Russell v. Cullman County et al
Filing
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MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 2/11/2021. (PSM)
FILED
2021 Feb-11 PM 02:36
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ROBERT M. RUSSELL,
Plaintiff,
v.
KEVIN LEWIS,
Defendant.
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Case No. 5:16-cv-00805-LSC-SGC
MEMORANDUM OPINION
The magistrate judge entered a report on January 11, 2021, recommending the
court dismiss the plaintiff’s claims against the sole remaining defendant, former
Cullman County Sheriff’s Deputy Kevin Lewis. (Doc. 37). More specifically, the
report recommended: (1) any claims based on a December 29, 2015 traffic stop be
dismissed without prejudice; (2) Lewis’s motion for summary judgment be granted
and plaintiff’s Fourth Amendment claims based on a January 1, 2016 traffic stop be
dismissed with prejudice; and (3) Lewis’s motion to strike be denied as moot. (Id.).
The plaintiff has filed objections to the report and recommendation. (Doc. 38). As
explained below, the plaintiff’s objections are due to be overruled.
A.
December 29, 2015 Arrest
The report concluded the plaintiff’s claims for monetary relief concerning the
December 29, 2015 traffic stop are barred under Heck v. Humphrey, 512 U.S. 477,
486-87 (1994). Specifically, the report reasoned a judgment in the plaintiff’s favor
would necessarily imply the invalidity of his underlying conviction for unlawful
possession of a controlled substance. (Doc. 37 at 9-13). Thus, the magistrate judge
concluded the plaintiff’s claims based on the stop are premature under Heck, until
that conviction is reversed, expunged, or declared invalid. (Id.).
In his objections, the plaintiff notes he is on probation, not incarcerated or
detained. Based on his probation status, the plaintiff contends he is “ineligible for
habeas relief” to invalidate his conviction. (Doc. 38 at 3, 5). Accordingly, the
plaintiff argues the magistrate judge’s reasoning would deny him a forum to litigate
his claims regarding the December 29, 2015 traffic stop. (Id. at 5).
Federal habeas relief is only available to a petitioner “in custody pursuant to
the judgment of a State court.” 28 U.S.C. § 2254. However, “[i]n the context of
habeas proceedings, the ‘in custody’ requirement may also be met where a petitioner
is on probation, parole or bail.” Duvallon v. Florida, 691 F.2d 483, 485 (11th Cir.
1982); Price v. Sec’y, Fla. Dep’t of Corr., 548 F. App’x 573, 575 (11th Cir. 2013)
(petitioner’s term of probation and designation as a sexual predator meant he was
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still “in custody” for purposes of 28 U.S.C. § 2254). 1 Thus, the plaintiff’s probation
status does not preclude the application of Heck.
As the magistrate judge concluded, if this court found the December 2015
traffic stop to be improper, all “fruits of the poisonous tree” would be subject to
suppression, and the plaintiff’s guilty plea and conviction based on the stop would
be undermined. See Cano-Diaz v. City of Leeds, Ala., 882 F. Supp. 2d 1280, 128889 (N.D. Ala. 2012) (“if Cano-Diaz were to prevail on her claim that she was pulled
over and detained without the requisite probable cause or reasonable suspicion, the
fruit of the poisonous tree doctrine would apply to invalidate or expunge the second
offense she was charged with”). Therefore, the plaintiff’s § 1983 claim based on the
December 2015 search of his vehicle is not viable as long as the conviction remains
valid. See Heck, 512 U.S. 486-87.
Accordingly, the plaintiff’s objections to the report and recommendation
regarding the December 29, 2015 traffic stop are OVERRULED, and the plaintiff’s
claims based on the stop are due to be dismissed as premature.
B.
January 1, 2016 Arrest
The plaintiff does not dispute that he was driving without a registration plate
on January 1, 2016, giving Lewis probable cause to stop him. (Doc. 38 at 5). Neither
1
To the extent the plaintiff’s objections are premised on his guilt via plea instead of trial, the
Eleventh Circuit has held that Heck applies to guilty plea convictions. See Salas v. Pierce, 297 F.
App’x 874, 876 (11th Cir. 2008) (per curiam).
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does the plaintiff dispute that, while Lewis waited for dispatch, the canine alerted to
the presence of drugs—giving Lewis probable cause to search the vehicle. (Id. at
6). Instead, the plaintiff alleges Lewis did not find any drugs after searching the
vehicle twice; he alleges it was only after a third search that “a pill was revealed.”
(Doc. 34 at 5-6; Doc. 38 at 7). The plaintiff contends Lewis was “upset” he had
posted bond shortly after his December 29, 2015 arrest and that Lewis fabricated the
evidence due to a “personal vendetta.” (Doc. 38 at 8).
The plaintiff has offered only his conclusory and unsubstantiated assertions
that Lewis fabricated evidence by planting a pill in his vehicle. Neither is the
plaintiff’s contention that officers’ body cameras failed to capture the entire stop
sufficient to show Lewis fabricated evidence. The court notes that the plaintiff
alleged in his amended complaint the vehicle did not belong to him and it was his
first time driving it. (Doc. 11 at 6). If true, the plaintiff cannot rule out that the pill
was in the vehicle just because Lewis failed to see it during his previous searches.
The plaintiff has not come forward with any evidence establishing Lewis
violated his Fourth Amendment right to be free from unreasonable search and
seizure by fabricating evidence against him; his objections based on the January 1,
2016 traffic stop are OVERRULED. See Kingsland v. City of Miami, 382 F.3d
1220, 1227 n.8 (11th Cir. 2004) (noting a court “need not entertain conclusory and
unsubstantiated assertions of fabrication of evidence” at summary judgment),
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abrogated on other grounds by Williams v. Aguirre, 965 F.3d 1147 (11th Cir. 2020).
Accordingly, there are no genuine issues of material fact and Lewis’s motion for
summary judgment on the plaintiff’s Fourth Amendment claims based on the
January 1, 2016 traffic stop is due to be granted on the basis of qualified immunity.
Having carefully reviewed and considered de novo all the materials in the
court file, including the report and recommendation and the objections thereto, the
court ADOPTS the magistrate judge’s report and ACCEPTS her recommendation.
Accordingly, the plaintiff’s Fourth Amendment claims based on the December 29,
2015 traffic stop are due to be dismissed without prejudice. Furthermore, Lewis’s
motion for summary judgment on the plaintiff’s Fourth Amendment claims based
on the January 1, 2016 traffic stop is due to be granted, the court finding no genuine
issues of material fact exist. Lastly, defendant Lewis’s motion to strike is due to be
denied as moot.
A Final Judgment will be entered.
DONE and ORDERED on February 11, 2021.
_____________________________
L. Scott Coogler
United States District Judge
160704
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