termination of probation provides in pertinent part that:
The Court may suspend execution of a defendant’s sentence and place the defendant
on probation for varying periods of time, not to exceed two years. . . .
Regardless of whether a defendant remains in compliance with the conditions of his
probation throughout the prescribed term, any period of probation imposed in
connection with a sentence entered by the Court shall terminate as a matter of law
two years from the date of sentencing.
37
Plaintiffs’ brief focuses upon Defendants’ failure to adhere to the requirements of the
Alabama Administrative Office of Courts Court Referral Officer Field Manual (the
“CROFM”) and the AMTA in failing to “check the status of Plaintiffs’ probation.”13
(Doc. 163 at 40).
Plaintiffs cite to various parts of the CROFM to show that Defendants had a
responsibility to monitor those probationers who were referred to the CRP. (See Doc.
167-2 at 17 § II.E (“Reviews sentence and probation requirements with a defendant
and monitors participants for compliance, providing follow-up support as
necessary.”); id. at 45 § 5.b (“Check legal status [including] . . . [c]urrent probationary
Any person whose period of probation is terminated as a matter of law two years
from the date of sentencing shall, upon such termination, be excused from further
compliance with the terms or conditions of his or her probation officer (or other
person designated by the judge) in connection with his or her probation.
(Doc. 136-5 at 11-12 (emphasis added)). (NOTE: All page references to Doc. 136-5 correspond
with the Court’s CM/ECF numbering system.)
Plaintiffs do not in any way attempt to explain how a Standing Order entered in state court
(well after their constitutional claims had accrued and their lawsuit was filed) can retroactively create
a federal interest subject to protection by the Fourteenth or Eighth Amendment. Thus, the Court is
not persuaded to rely upon the contents of the GMC Standing Order as adequate authority to
establish a cognizable federal claim.
13
In the fact section of their brief, Plaintiffs cite to ALA. R. CRIM. P. 26.3(a). (Doc. 163 at
8 ¶ 178). This Alabama criminal rule of procedure governs presentence reports and makes no
mention of calculating probation terms. Instead, the non-felony subpart states only that “[t]he court
may require a presentence report in all cases in which it has either discretion over the penalty to be
imposed or authority to suspend execution of the sentence.”ALA. R. CRIM. P. 26.3(a)(1). Plaintiffs,
once again, make no effort to explain how this non-substantive rule establishes the unlawfulness of
Defendants’ conduct under either state or federal law.
38
status[.]”)). However, Plaintiffs fail to point to any provision of the CROFM which
expressly requires Defendants to calculate the maximum probation period and/or
verify the maximum time remaining on a criminal defendant’s probation term. (Doc.
163 at 40, 46). Further, Defendants’ obligation to confirm the “status designation
(juvenile, youthful offender, other)” (doc. 167-2 at 45)14 of a probationer, is not the
equivalent of a duty to track that person’s maximum probation period. Nor does
language requiring Defendants to check the legal status of a probationer
straightforwardly signify such a duty. (id. at 45-46 § 5.a-c).
In fact, at the end of the “MONITORING PROCEDURE” section, the
CROFM states:
Once the defendant has successfully completed all monitoring
sessions, a certificate of completion should be issued, and the court
should be formally notified of completion. The court copy (canary) of
the OTC [Order To Complete] or a copy of the certificate of completion
may be used as the formal notification of successfully completing the
Court Referral Program.
(Doc. 167-2 at 46). Thus, the CROFM makes no reference to any requirement that
completion of the CRP must occur within a probationer’s maximum probation period.
Likewise, when Ms. Zaner was asked during her deposition if she had “any
responsibility to monitor the length of time that someone is – one of your clients,
14
All page references to Doc. 167-2 correspond with the Court’s CM/ECF numbering
system.
39
municipal court defendants, is involved in probation?” (doc. 141-7 at 20 at 79),15 she
responded, “I don’t know how I could properly monitor that.” Id. Ms. Zaner also
stated, “I’m assuming it’s the same for everyone unless you take into account the
tolling period. I mean, I don’t know about all that.” (Id. at 80 (emphasis added)); id.
(Ms. Zaner’s stating that “I don’t think I’m qualified [to make that calculation].”)).
Thus, neither the CROFM nor Ms. Zaner’s testimony establishes that Defendants
disregarded an express duty to track a probationer’s maximum probation period.
Further, the Court has been unable to locate where the AMTA imposes such
an express obligation on court referral officers. (See Doc. 163 at 40 (citing to Ala.
Code § 12-2[3]-2, et seq.)). Section 12-23-7 of the AMTA mentions probation, but
does not mandate that court referral officers keep track of a defendant’s maximum
probation term. Finally, Plaintiffs’ citation to Ala. Code § 12-14-1 as support (doc.
163 at 40) appears to be a mistake, as that section does not even mention probation
and, instead, pertains to the establishment and jurisdiction of Alabama municipal
courts. Thus, Plaintiffs have failed to establish that Defendants had a duty to track
Plaintiffs’ maximum probation periods under Alabama law.
However, even when accepting that the AMTA (or another statute) makes
15
The first page references to Doc. 141-7 correspond with the Court’s CM/ECF numbering
system.
40
Defendants responsible for ensuring compliance with the maximum probation term,
Plaintiffs still have not demonstrated why that matters from a federal constitutional
standpoint. “To obtain relief under 42 U.S.C. § 1983, [Plaintiffs] must show (1) that
[Defendants] deprived [them] of a right secured under the Constitution or federal law
and (2) that the deprivation occurred under color of state law.”16 Willis v. Univ.
Health Servs., Inc., 993 F.2d 837, 840 (11th Cir. 1993) (emphasis added) (citing Sims
v. Jefferson Downs Racing Assoc., Inc., 778 F.2d 1068, 1076 (5th Cir. 1985)). Thus,
assuming that Plaintiffs are correct that Defendants violated a statutory duty to track
their probation terms, the Court nevertheless finds that Plaintiffs’ attempt to show a
triable due process or cruel and unusual punishment claim fails. In the absence of
referencing a federal case (factually comparable to theirs) in which either
constitutional right was recognized, or at least listing what elements support either
of their constitutional counts along with identifying any corresponding proof that a
16
Here, Plaintiffs claim that the nexus/joint action test (through Defendants’ relationship
with the AMTA and the Administrative Office of Courts) provides the necessary state-actor link for
§ 1983. (See Doc. 163 at 42 (citing Willis v. Univ. Health Servs., Inc., 993 F.2d 837 (11th Cir.
1993)); see also Willis, 993 F.2d at 840 (“The nexus/joint action test applies where ‘the state has so
far insinuated itself into a position of interdependence with the [private party] that it was a joint
participant in the enterprise.’” (quoting National Broadcasting Co., Inc. v. Communications Workers
of America, AFL–CIO, 860 F.2d 1022, 1026-27 (11th Cir. 1988))). Defendants (who are private
parties) have not contested the presence of cognizable state action pursuant to § 1983 under this test.
(See generally Doc. 172 (mentioning nothing about Plaintiffs’ inability to show state action in
Defendants’ reply)); see also Filarsky v. Delia, 566 U.S. 377, 383 (2012) (“Anyone whose conduct
is ‘fairly attributable to the state’ can be sued as a state actor under § 1983.” (quoting Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982))).
41
reasonable jury could consider, Plaintiffs’ federal claims are fatally underdeveloped.
Cf. Flanigan’s Enters., Inc. v. Fulton County, 242 F.3d 976, 987 n.16 (11th Cir. 2001)
(holding that a party waives an argument if the party “fail[s] to elaborate or provide
any citation of authority in support” of the argument), superceded on other grounds
by county ordinance as stated in Buehrle v. City of Key W., 813 F.3d 973, 980 n.3
(11th Cir. 2015); Ordower v. Feldman, 826 F.2d 1569, 1576 (7th Cir. 1987) (stating
that an argument made without citation to authority is insufficient to raise an issue
before the court).
As the Court observed during the pleadings stage:
In redrafting, the court encourages Plaintiffs to refer to pattern jury
charges as a way to streamline their allegations and reduce the scope of
their currently cumbersome complaint into a more manageable and
plausible pleading. Plaintiffs are HEREBY CAUTIONED that their
failure to replead in a concise and meaningful manner may result in the
dismissal of one or more of their claims with or without prejudice.
(Doc. 62 at 37 (emphasis by underlining added)). Despite the Court’s early instruction
to focus on fundamentals, Plaintiffs’ opposition still lacks legal clarity as to why their
facts present a federal constitutional case. In fact, reading Plaintiffs’ brief reminds
this Court of the first two lines of Buffalo Springfield’s “For What It’s Worth”:
“There’s something happening here[.] But what it is ain’t exactly clear[.]”17 When a
17
See https://www.azlyrics.com/lyrics/buffalospringfield/forwhatitsworth.html.
42
defendant argues that a claim is factually and/or legally insufficient on summary
judgment, it is the plaintiff’s job, as the non-movant, to make it clear to the Court why
a triable claim does, in fact, exist. Scrutiny through a Rule 56 lens typically demands
much more from a plaintiff than a showing of Rule 12(b)(6) plausibility; an unclearly
developed claim is not a triable one. Here, Plaintiffs’ nebulous efforts do not satisfy
their Rule 56 burden to show how their facts, if proven to a jury, constitute a
cognizable claim under either the Fourteenth or the Eighth Amendment. Accordingly,
Defendants’ Motion is due to be granted as to Counts One and Seven in light of
Plaintiffs’ failure to carry their burden as the non-movants.18
2.
Plaintiffs’ constitutional claims also fail because
they have not demonstrated that their probation
terms violated state law.
According to Plaintiffs, the overall key to Defendants’ liability is that Plaintiffs
were subject to non-custodial supervision through the CRP for longer than the twoyear statutory maximum as provided for by the APS and the AMCPS. (Doc. 163 at
35). Although Plaintiffs have not pointed to any case authority that supports either
one of their constitutional theories, the Court has located a few cases that shed some
light as it pertains to their Fourteenth Amendment count.
18
The foregoing analysis also supports a dismissal of any purported state constitutional
claims that Plaintiffs have superficially alleged in Counts One and Seven.
43
“The Fourteenth Amendment provides that ‘[n]o State shall ... deprive any
person of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.’” Holt v. Glenn, 361 F. App’x
75, 77 (11th Cir. 2010) (emphasis added) (quoting U.S. Const., Amend. XIV § 1). In
United States v. Cornwell, 625 F.2d 686 (5th Cir. 1980),19 a probationer “assert[ed]
that the court’s extension of his probation period, without notice or a hearing,
constitute[d] a denial of due process.” Id. at 687. As legal support, the probationer
relied upon Gagnon v. Scarpelli, 411 U.S. 778 (1973). Id. The Supreme Court ruled
in Gagnon that “a probationer is entitled to notice and a hearing when a petition is
filed to revoke his probation.” Cornwell, 625 F.2d at 687 (citing Gagnon, 411 U.S.
at 782).
As the Cornwell court explained the Supreme Court’s reasoning in Gagnon:
The Supreme Court, in requiring hearings in connection with
probation revocations, relied upon its earlier decision in Morrissey v.
Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). In that
case, the Court held that the due process clause requires that an
individual on parole be afforded a hearing before his parole is revoked.
In determining whether the nature of the parolee’s interest was within
the Fourteenth Amendment protection of liberty or property, the court
stated:
The parolee has been released from prison based on
19
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
44
an evaluation that he shows reasonable promise of being
able to return to society and function as a responsible,
self-reliant person. Subject to the conditions of his parole,
he can be gainfully employed and is free to be with family
and friends and to form the other enduring attachments of
normal life. Though the State properly subjects him to
many restrictions not applicable to other citizens, his
condition is very different from that of confinement in a
prison. He may have been on parole for a number of years
and may be living a relatively normal life at the time he is
faced with revocation. The parolee has relied on at least an
implicit promise that parole will be revoked only if he fails
to live up to the parole conditions. In many cases, the
parolee faces lengthy incarceration if his parole is revoked.
We see, therefore, that the liberty of a parolee,
although indeterminate, includes many of the core values
of unqualified liberty and its termination inflicts a
“grievous loss” on the parolee and often on others.
(footnotes omitted.)
Id. at 482, 92 S. Ct. at 2600. Subsequently, in Gagnon v. Scarpelli,
supra, the Court held that the same guarantee of due process applies to
revocations of probation, since revocation of probation results in the
same loss of liberty.
Cornwell, 625 F.2d at 688.
The Cornwell court further explained that “[t]he Supreme Court has not
considered whether due process requires that an individual on probation be afforded
an opportunity to be heard when his probation is extended[.]” Id. After discussing the
decisions by the Third and Eighth Circuits that “rejected claims of a due process right
to a hearing in probation extensions[,]” the former Fifth Circuit held “that extension
45
of a ‘non-custodial period of supervision to a term within the statutory limits [does
not] implicate a liberty interest sufficient to require a preextension hearing as a
constitutionally commanded right.’” Id. (emphasis added) (quoting United States v.
Carey, 565 F.2d 545, 547 (8th Cir. 1977)); Cornwell, 625 F.2d at 688 (“The nature
of the interest and the loss resulting from extension simply do not parallel the
fundamental nature of the interest or the seriousness of the loss involved in Morrissey
and Gagnon.”).20
An arguably implicit holding of Cornwell is that an extension of a noncustodial period of supervision to a term beyond the statutory limits does (at least
potentially) implicate a cognizable federal liberty interest. Cf. also Ray v. Judicial
Correction Services, No. 2:12-CV-2819-RDP, Doc. 626 at 62 (N.D. Ala. Sept. 12,
2017) (concluding, based upon and Cornwell and Calhoun v. N.Y. State Div. of
Parole Officers, 999 F.2d 647 (2d. Cir. 1993), that “a reasonable jury could find that
JCS unconstitutionally extended Plaintiffs’ . . . probation sentences beyond the
statutory maximum without providing any notice to Plaintiffs of the extension or any
opportunity for a hearing”) (emphasis added).21 However, it is significant that in these
20
Although the Cornwell court found no due process violation, it nevertheless held “that
district courts shall hereafter provide notice to probationers of proposed extensions and advise
probationers that they have a right to a hearing before the court acts.” 625 F.2d at 689.
21
The scope of services provided by JCS as described in the Ray case is much broader than
the duties of Defendants here. More specifically, “JCS conducted many administrative and judicial
46
cases the potentially unconstitutional act is not extension of probation; rather, it is
lack of notice prior to such extension.
Therefore, at least as it pertains to their Fourteenth Amendment count,
Plaintiffs may have a viable due process claim if they can show that their noncustodial period of supervision by Defendants cannot legally exceed two years under
the AMTA (by reconciling it with the APS and the AMCPS) and that a reasonable
jury could conclude that Defendants’ supervision of them under the CRP did, in fact,
exceed that time period without any notice or an opportunity to be heard.
As to the first issue, Defendants point out that no court has held that a criminal
defendant’s compliance with the AMTA is subject to a two-year limitation like other
conditions of probation. Plaintiffs do not deal with this point directly. Rather, they
proceed as if a two-year limitation on compliance with the AMTA is an express
statutory provision (which it is not). Nonetheless, even if this Court assumes that the
AMTA must be read in conjunction with the APS and the AMCPS and is,
consequently, subject to a two-year limitation, Plaintiffs’ Fourteenth Amendment due
process claim (and also any arguable Eighth Amendment claim) still fails.
functions of the municipal court” (Ray, doc. 626 at 4 (internal quotation marks omitted)), and
allegedly violated due process rights by “the imposition of term of probation exceeding two years[.]”
(Id. at 5). Additionally, the most current operative complaint in Ray does not reference the AMTA
as an underlying statute applicable to Plaintiffs’ claims. (See generally Ray, Doc. 305 (Plaintiffs’
Fourth Amended and Restated Complaint) (N.D. Ala. Feb. 1, 2016)).
47
In Owens v. State, 728 So. 2d 673 (Ala. Crim. App. 1998), a probationer filed
a habeas petition that challenged “the district court’s revocation of his probation” on
the basis of the APS’s two-year limitation. Id. at 674, 675. The probationer’s criminal
court history in Owens is strikingly comparable to those of Plaintiffs. The probationer
had pled guilty to a misdemeanor offense on July 22, 1993, and “[h]e was sentenced
to 12 months’ imprisonment for each conviction, the sentences to run consecutively.”
Id. “The district court suspended the sentences, and placed the appellant on two years’
probation on the condition that he pay fines, costs, remuneration to the Crime Victims
Compensation Fund, and restitution, and that he attend a school for offenders who
have negotiated worthless instruments (“NWNI School”).” Id. “The district court
ordered the appellant to begin making payments on September 1, 1993.” Id.
Subsequently, the district court determined that the probationer was not in
compliance with the terms of his probation and issued warrants for his arrest. Id.
Those warrants were not executed until September 21, 1995. Id. On October 25,
1995, over two years after his original sentence, “the district court revoked the
appellant’s probation because he failed to pay the court-ordered assessments and
because he did not attend NWNI School.” Id. Rather than putting the probationer in
jail, “the district court suspended its revocation order and added more conditions to
his probation . . . .” Id.
48
The probationer subsequently failed to meet the terms of this new order and he
was served with an arrest warrant on July 2, 1997. Id. On July 22, 1997, four years
after the probationer’s original sentence, the district court held “a revocation hearing,
apparently revoking the appellant’s probation and ordering the appellant to ‘serve
out’ his fines and costs in jail at the rate of $15 per day.” Id.
The probationer claimed in his habeas petition that “the district court did not
have jurisdiction to revoke his probation because . . . his probationary term had
expired at the time of the July 22, 1997, revocation order.” Id. at 675. In reaching that
jurisdictional issue, the Alabama Criminal Court of Appeals, after examining several
different cases, defined “maximum probation period” to mean:
From our examination of the above cases, it is apparent that the
“maximum probationary period” a defendant can serve is no more than
a total of two years on probation for a misdemeanor conviction and a
total of five years on probation for a felony conviction. The trial court
retains jurisdiction to revoke a defendant’s probation if the revocation
proceedings are instigated during the actual court-ordered probationary
period, or before the end of the maximum statutorily allowed period.
The issuance of an arrest warrant is sufficient to initiate revocation
proceedings and to toll the running of the probation period.
Id. at 678 (emphasis added).
In overruling a prior APS case, the Owens court further clarified:
We also disagree with the majority’s apparent holding in Miller
that actual incarceration of a delinquent probationer is necessary to toll
the probation period—the majority determined that Miller’s initial arrest
was not sufficient to toll the running of the probationary period because
49
Miller was not incarcerated, but rather his probation was reinstated at
that point. This is contrary to the cases that preceded Miller. Moreover,
§ 15-22-54(d)(1) gives the trial court a number of options when a
probationer is delinquent—arrest is not the only option. We will not
place the trial court in the untenable position of having to incarcerate a
probationer simply to avoid losing jurisdiction.
Accordingly, we overrule our holding in Miller, and the cases
cited therein, to the extent that it implies that the maximum probation
period can never exceed two years from the date of sentencing for a
misdemeanor offense and five years from the date of sentencing for a
felony offense. In addition, we overrule our holding in Miller, however
implicit, that the “overt act” necessary to toll the running of the
probation period can be no less than the actual incarceration of a
delinquent probationer. As set out in § 15-22-54 and the pre-Miller
cases, there are several alternative methods by which probation
revocation proceedings can be initiated that will toll the running of the
probation period.
Owens, 728 So. 2d at 679-680 (emphasis added).
After undergoing this analysis, the Owens court determined that the district
court still had jurisdiction over the probationer when his probation was revoked. Id.
at 680. More specifically, as a result of the multiple intervening tolling periods, he
“had served approximately 18 1/2 months of the original 24-month probation.” Id.
Consequently, the probationer’s habeas petition was denied.
Here, Plaintiffs do not ever acknowledge the tolling aspect of their maximum
probation periods, and fail to factor in the multiple times in which the GMC issued
warrants for their arrest and/or Defendants sent return to court forms out for their
multiple violations of the CRP. Cf. Ala. Code § 12-23-8 (“Compliance with any order
50
authorized pursuant to this chapter relating to education and/or treatment may be
enforced by the court through exercise of its contempt powers; or, where made a
condition of probation, by revocation thereof for non-compliance.”) (emphasis
added). Instead, Plaintiffs simplistically add two years to the date of their respective
suspended sentences and maintain that Defendants have violated state law because
Plaintiffs were still subject to the CRP requirements after that two-year lapse in time.
As Owens reveals, however, Plaintiffs’ approach to calculating the maximum
probation period under the APS and the AMCPS is substantively wrong. Further, it
is not this Court’s responsibility to figure out the proper calculation for each one of
them. Instead, the burden is on Plaintiffs to come forward with evidence and authority
establishing both factually and legally why tolling of their maximum probation
periods by the GMC is not an issue for them.22 Plaintiffs have failed to do either.
Thus, the Motion is due to be granted on Plaintiffs’ Counts One and Seven for the
alternative reason that Plaintiffs have not shown that their time spent in the CRP
exceeded the two-year limitation for misdemeanor probation.23
22
The Court acknowledges that the Ray court found that a triable issue as to tolling
prevented summary judgment for JCS regarding due process. (Ray, Doc. 626 at 63). However in Ray,
“a reasonable jury could find from the summary judgment record that JCS invariably recalculated
probation following purported reinstatements by extending the sentence 24 months from the
reinstatement date.” Id. That caliber of evidence does not exist in this case.
23
The foregoing analysis also supports a dismissal of any purported state constitutional
claims that Plaintiffs have superficially alleged in Counts One and Seven.
51
3.
Plaintiffs’ constitutional counts alternatively fail
for lack of causation.
In Kentucky, the Supreme Court summarized the element of causation in a §
1983 action:
On the merits, 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. See, e.g., Monroe v. Pape, 365
U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). More is required in an
official-capacity action, however, for a governmental entity is liable
under § 1983 only when the entity itself is a “ ‘moving force’ ” behind
the deprivation, Polk County v. Dodson, 454 U.S. 312, 326, 102 S. Ct.
445, 454, 70 L. Ed. 2d 509 (1981) (quoting Monell, supra, 436 U.S., at
694, 98 S. Ct., at 2037); thus, in an official-capacity suit the entity’s
“policy or custom” must have played a part in the violation of federal
law.
473 U.S. at 166;24 see also Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986)
(“[S]ection 1983 requires proof of an affirmative causal connection between the
official’s acts or omissions and the alleged constitutional deprivation.”). Here, no
reasonable jury could conclude that Ms. Zaner caused Plaintiffs a deprivation under
the Fourteenth or Eighth Amendment, much less that Ms. Zaner or the ECCRP was
the moving force behind such violation(s).
Unlike the situation in Ray, Plaintiffs have pointed to no evidence that
Defendants affirmatively “extended . . . probation sentences for earlier charges by 24
24
In Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 663 (1978), the Supreme Court overruled
Monroe “insofar as it holds that local governments are wholly immune from suit under § 1983.”
52
months when the Municipal Court actually issued probation orders in different case.”
(Ray, Doc. 626 at 62). There also are no written orders from the GMC discharging
Plaintiffs from probation or indicating that they were not required to complete the
CRP. Consequently, there is no evidence that Defendants deviated from the GMC’s
orders by requiring Plaintiffs to participate in the CRP after the GMC had discharged
them from probation, discharged them from the CRP, and/or closed their
misdemeanor cases. Yet, the burden of proof is on Plaintiffs to prove each element
of their claims. (Cf. Ray, Doc. 626 at 62-63 (“Nothing in the Rule 56 record indicates
that JCS employees informed [the plaintiffs] of these modifications to their 2009 and
2011 probation sentences. Nor does the record reflect that the Municipal Court agreed
to these modifications.”)).
Unlike Ray, the record here lacks documentary evidence that Defendants
“invariably recalculated probation following purported reinstatements by extending
the sentence [of] 24 months from the reinstatement date.” (Ray, Doc. 626 at 63). The
record further lacks evidence that the GMC ever relied upon Defendants to provide
probation period calculations, much less that Defendants had policies governing how
to make those determinations. (Cf. Ray, Doc. 626 at 64 (“These JCS policies
instructed employees to extend the length of probation cases until all amounts owed
were paid, prevented probation terms from running consecutively, and granted
53
considerable discretion to JCS employees to determine the amount of time left on a
reinstated probation case.”) (emphasis added)).
Plaintiffs are correct that their GMC files do not contain written orders
returning them to the CRP (after termination for non-compliance). Ms. Zaner has
testified that the GMC would indicate this orally in open court. (See, e.g., Doc. 141-8
at 12 at 328 (“When they reappear in court, they would have to restart CRO,[25] the
order by the judge to restart. I’m not allowed to accept them back into the program
unless the judge orders them back into the program. . . . Q. And you’re going by
based on what you hear in the courtroom as compared to what is actually written
down on the order sheet? A. Correct.”)).26 Plaintiffs have not refuted Ms. Zaner’s
testimony27 nor otherwise shown that it was somehow unlawful–under either federal
or Alabama law–for Defendants to rely upon only an oral order from the GMC about
a probationer’s need to continue treatment pursuant to the CRP. While Plaintiffs
certainly have shown a lack of detail with Defendants’ paperwork, such imperfection
25
“CRO” stands for court referral order.
26
The first page references to Doc. 141-8 correspond with the Court’s CM/ECF numbering
system.
27
The Court acknowledges Plaintiffs’ assertion that certain portions of Ms. Zaner’s
testimony are hearsay and should be stricken. (See, e.g., Doc. 163 at 8 ¶ 180). However, Plaintiffs
never filed a separate motion to strike Ms. Zaner’s testimony nor otherwise developed their hearsay
objection. Accordingly, any request by Plaintiffs to disregard Ms. Zaner’s testimony about oral
orders from the GMC pertaining to Plaintiffs’ obligation to continue with the CRP is denied as
undeveloped.
54
(without more) falls short of establishing a causal connection to any due process
injury or Eighth Amendment harm.
Instead, the only conceivable entity that caused Plaintiffs to be subject to the
CRP beyond the statutory maximum period (if in fact any of them were so subject
after factoring in the APS/AMCPS’s tolling framework) without prior notice or an
opportunity to be heard was non-party GMC. Further, to the extent that Plaintiffs
believed that the GMC was unlawfully continuing its jurisdiction over them by
returning them to the CRP beyond their applicable statutory maximum period, then
redress was available through a motion asking the GMC to enter an order of discharge
or to review the amount of time remaining under the maximum probation term.
Importantly, both the APS and the AMCPS provide that the only entity with the
power to discharge a person from probation is the court with jurisdiction over that
probationer. See Ala. Code § 15-22-54(a) (“When the conditions of probation or
suspension of sentence are fulfilled, the court shall, by order duly entered on its
minutes, discharge the defendant.”); Ala. Code § 12-14-13(h) (“Upon the satisfactory
fulfillment of the conditions of probation or suspension of sentence, the court shall,
by order duly entered on the minutes, discharge the defendant.”).
Plaintiffs also could have brought a habeas challenge, which apparently at least
one Plaintiff–Ms. Snow–attempted (unsuccessfully) to do. (Doc. 172 at 6).
55
Regardless, Plaintiffs have failed to present proof from which a reasonable jury could
conclude that Defendants caused or were the moving force behind extending
Plaintiffs’ probationary term (through continuation of the CRP) beyond the state
statutory maximum without prior notice and an opportunity to be heard. Thus, the
Motion is due to be granted as to Counts One and Seven due to the absence of a
triable issue of § 1983 causation against these Defendants.
4.
Ms. Zaner is additionally entitled to qualified
immunity.
Defendants have also raised the defense of qualified immunity. Defendants
indicate that both the ECCRP and Ms. Zaner may rely on this doctrine. (See Doc. 162
at 34 (discussing qualified immunity afforded to a private attorney)); (see generally
Doc. 140). The ECCRP has no individual capacity. Further, the Supreme Court has
held “that [a] municipality may not assert the good faith of its officers or agents as a
defense to liability under § 1983.” Owen v. City of Indep., 445 U.S. 622, 638 (1980).
The Owen Court further clarified in a footnote that a municipality (unlike an
individual) has only one capacity under § 1983:
The governmental immunity at issue in the present case differs
significantly from the official immunities involved in our previous
decisions. In those cases, various government officers had been sued in
their individual capacities, and the immunity served to insulate them
from personal liability for damages. Here, in contrast, only the liability
of the municipality itself is at issue, not that of its officers, and in the
absence of an immunity, any recovery would come from public funds.
56
Id. n.18 (emphasis added).
After studying Owen, and in the absence of any controlling contrary authorities
relied upon by Defendants, the Court sees no reason why a private entity such as the
ECCRP should be afforded greater protection from liability under § 1983 than a
municipality. Therefore the Court agrees with Plaintiffs that, by extension of Owen,
the ECCRP cannot benefit from asserting an immunity defense based upon the
absence of any violation of clearly established law and/or the good faith conduct of
Ms. Zaner.
However, Ms. Zaner (to the extent that she should be afforded the same
immunity protections as a public official)28 can appropriately assert a qualified
28
In Richardson v. McKnight, 521 U.S. 399 (1997), the Supreme Court determined that
private prison guards were not entitled to assert a qualified immunity defense to alleged liability
brought against them under § 1983:
Our examination of history and purpose thus reveals nothing special enough
about the job or about its organizational structure that would warrant providing these
private prison guards with a governmental immunity. The job is one that private
industry might, or might not, perform; and which history shows private firms did
sometimes perform without relevant immunities. The organizational structure is one
subject to the ordinary competitive pressures that normally help private firms adjust
their behavior in response to the incentives that tort suits provide-pressures not
necessarily present in government departments. Since there are no special reasons
significantly favoring an extension of governmental immunity, and since Wyatt
makes clear that private actors are not automatically immune (i.e., § 1983 immunity
does not automatically follow § 1983 liability), we must conclude that private prison
guards, unlike those who work directly for the government, do not enjoy immunity
from suit in a § 1983 case. Cf. Forrester v. White, 484 U.S., at 224, 108 S. Ct., at 542
(Officers “who seek exemption from personal liability have the burden of showing
that such an exemption is justified”); see also Butz, 438 U.S., at 506, 98 S. Ct., at
2910-2911.
57
immunity defense. “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
government 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
Richardson, 521 U.S. at 412 (emphasis by underlining added). Richardson did not reach whether the
prison guards could be held liable under § 1983 “even though they are employed by a private firm.”
Id. at 413. Instead, the Supreme Court instructed that it was “for the District Court to determine
whether, under this Court’s decision in Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744,
73 L. Ed. 2d 482 (1982), defendants actually acted ‘under color of state law.’” Richardson, 521 U.S.
at 413. In contrast to Richardson, the Supreme Court found in Filarsky that a private attorney
retained to assist in the investigation of a municipal employee’s potential wrongdoing was entitled
to qualified immunity for any alleged liability within the scope of that role. 566 U.S. at 393-94.
The parties have not cited to any controlling authority that addresses the availability of a
qualified immunity defense to a private court referral officer. However, Defendants also have not
argued that Ms. Zaner is not subject to suit under § 1983. See Lugar, 457 U.S. at 937 (observing that
when a private party is sued under § 1983 “the conduct allegedly causing the deprivation of a federal
right [must] be fairly attributable to the State” and discussing “a two-part approach to this question
of ‘fair attribution’”). For the purposes of this alternative basis in support of summary judgment, the
Court has assumed that Ms. Zaner can be sued under § 1983 and also can assert a qualified immunity
defense but acknowledges, given her private status, the debatable nature of these open questions.
58
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), modified in application by Pearson v. Callahan, 555 U.S. 223, 227
(2009) (holding that “Saucier procedure should not be regarded as an inflexible
requirement”). 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.
59
The “unlawfulness must be apparent” under preexisting law.29 Anderson v.
Creighton, 483 U.S. 635, 640 (1987) (citing Malley v. Briggs, 475 U.S. 335, 344-45,
(1986)). Therefore, a temporal requirement exists related to this inquiry. More
particularly, a plaintiff must show that a reasonable state actor 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 Anderson, 483 U.S. 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.”) (emphasis added); Brosseau, 543 U.S. at
198 (“Because the focus is on whether the officer had fair notice that her conduct was
unlawful, reasonableness is judged against the backdrop of the law at the time of the
conduct.”) (emphasis added); see also Johnson v. Clifton, 74 F.3d 1087, 1093 (11th
29
Only Supreme Court, Eleventh Circuit, and Alabama Supreme Court cases can “clearly
establish” the law in this case. 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))).
60
Cir. 1996) (“We know of no [preexisting] case which might have clearly told Clifton
that he could not take the disciplinary action indicated by an investigation which was
initiated before he even knew about the allegedly protected speech, and in
circumstances where the public concern implication was doubtful.”).
However, the Saucier framework was made non-mandatory by the Supreme
Court in Pearson, 555 U.S. at 236, 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 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 (1991). Therefore, to deny immunity, a plaintiff must
affirmatively demonstrate that “no reasonably competent officer would have” acted
as the public official did. Malley, 475 U.S. at 341.
Based upon the foregoing principles, Ms. Zaner is entitled to qualified
immunity. In terms of the threshold inquiry, Plaintiffs offer no on-point cases to show
61
that Ms. Zaner was acting outside the scope of her discretionary authority as a court
referral officer and/or the head of the ECCRP concerning their constitutional claims.
(Doc. 163 at 56). While Plaintiffs point out that qualified immunity does not protect
a defendant from liability for “ministerial” acts or omissions (doc. 163 at 56), the
Court disagrees with them that the CROFM transforms Ms. Zaner’s job into one in
which she exercises no discretion. Importantly, Plaintiffs do not set out any
provisions of the CROFM that even pertain to calculating a probation term. Plaintiffs
also do not show that Ms. Zaner was ever “act[ing] entirely on [her] own behalf” or
“acting wholly outside the scope of [her] discretionary authority[.]” Harbert Int’l, Inc.
v. James, 157 F.3d 1271, 1281 (11th Cir. 1998) (emphasis added).
Having found that Plaintiffs’ constitutional claims do intersect with Ms.
Zaner’s exercise of discretionary authority, qualified immunity applies because
Plaintiffs have failed to establish a triable constitutional claim. In the absence of a
viable constitutional claim, Ms. Zaner cannot be personally liable to Plaintiffs under
§ 1983 for her own conduct or in a supervisory capacity.
Alternatively, even when assuming that Plaintiffs have adduced sufficient
evidence from which a reasonable jury could find a Fourteenth or Eighth Amendment
violation, Plaintiffs have not pointed to (and the Court has not independently found)
any clearly established law that would have put Ms. Zaner on notice of her
62
unconstitutional conduct. More specifically, the law was not clearly established that
Ms. Zaner violated Plaintiffs’ rights under the Fourteenth or Eighth Amendment by
failing to track Plaintiffs’ maximum probation periods under the APS and/or the
AMCPS. Indeed, as mentioned earlier, neither the AMTA–the statute that governs
court referral officers like Ms. Zaner–nor the CROFM expressly renders her
responsible for keeping track of maximum probation periods. Thus, qualified
immunity provides an alternative basis for granting summary judgment to Ms. Zaner
on Plaintiffs’ constitutional claims.
5.
Defendants have not carried their burden to show
that they are entitled to quasi-judicial immunity.
Defendants also assert that they are entitled to quasi-judicial immunity. (Doc.
162 at 34-38). While the Court disagrees with Defendants that such a defense is
available to the ECCRP as an entity, conceivably Ms. Zaner might have a right to rely
upon that immunity. However, unlike Defendants’ qualified immunity argument,
Defendants have provided no examples of cases in which a private individual (as
opposed to a public non-judicial official) was protected by such a defense.30
Therefore, the Court rejects this part of Defendants’ Motion as underdeveloped.
30
Defendants’ cases likewise lack an example of a private entity benefitting from quasijudicial immunity.
63
6.
The Court does not reach the merits of the other
grounds relied upon by Defendants to support a
dismissal of Plaintiffs’ constitutional claims.
The remaining grounds that Defendants rely upon in support of dismissing
Plaintiffs’ Fourteenth and Eighth Amendment claims include statute of limitations
(doc. 162 at 38-39), Rooker-Feldman (id. at 39-40), and Heck v. Humphrey’s
favorable-termination rule. (Id. at 39-43). In light of the foregoing analysis, the Court
finds that reaching these remaining issues is unnecessary. This is particularly so as
Defendants’ statute-of-limitations defense is a partial one that seeks only to dismiss
alleged misconduct that occurred before July 1, 2011 (doc. 162 at 39), and because
the Court has previously explained why Rooker-Feldman and Heck v. Humphrey do
not bar Plaintiffs’ federal claims. (See Doc. 62 at 15-24 (discussing why RookerFeldman does not preclude Plaintiffs’ claims); id. at 24-30 (discussing why Heck v.
Humphrey does not preclude Plaintiffs’ claims)). Accordingly, those portions of
Defendants’ Motion challenging Plaintiffs’ federal claims are due to be termed as
moot.
B.
Plaintiffs Cannot Support a Negligent Training and/or
Supervision Claim Under Alabama Law.
As the Supreme Court of Alabama has observed:
[I]n order for an employer to be liable for the negligent hiring, training,
retention, and supervision of its employee, the plaintiff must also prove
“wrongful conduct” on the part of the employee. University Fed. Credit
64
Union v. Grayson, 878 So. 2d 280, 291 (Ala. 2003) (“[A] party alleging
negligent supervision and hiring must prove the underlying wrongful
conduct of the defendant’s agents.”); Voyager Ins. Cos. v. Whitson, 867
So. 2d 1065, 1073 (Ala. 2003) (“A party alleging negligent or wanton
supervision and hiring must also prove the underlying wrongful conduct
of employees.”); see also Stevenson v. Precision Standard, Inc., 762 So.
2d 820 (Ala. 1999) (holding that a jury verdict against an employer
based on negligent training and supervision of a supervisor who
allegedly sexually harassed a fellow employee could not stand where the
jury also exonerated the supervisor); Smith v. Boyd Bros. Transp., Inc.,
406 F. Supp. 2d 1238, 1248 (M.D. Ala. 2005) (“Under Alabama law, the
finding of underlying tortious conduct is a precondition to invoking
successfully liability for the negligent or wanton training and
supervision of an employee.”); and Thrasher v. Ivan Leonard Chevrolet,
Inc., 195 F. Supp. 2d 1314, 1320 (N.D. Ala. 2002) (“In order to establish
a claim against an employer for negligent supervision, training, and/or
retention, the plaintiff must establish that the allegedly incompetent
employee committed ... [a] tort.”).
Jones Exp., Inc. v. Jackson, 86 So. 3d 298, 304 (Ala. 2010). The Jones court
summarized these cases to mean, “implicit in the tort of negligent hiring, retention,
training, and supervision is the concept that, as a consequence of the employee’s
incompetence, the employee committed some sort of act, wrongdoing, or tort that
caused the plaintiff’s injury.” Id. at 305 (emphasis in original).
Consistent with the Court’s analysis in § V.A.1-3 and the above collection of
Alabama cases, Plaintiffs’ negligent training and/or supervision count fails against
the ECCRP because there is insufficient evidence of any underlying wrongful
conduct committed by Ms. Zaner (or any other employee of the ECCRP for that
matter). Additionally, Ms. Zaner cannot be liable for negligent training or supervision
65
because the ECCRP is the employer and not her. Importantly, Plaintiffs have not cited
to any examples of cases in which a supervisor or manager (as opposed to an
employer) has been held individually liable for negligent training under Alabama law.
Alternatively, to the extent that Plaintiffs can show a violation of a federal
constitutional law, the AMTA, the APS, or the AMCPS by Ms. Zaner for failing to
track maximum probation periods and/or continuing to keep Plaintiffs in the CRP
beyond the two-year limit, this Court is persuaded that such wrongdoing is still
inadequate to support an Alabama negligent training claim.
As an initial matter, Plaintiffs have not referred to any Alabama cases which
have recognized that evidence of an underlying federal constitutional or a state
statutory violation (of the AMTA, APS, or the AMCPS) may serve as a viable anchor
for a negligent training claim.31 With respect to statutory violations more specifically,
several Alabama Supreme Court cases have indicated that, for a negligent training
claim to be viable, an agent’s wrongdoing cannot be based solely upon a statute. See,
e.g., Johnson v. Brunswick Riverview Club, Inc., 39 So. 3d 132, 139 (Ala. 2009)
(reasoning in its rejection of the plaintiff’s negligent training and supervision claim
tied to Alabama’s Dram Shop Act that, Alabama “does not recognize a common law
31
As stated in the preliminary issues section, Plaintiffs have agreed to a dismissal of all
previously asserted common-law counts except for negligent training. Therefore, no underlying
common-law claim remains to support Plaintiffs’ negligence claim.
66
cause of action for negligence in the dispensing of alcohol.” (emphasis added)
(internal quotation marks omitted) (quoting Ward v. Rhodes, Hammonds & Beck, Inc.,
511 So. 2d 159, 164-65 (Ala. 1987))); Gilmer v. Crestview Mem’l Funeral Home,
Inc., 35 So. 3d 585, 596 (Ala. 2009) (rejecting “negligent-supervision claim . . . based
solely on [the] violation of [Alabama’s embalming] statute”); see also Guy v.
Alabama Power Co., No. 2:13CV8-MHT, 2013 WL 3929858, at *2 (M.D. Ala. July
29, 2013) (“[T]he tort does not include those instances where the wrongful conduct
is based on only an Alabama statute.”).Thus, persuaded by Johnson, Gilmer, and Guy,
the Court alternatively concludes that Ms. Zaner’s purported violations of the AMTA,
APS, and the AMCPS cannot support Plaintiffs’ negligent training count. Cf. Guy,
2013 WL 3929858, at *5 (“[E]ven if Jones did create an opening for a claim against
employers for the negligent or wanton hiring, training, and supervision of their
employees based on their employees’ wrongdoings other than those prohibited by
common-law torts, this court cannot conclude that the statute[s] that [Plaintiffs] cite[]
would be such [] bas[e]s.”) (emphasis added).
As for Ms. Zaner’s purported constitutional violations, the Court agrees with
Guy that:
[I]t is clear that the employee’s wrongdoing must be based on state, and
not federal, law. Otherwise, the tort of negligent or wanton hiring,
training, and supervision could be a corridor through which federal laws
prohibiting various types of conduct by employees could be
67
incorporated into state law as a privately redressable requirement on
employers to stop their employees from engaging in such conduct.
“[M]ak[ing] an educated guess of how the Alabama courts, and, in
particular, the Alabama Supreme Court,” would answer this question,
Palmer v. Infosys Technologies Ltd. Inc., 888 F. Supp. 2d 1248, 1252
(M.D. Ala. 2012) (Thompson, J.), this court confidently doubts that the
Jones court intended such potentially indiscriminate and broad
incorporation of federal law into state law.
Guy, 2013 WL 3929858, at *2 (emphasis added). In Guy, the district court dealt with
a negligent training claim premised upon an Alabama statute–Ala. Code § 31-12-2–
that expressly invokes the federal Uniformed Services Employment and
Reemployment Rights Act (“USERRA”) as applicable to the Alabama National
Guard. 2013 WL 3929858, at *4. This Court sees no reason why a negligent training
claim based upon an employee’s federal unconstitutional conduct should be treated
any differently than one based upon federal statutory violations. Accordingly, this
Court alternatively concludes that, as a matter of law, Plaintiffs cannot rely upon
evidence of a federal constitutional violation to support their Alabama negligent
training count.
Finally, Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So. 2d 665 (Ala.
2001), provides another reason why Plaintiffs cannot prevail on their negligent
training claim. Armstrong addresses the element of notice in connection with
asserting negligent training:
A plaintiff must establish “by affirmative proof” that the employer
68
actually knew of the incompetence, or that the employer reasonably
should have known of it. Lane v. Central Bank, 425 So. 2d 1098, 1100
(Ala. 1983), quoting Thompson v. Havard, 285 Ala. 718, 723, 235 So.
2d 853, 858 (Ala. 1970). To carry this burden, the plaintiff may show
either that he informed the employer about specific misdeeds of the
employee, or that the employee’s misdeeds were “of such nature,
character, and frequency that the master, in the exercise of due care,
must have had them brought to his notice.” Lane, 425 So. 2d at 1100.
Armstrong, 817 So. 2d at 683 (emphasis added). Here, Plaintiffs have provided no
affirmative proof that they complained (pre-lawsuit) to Ms. Zaner or anyone else at
the ECCRP about the wrongful conduct or incompetence that they perceived was
taking place with respect to their maximum probation terms.
Further, allegations that Ms. Zaner made mistakes without more “do not
amount to proof that [the ECCRP] was aware [or reasonably should have been aware]
of and, negligently or wantonly, disregarded acts of incompetence by [Ms. Zaner] that
damaged [Plaintiffs].” 817 So. 2d at 683. In particular, as the record lacks any
straightforward statutory wrongdoing on the part of Ms. Zaner, the ECCRP cannot
be subject to liability for failing to reasonably take notice of such dubious
incompetence. Cf. Armstrong, 817 So. 2d at 682 (“[I]t is proper, when repeated acts
of carelessness and incompetency of a certain character are shown on the part of the
servant to leave it to the jury whether they would have come to [the employer’s]
knowledge, had he exercised ordinary care.” (emphasis added) (internal quotation
marks omitted) (quoting Big B, Inc. v. Cottingham, 634 So. 2d 999, 1003 (Ala. 1993),
69
abrogated on other grounds by statute as stated in Horton Homes, Inc. v. Brooks, 832
So. 2d 44, 57 (Ala. 2001))). Therefore, Plaintiffs’ Count Seventeen alternatively fails
because no reasonable jury could find that the ECCRP had or reasonably should have
had notice of Ms. Zaner’s incompetence.
C.
Summary Judgment Is Appropriate on Plaintiffs’ Count for
Injunctive Relief.
Defendants challenge Plaintiffs’ ability to assert claims for injunctive relief on
the grounds that they lack standing to do so or that the relief they seek has been
rendered moot in light of the GMC Standing Order governing probation. (Doc. 162
at 49-50). In their opposition brief, Plaintiffs do not counter either one of these
jurisdictional contentions or otherwise resist the dismissal of their injunctive count.
Consequently, the Court finds that Plaintiffs have abandoned pursuit of their
injunctive claim.32 See, e.g., 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); Bute v. Schuller International, Inc., 998 F. Supp.
1473, 1477 (N.D. Ga. 1998) (finding unaddressed claim abandoned); see also
Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d
1301, 1326 (11th Cir. 2000) (failure to brief and argue issue at the district court is
32
As discussed in the preliminary issues section, Plaintiffs have conceded that their
declarative count is subject to dismissal.
70
sufficient to find the issue has been abandoned); Resolution Trust Corp. v. Dunmar
Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“[T]he onus is upon the parties to formulate
arguments; grounds alleged in the complaint but not relied upon in summary
judgment are deemed abandoned.”); Hudson v. Norfolk Southern Ry. Co., 209 F.
Supp. 2d 1301, 1324 (N.D. Ga. 2001) (“When a party fails to respond to an argument
or otherwise address a claim, the Court deems such argument or claim abandoned.”
(citing Dunmar, 43 F.3d at 599)); cf. McMaster v. United States, 177 F.3d 936, 94041 (11th Cir. 1999) (claim may be considered abandoned when district court is
presented with no argument concerning a claim included in the plaintiff’s complaint);
Road Sprinkler Fitters Local Union No. 669 v. Independent Sprinkler Corp., 10 F.3d
1563, 1568 (11th Cir. 1994) (concluding that a district court “could properly treat as
abandoned a claim alleged in the complaint but not even raised as a ground for
summary judgment”). Thus, due to abandonment, Plaintiffs’ Count Twenty-One is
due to be dismissed for lack of subject matter jurisdiction.
VI.
CONCLUSION
Consistent with the foregoing analysis, Defendants’ Motion is due to be and
hereby is granted in part and otherwise denied or termed as moot. Further, with no
pending claims remaining, the Court will enter a separate final judgment order
dismissing Plaintiffs’ lawsuit.
71
DONE this the 30th day of March, 2018.
VIRGINIA EMERSON HOPKINS
United States District Judge
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