Byrd et al v. Jones et al
MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 5/11/15. Associated Cases: 7:14-cv-01469-TMP, 7:14-cv-01537-TMP(MRR)
2015 May-11 PM 04:34
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
GENNIE V. BYRD, et al.,
Case No. 7:14-cv-01469-TMP
D.A. JONES, et al.,
LENORA WILLIAMS, et al.,
Case No. 7:14-cv-01537-TMP
These two cases, originally filed by separate plaintiffs, were consolidated by
the court on September 25, 2014, because both cases involve the same series of
events arising out of the disputed custody of a minor child. Now pending before
the court is a Motion for Summary Judgment by defendants David A. Jones,
Dornell Cousette, and the City of Tuscaloosa,1 filed October 7, 2014, (doc. 17),2
which was joined by defendant Smith (doc. 32) on November 25, 2014. Also
pending are Motions to Strike the affidavits of defendants Jones and Cousette by
the plaintiffs in Byrd I. 3 (Docs. 36, 37). The motions have been fully briefed. The
parties have consented to the exercise of dispositive jurisdiction by the undersigned
SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper
“if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
This motion originally was filed as a Motion to Dismiss, but was converted to a
Motion for Summary Judgment by the court because additional materials have been offered in
support of the motion. (Doc. 31).
Unless otherwise specified, all document numbers are taken from the lead case, Byrd
v. Jones, et al., Case No. 7:14-cv-01469-TMP. For purposes of clarity, hereinafter the lead case,
Case No. 7:14-cv-01469-TMP, will be referred to as Byrd I, and the member case, Case No.
7:14-cv-01537-TMP, will be referred to as Byrd II.
The Byrds argue that the affidavits of the two police defendants are hearsay or
otherwise inadmissible because the information related in them is not based on the officers’
personal knowledge. To the extent the statements objected to in the motions were offered to
prove the truth of the matters asserted, it is true that such would be inadmissible hearsay.
However, the motions to strike (docs. 36, 37) are due to be and hereby are DENIED because the
affidavits reflect the information possessed by the officers, whether true or not, at the time they
acted to apply for arrest warrants. Police officers may base assessments of probable cause on
hearsay and may seek arrest warrants on the basis of hearsay. What the officers believed at the
time they sought the arrest warrants is crucial to the issue of whether they had at least arguable
probable cause to seek the warrants. The court will consider the affidavits, therefore, only to the
extent they are offered to show what officers Jones and Cousette thought to be probable cause to
seek arrest warrants.
party asking for summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
portions of ‘the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting former Fed. R. Civ. P. 56(c)). The movant can meet this
burden by presenting evidence showing there is no dispute of material fact or by
showing that the nonmoving party has failed to present evidence in support of
some element of its case on which it bears the ultimate burden of proof. Celotex,
477 U.S. at 322-23. There is no requirement, however, “that the moving party
support its motion with affidavits or other similar materials negating the
opponent’s claim.” Id. at 323.
Once the moving party has met its burden, Rule 56 “requires the nonmoving
party to go beyond the pleadings and by her own affidavits, or by the ‘depositions,
answers to interrogatories, and admissions on file,’ designate ‘specific facts
showing that there is a genuine issue for trial.’” Id. at 324 (quoting former Fed. R.
Civ. P. 56(e)).
The nonmoving party need not present evidence in a form
necessary for admission at trial; however, he may not merely rest on his pleadings.
Celotex, 477 U.S. at 324. “[T]he plain language of Rule 56(c) mandates the entry
of summary judgment, after adequate time for discovery and upon motion, against
a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden
of proof at trial.” Id. at 322.
After the plaintiff has properly responded to a proper motion for summary
judgment, the court “shall” grant the motion if 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). The substantive law will identify which facts are material and which are
irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute
is genuine “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id. at 248. “[T]he judge’s function is not himself to weigh
the evidence and determine the truth of the matter but to determine whether there is
a genuine issue for trial.” Id. at 249. His guide is the same standard necessary to
direct a verdict: “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.”
Id. at 251-252; see also Bill Johnson’s Restaurants, Inc. v.
N.L.R.B., 461 U.S. 731, 745 n. 11 (1983).
However, the nonmoving party “must do more than show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). The evidence supporting a claim
must be “substantial,” Marcus v. St. Paul Fire and Marine Ins. Co., 651 F.2d 379
(5th Cir., Unit B, 1981); a mere scintilla of evidence is not enough to create a
genuine issue of fact. Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir.
2004); Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 12491250 (11th Cir. 2004). If the non-movant’s evidence is so thoroughly discredited
by the rest of the record evidence that no reasonable jury could accept it, the
evidence fails to establish the existence of a genuine issue of fact requiring a jury
determination. See Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 1776, 167 L.
Ed. 2d 686 (2007) (“Respondent’s version of events is so utterly discredited by the
record that no reasonable jury could have believed him. The Court of Appeals
should not have relied on such visible fiction; it should have reviewed the facts in
the light depicted by the videotape.”); Lewis v. City of West Palm Beach, Fla., 561
F.3d 1288, 1290 n. 3 (11th Cir. 2009). If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted. Anderson, 477 U.S. at
249 (citations omitted); accord Spence v. Zimmerman, 873 F.2d 256 (11th Cir.
1989). Furthermore, the court must “view the evidence presented through the
prism of the substantive evidentiary burden,” so there must be sufficient evidence
on which the jury could reasonably find for the plaintiff. Anderson, 477 U.S. at
255. The non-movant need not be given the benefit of every inference but only of
every reasonable inference. Brown v. City of Clewiston, 848 F.2d 1534, 1540
n. 12 (11th Cir. 1988). Utilizing these standards, the court undertakes the analysis
of whether the defendant has shown that it is entitled to judgment as a matter of
The facts, taken in the light most favorable to the non-moving plaintiffs, are
as follows. Bridget Byrd (the original plaintiff in Byrd II), a resident of Michigan,
is the mother of two minor children, B.B. and B.B.’s brother. In the summer of
2011 Bridget Byrd’s mother and step-father, defendants Lenora and Samuel
Williams (“the Williamses”) picked up B.B. and her brother from Bridget Byrd’s
home in Michigan for what Bridget Byrd believed to be a summer visit. The
Williamses brought B.B. and her brother to their home in Tuscaloosa, Alabama,
with Bridget Byrd’s consent. In July 2011, Bridget Byrd gave her father and stepmother permission, plaintiffs Lamond and Gennie Byrd (“the Byrds” are the
original plaintiffs in Byrd I), to retrieve B.B. and her brother from the Williamses’
home and return them to Michigan for a funeral. The Williamses allowed B.B.’s
brother to return to Michigan, but did not allow the Byrds to take B.B.
Controversy over the custody of B.B. has existed for some time. In 2003, a
Michigan probate court appointed Bridget Byrds’ mother, defendant Lenora
Williams, as the guardian of B.B.
The docket sheet from the
Michigan court, annexed as an exhibit to the Byrds’ complaint, shows that a
petition to terminate the guardianship was filed in October 2005, but the hearing to
address the petition was “put on hold” because “visitation agreement already
worked out.” (Exhibit to Amended Complaint in Byrd I, Doc. 23-1, p. 2). In July
of 2006, the docket sheet noted the “case [was] closed.” On July 7, 2006, a letter
was mailed to Lenora Williams from the Michigan probate court, stating:
A review of the court's file in this matter indicates that you, as the
Guardian for the ward and the ward himself have recently moved
outside the State of Michigan. The purpose of this letter is to inform
you that you have one (1) month from today to establish a
guardianship in your new community before the present guardianship
here in Washtenaw County is administratively closed. Unfortunately,
Letters of Guardianship issued in the State of Michigan are only valid
as long as the individual is a resident of the state.
(Exhibit to Amended Complaint in Byrd I, Doc. 23-1, p. 4). And, indeed, on
July 10, 2006, the docket sheet indicates that the “CASE [was] CLOSED.” (Id. at
Five years later, an entry on the docket sheet of the Michigan proceeding
dated September 8, 2011, stated:
MOTHER CAME IN TO COURT LOOKING FOR ORDER
TERMINATING GUARDIANSHIP INFORMED HER THAT THE
CASE WAS ADMINISTRATIVELY CLOSED AND AT THAT
ADMINISTRATIVE CLOSURES. TOLD HER THAT i WOULD
BE HAPPY TO SPEAK WITH HER CONTACT IN TUSCALOOSA
COUNTY PROBATE COURT TO INFORM HER OF THE
(Exhibit to Amended Complaint in Byrd I, Doc. 23-1, p. 2)4 (all as in original).
A year later, in the summer of 2012, the controversy moved to Tuscaloosa
County. On July 3, 2012, Bridget Byrd talked with defendant Cousette at the
Tuscaloosa Police Department to obtain assistance in getting custody of her
daughter from her mother. (Cousette Affidavit, Doc. 35). She showed Cousette a
“Withdrawal of Parental Guardianship” petition filed in the Probate Court of
Tuscaloosa County the day before (Doc. 19-1, ¶ 5), and she showed him “a letter
from the court in Michigan” showing that Lenora Williams’s guardianship of B.B.
was terminated years before. (Bridget Byrd Affidavit, Doc. 20-1, ¶ 3). Cousette
understood the Tuscaloosa petition to indicate that court proceedings had begun to
gain custody of the child.5
(Cousette Affidavit, Doc. 35).
The contents of the docket sheet fit hearsay exceptions under FRE 803(6) as a record
of a regularly conducted activity and FRE 803(8) as a “public record.” As the plaintiffs
themselves attached the docket sheet in support of their complaint, its authenticity cannot be
challenged by them. Cf. Wells v. XPEDX, 2007 WL 2696566, *4 (M.D. Fla. 2007) (a document
produced by a party in discovery is “deemed authentic” when offered by a party opponent).
After these events, the Alabama Court of Civil Appeals made the following finding of
fact in September 2014, which is binding on Bridget Byrd and Lenora Williams as parties in that
On July 5, 2012, the mother filed an emergency petition in the trial court seeking
a writ of assistance and delivery of the child to her. The mother also filed in the
Tuscaloosa Probate Court (“the probate court”) a withdrawal of parental
guardianship in which she withdrew her consent to the legal guardianship of the
grandmother over the child, and, additionally, she filed in the probate court a
advised Bridget Byrd to allow the court proceedings to work. (Id.) Later that day,
Cousette received a report from another officer, stating that Bridget Byrd had gone
to the home of the Williamses, unsuccessfully seeking to get the child. Over the
next several days, Cousette told Bridget Byrd that he had spoken with Lenora
Williams, who confirmed that B.B. had been living with Bridget Byrd in Michigan
for four years prior to the summer of 2011.
A month later, on August 6, 2012, Officer Cousette received a police
dispatch regarding an alleged kidnapping at a restaurant.
Responding to the
dispatch, he interviewed defendant Lenora Williams, who told him that Bridget
Byrd and Lamond and Gennie Byrd took B.B. from the Williamses’ custody
during an agreed visitation at a restaurant. She said that Lamond Byrd grabbed the
certificate of appointment of guardian in which she appointed L.B., the child's
maternal grandfather ("the grandfather"), as guardian of the child.
The grandmother [Lenora Williams] filed an answer to the mother's emergency
petition and a counterclaim in the trial court on August 3, 2012, in which she
alleged that the mother had physically abused the child and that it was in the
child’s best interest for custody to be awarded to the grandmother.
It is undisputed that the child had returned to Michigan to live with the mother in
April 2007. It is further undisputed that the child had come to Alabama in June
2011 with the mother’s permission to visit the grandmother with the intention of
returning to Michigan in August 2011.
(Bridget Byrd Aff., Ex. B, Doc. 20-2).
child in the restaurant parking lot and ran to a vehicle being driven by Bridget
Byrd. Gennie Byrd was a passenger in the car, according to Mrs. Williams. After
the Byrds left with B.B., they returned to Michigan and the Williamses contacted
the Tuscaloosa Police Department. Mrs. Williams complained that B.B. had been
unlawfully removed from her custody. She explained to him that, at a hearing
earlier that day, an Alabama judge had found Bridget Byrd’s petition for custody
of B.B. to be “improper.” She gave Officer Cousette the cellphone numbers for all
three Byrds, and he attempted unsuccessfully to contact them several times that
day. The next day, August 7, 2012, Officer Cousette telephoned Bridget Byrd,
who confirmed that she had B.B. and would not return her to Alabama. (Doc. 35,
p. 4). Cousette asked Bridget Byrd for the telephone number of the probate court
or judge in Michigan who had presided over B.B.’s case. (Doc. 20-1, ¶ 8).
As an investigator in the Juvenile Division of the Tuscaloosa Police
Department, defendant David A. Jones also received a report of the August 6
incident. In an incident report prepared by Officer Sanders (who is not a defendant
in this action), it was reported as follows:
Officers responded to the parking lot of Ryan's Steakhouse and spoke
with Mr. Williams. He advised that he is married to Lenora Williams
who has legal custody of [B.B.]. [B.B.] is the biological granddaughter of Lenora Williams. He stated that Bridget Byrd, the child's
biological mother; and Lemond [sic] Byrd, the child’s biological
grandfather and Lenora Williams’ ex-husband were invited to the
restaurant for a supervised visitation with the child. He stated that Mr.
Byrd grabbed the child in the parking lot and ran to his black chevy
[sic] car and forced her inside. Bridget Byrd was already in the car
with it running. Both Mr. and Mrs. Williams attempted to stop the
kidnapping and reached into the cars' [sic] back doors which were still
open to try and get the child out. Bridget Byrd spead [sic] away with
both of the Williams subjects still partially inside the car. Ms.
Williams was ran [sic] over according to the witnesses. Both
witnesses also advised that the car was a newer model Chevy Impala
with Michigan plates. She was transported to DCH by Rescue Truck
27 for treatment. Officers informed SGT Huff of the kidnapping and
YA [Youth Aid] was also notified. Officers got written statements
from the two witnesses. Investigator Cousette from Youth Aid
(Doc. 34, p. 7).6 Based on this report and “other information learned by the
Juvenile Division,” 7 Investigator Jones “prepared depositions” to be presented to a
magistrate of the Tuscaloosa County courts, Rosina Smith. In the complaint filed
by Investigator Jones against Gennie Byrd, he alleged under oath the following:
[W]ithin twelve months of the commencement of this action, and
within said county, the defendant, GENNIE BODDIE BYRD, who is
otherwise unknown to the complainant did commit the offense of
Interference with Custody in that the said defendant did on or about
AUGUST 6TH ,2012 @ 4373 COURTNEY DR,TUSCALOOSA, AL
35401 interfere with with [sic] [B.B.] custody by knowingly taking or
enticing [B.B.] who is under the age of 18 from the custody of its
Once again, to be clear, the court does not consider this report or the information in it
for the purpose of proving the truth of the matters recorded it in, but simply as evidence of what
Defendant Jones believed the facts to be, regardless of whether, in fact, they were true.
The nature of this “other information” is not revealed, but one may conjecture that it
includes the conversations Officer Cousette had with Bridget Byrd in early July 2012 and
knowledge of the filing of the emergency petition for custody on July 5, 2012, which she showed
parent, guardian or other lawful custodian who is SAMUEL AND
LENORA WILLIAMS To wit: THE DEFENDANT HELD THE
DOOR OPEN FOR THE CO-DEFENDANT AS HE FORCED THE
CHILD/VICTIM ([B.B.]) INTO THE VEHICLE. THE CHILD IS
10 YEARS OF AGE AND WAS TAKEN DURING A
SUPERVISED VISITATION WITH THE WITNESSES SAMUEL
WILLIAMS AND LENORA WILLIAMS WHO ARE THE LEGAL
CUSTODIANS OF THE CHILD. in violation of Section 13A-6-45
[Code] of Alabama, 1975, against the peace and dignity of the State of
(Exhibit to Complaint in Byrd I, doc. 1-2). The complaints against Bridget Byrd
and Lamond Byrd are substantially similar in their description of the child being
taken from the parking lot of the restaurant and the assertion that Lenora Williams
was the lawful custodian of the child. (See Exhibits annexed to Complaint in
Byrd II, Doc. 1). Based on these complaints by Jones, Magistrate Smith issued
felony arrest warrants for each of the three Byrds based on a charge of interference
with custody that same day, August 6, 2012. (Id.) Bridget Byrd was arrested in
Michigan on August 7, 2012, pursuant to the warrant, and was imprisoned in the
Washtenaw County Jail for ten days. On or about August 17, 2012, the State of
Alabama withdrew the charges against Bridget Byrd, 8 and she was released from
jail. On August 9, 2012, Lamond and Gennie Byrd also were arrested after turning
There is no explicit indication in the record why the charges were withdrawn.
However, on August 7, 2012, the day Bridget Byrd was arrested, the clerk of the Michigan
probate court wrote a letter “To whom it may concern,” noting that the guardianship of B.B. by
Lenora Williams was “closed” in 2006 when she and B.B. moved out of Michigan. (See Exhibit
to Amended Complaint, Doc. 23-1, p. 1). The letter was certified by the probate judge of the
themselves in to authorities in Tuscaloosa, Alabama. 9 Ultimately, the case against
the Byrds also was dismissed.
In September 2014, two years after these events, the Alabama Court of Civil
Appeals found that Lenora Williams’s custodial rights to B.B. expired in 2006,
when her Michigan guardianship expired after she moved out of state. The court
also concluded that Alabama courts have no jurisdiction over the question of the
custody of B.B. (Bridget Byrd Affidavit, Ex. B, Doc. 20-2).
Defendants Jones and Cousette assert in the Motion for Summary Judgment
that they are entitled to qualified immunity and state agent immunity, and the City
of Tuscaloosa asserts direct and derivative immunity. (Doc. 17, pp. 14, 16). In her
joinder of the Motion for Summary Judgment, defendant Smith asserts that she is
entitled to judicial immunity with regard of each of the claims against her. (Doc.
32, p. 2). Because different types of immunity may be applicable to different
defendants, the defendants, along with their potential immunity, will be addressed
The Amended Complaint alleges that Officer Cousette telephoned Gennie Byrd on
August 9, 2012, to inform her that a warrant for her arrest had been issued for interference with
custody. (Doc. 23, ¶ 5). She and Lamond Byrd then turned themselves in to Tuscaloosa
authorities, but it is not clear who actually placed them in physical custody.
Defendant Smith is a magistrate for the District Court of Tuscaloosa County,
Alabama. She is named as a defendant only in Byrd II, and joined defendants
Jones, Cousette, and the City of Tuscaloosa in the pending Motion for Summary
Judgment on November 25, 2014. (Doc. 32). Bridget Byrd, the plaintiff in
Byrd II, sets out the following counts in her complaint:
Count I – Violations of 42 U.S.C. § 1983 in the form of false arrest, false
imprisonment, malicious prosecution, violation of her right to freedom of
association under the 1st Amendment, violation of her right to be free from cruel
and unusual punishment, violation of her right to due process and equal protection
under the 14th Amendment, and violation of her right to care for her own child;
Count II 10 – Alabama state law claim of intentional infliction of emotional
Count III – Alabama state law claim for false arrest;
Count IV – Alabama state law claim for false imprisonment;
Count V – Alabama state law claim for defamation;
Count VI – Alabama state law claim for malicious prosecution;
Count VII – Alabama state law claim for negligent infliction of emotional
Count VIII – Violation of 42 U.S.C. § 1985(3) for conspiracy to deprive a
person of rights and immunities under law, including the right to free association,
freedom from cruel and unusual punishment, right to interstate travel, equal
The Complaint in Byrd II erroneously denominates the second count as “Count I –
Intentional Infliction of Emotional Distress.”
protection and due process of law, and freedom from illegal search and seizure;
Count IX – Alabama state law claim for felonious injury/interference with
custody under Alabama Code § 6-5-370 (1975).
The plaintiff in Byrd II does not specify which claims she intends to bring against
each defendant.11 Therefore, the court presumes that each of the claims is asserted
against all defendants. Smith is entitled to absolute judicial immunity as to all of
the claims in the complaint.
A. Federal Claims
To the extent the plaintiff alleges that Magistrate Smith, acting in her official
capacity as a magistrate, improperly issued an arrest warrant for Bridget Byrd,
Smith was acting as an Alabama state official, entitled to the same immunity as the
state itself from any federal-court judgment imposing a duty to pay money.
Indeed, suing Smith in her official capacity is nothing more than suing the State of
Alabama, which is barred by Eleventh Amendment immunity. See Kentucky v.
Graham, 473 U.S. 159, 165-66, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 611 (1978).
The Complaint is an example of a “shotgun pleading,” repeatedly condemned by the
court of appeals in many cases. The complaint fails to specify which counts are pleaded against
what defendants, or to identify the facts each defendant is alleged to have engaged in that gives
rise to potential liability under each count. Plainly, not every count applies to every defendant.
For example, there is no allegation that the Williamses swore to the complaint against Byrd or
were otherwise involved in her actual arrest in Michigan, yet they are named as defendants in the
false arrest/false imprisonment and malicious prosecution counts. Each succeeding count
incorporates the allegations of all previous counts, thereby incorporating into each count multiple
theories of liability that have nothing to do with the subject of the count.
There is no allegation that Smith was acting in any capacity other than as a
magistrate, and indeed, absent that authority, she could not have entered an arrest
Assuming, however, that the plaintiff in Byrd II is attempting to sue Smith
in her individual capacity, Smith is entitled to judicial immunity. The plaintiff
alleges that Smith used her authority as a magistrate to issue an arrest warrant
against her. There is no allegation that Smith is not a magistrate or that she did not
have jurisdiction over the matter about which the warrant was issued. There is a
long line of Supreme Court cases recognizing the absolute immunity of judges
from damages against them personally for actions taken in their capacity as judge.
See Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed 2d 331 (1978);
Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967); Mireles v.
Waco, 502 U.S. 9, 112 S. Ct. 286, 287, 116 L. Ed. 2d 9 (1991). The immunity
afforded to judges protects them from having to defend a lawsuit, as well as from
the ultimate assessment of damages. Mireless v. Waco, 502 U.S. 9, 11, 112 S. Ct.
286, 116 L. Ed. 2d 9 (1991), citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105
S. Ct. 2806, 2815, 86 L. Ed. 2d 411(1985). A judge loses her immunity in only
First, a judge is not immune from liability for nonjudicial actions, i.e.,
actions not taken in the judge’s judicial capacity. Forrester v. White,
484 U.S., at 227-229, 108 S. Ct., at 544-545; Stump v. Sparkman, 435
U.S., at 360, 98 S. Ct., at 1106. Second, a judge is not immune for
actions, though judicial in nature, taken in the complete absence of all
jurisdiction. Id., at 356-357, 98 S. Ct., at 1104-1105; Bradley v.
Fisher, 13 Wall., at 351.
Mireles v. Waco, 502 U.S. 9, 11-12, 112 S. Ct. 286, 288, 116 L. Ed. 2d 9 (1991).
Neither of these circumstances is alleged here. The plaintiff unmistakably alleges
that Smith, acting in her capacity as a magistrate, issued the arrest warrant for the
plaintiff, and there is no assertion that Smith lacked jurisdiction to do so.
absolute judicial immunity extends to Alabama magistrates, such as Smith, who
are performing judicial functions. See Ex parte City of Greensboro, 948 So. 2d
540, 542-43 (Ala. 2006). Plainly, reviewing complaints for probable cause and
issuing arrest warrants is a judicial function.
Accordingly, all federal claims
asserted against Smith by the plaintiff in Byrd II are due to be dismissed.
B. State Law Claims
Alabama law also grants Smith absolute judicial immunity. The Supreme
Court of Alabama made clear in City of Bayou La Batre v. Robinson that judicial
immunity extends “to the discretionary judicial acts of magistrates.” 785 So. 2d
1128, 1133 (Ala. 2000), citing Almon v. Gibbs, 545 So. 2d 18, 20 (Ala. 1989)
(“[W]here a clerk of court is performing a duty that requires the exercise of
judgment and discretion in its performance, it is considered a judicial act entitling
the clerk to judicial immunity.
This absolute immunity for acts within the
jurisdiction of the judicial officer is extended even where the officer acts in error,
maliciously, or in excess of his authority.”) Accordingly, all state law claims
asserted against Smith by the plaintiff in Byrd II also are due to be dismissed.
Defendants Cousette and Jones
Federal claims against defendants Cousette and Jones are asserted in both
Byrd I and Byrd II. The plaintiffs in Byrd I and Byrd II assert federal claims
pursuant to 42 U.S.C. § 1983 and (in Byrd II) § 1985(3). Defendants Cousette and
Jones, at all relevant times, were police officers for the Tuscaloosa Police
Department and, therefore, were state actors for purposes of claims asserted under
42 U.S.C. § 1983. In Byrd I and Byrd II the plaintiffs assert under § 1983 claims
of false arrest, false imprisonment, and malicious prosecution in violation of the 4th
and 14th Amendments. In Byrd II, Bridget Byrd also asserts federal claims under §
1983 for interference with her First Amendment right to freedom of association,
her Eighth Amendment right to be free from cruel and unusual punishment, 12 her
Any claim grounded on the Eighth Amendment is clearly meritless because Bridget
Byrd was never convicted of any offense. The Eighth Amendment applies only to the rights of
convicted prisoners. “The eighth amendment, however, applies only to confinement that occurs
subsequent to and as a consequence of a person’s lawful conviction of a crime.” Hamm v.
DeKalb County, 774 F.2d 1567, 1572 (11th Cir. 1985), citing Ingraham v. Wright, 430 U.S. 651,
97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977). This claim will be DISMISSED WITH PREJUDICE.
Fifth13 and Fourteenth Amendment rights to due process and equal protection, and
her fundamental right to parental care and custody of her minor child.14 She also
asserts a conspiracy claim pursuant to 42 U.S.C. § 1985(3), alleging that
defendants conspired to deprive her of all of these rights.
The claims against the defendants are brought pursuant to events occurring
in two distinct chronological periods – before the arrest warrants were issued, and
after. The plaintiffs’ claims of malicious prosecution must arise from the seeking
of the arrest warrants, whereas the claims of false arrest and false imprisonment
can pertain only to actions taken pursuant to the arrest warrant. The distinction is
of paramount importance because whether there was a facially valid warrant in
place determines whether the defendants may be entitled to absolute quasi-judicial
immunity or to qualified immunity.
A. Quasi-Judicial Immunity
The Eleventh Circuit has determined that “law enforcement personnel,
acting in furtherance of their official duties and relying on a facially valid court
Any claim grounded on the Fifth Amendment is meritless because the due process
and equal protection rights of that amendment apply only against federal officials, not state
officials as are sued in this case. “[T]he Due Process Clause of the Fifth Amendment applies
only to conduct committed by officials of the federal government; it does not apply to state
actors.” McCall v. Dep't of Human Resources, 176 F. Supp. 2d 1355, 1363 (M.D. Ga. 2001),
citing Riley v. Camp, 130 F.3d 958, 972 n. 19 (11th Cir. 1997) (Tjoflat, J., dissenting from the
denial of rehearing en banc). Her Fifth Amendment claim will be DISMISSED WITH
The court assumes this is the basis for her reference to the Ninth Amendment.
order, are entitled to absolute quasi-judicial immunity from suit in a section 1983
action.” Roland v. Phillips, 19 F.3d 552, 556 (11th Cir. 1994). Therefore, actions
taken in effectuating the arrest warrant once it had been issued are protected by
absolute quasi-judicial immunity.
The plaintiffs may argue that, because the
charges against the plaintiffs in Byrd I and Byrd II ultimately were dismissed, the
arrest warrant was not valid, removing the shield of quasi-judicial immunity.
Immunity is not so easily lost, however. A warrant does not have to be correct, or
even lawful, to be facially valid. Roland, 19 F.3d at 556. The fact that the charges
upon which the warrant was issued later were found to be erroneous, does not
signal that the warrant was facially invalid at the time it was executed. Because
the arrest warrants pursuant to which the plaintiffs were arrested were facially
valid, the officer who arrested the plaintiffs is entitled to quasi-judicial immunity in
regard to the claims of false arrest and false imprisonment in Byrd I and Byrd II.
Likewise, to the extent that officer also is sued under the First Amendment on the
theory that the arrest interfered with Bridget Byrd’s freedom of association with
her child, or under the Ninth Amendment for interfering with her fundamental right
to the custody of her child, quasi-judicial immunity protects the arresting officer.
In Byrd I, the plaintiffs assert claims of false imprisonment and false arrest
against both defendants Jones and Cousette. However, the complaint in Byrd I
states that defendant Cousette arrested the Byrds. (Doc. 23, ¶ 5). The Complaint
does not allege that Jones was present when the arrests took place. Because
defendant Jones did not actually arrest any of the plaintiffs, claims against him of
false arrest and false imprisonment cannot stand. Further, defendant Cousette is
protected by quasi-judicial immunity, because he arrested the plaintiffs in Byrd I
pursuant to a facially valid court order issued by defendant Smith. Accordingly,
the claims in Byrd I against Jones and Cousette for false arrest and false
imprisonment are due to be dismissed.
In Byrd II, the plaintiff alleges claims of false arrest and false imprisonment
against all defendants. However, Bridget Byrd was arrested and held in Michigan,
and never was extradited to Alabama. She was released from Washtenaw County
Jail in Michigan ten days after her arrest there. No defendant named in this lawsuit
ever arrested or imprisoned the plaintiff in Byrd II. To state a claim of Fourth
Amendment violation under § 1983 for false arrest or false imprisonment, there
must be an actual “seizure.” No defendant named in Byrd II ever “seized” Bridget
Byrd for purposes of arrest or imprisonment, nor does the plaintiff allege that they
did. Accordingly, the claims of false arrest or false imprisonment in Byrd II
cannot stand against any defendants, and are due to be dismissed.
For the same reason, Bridget Byrd’s First and Ninth Amendment claims
against Cousette are due to be dismissed. There is no factual allegation that he did
anything to interfere with Bridget’s association with or custody of B.B. He did not
execute the complaint against her or seek the warrant on which she was arrested by
Michigan officials, and there is no allegation that he caused B.B. to be separated
from Bridget Byrd. Accordingly, Bridget Byrd’s First and Ninth Amendment
claims against Cousette are due to be dismissed.
B. Qualified Immunity
Under federal law, it is well settled that qualified immunity protects
government officials performing discretionary functions from civil suit, and from
liability, where their conduct does not violate “clearly established statutory or
constitutional rights.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153 L.
Ed. 2d 666 (2002), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.
2727, 2738, 73 L. Ed. 2d 396 (1982). The shield of qualified immunity has been
expanded to include acts that may not involve the exercise of “actual discretion,”
and can include acts that may be ministerial but are “job-related functions” and are
through means that are within the official’s authority to utilize. Holloman ex rel.
Holloman v. Harland, 370 F.3d 1252, 1265-66 (11th Cir. 2004), quoting Hill v.
DeKalb Reg’l Youth Detention Center, 40 F.3d 1176, 1185 n. 17 (11th Cir. 1994).
Furthermore, it is the general rule that qualified immunity will protect government
actors from liability, and only in “exceptional cases” will the immunity be
unavailable as a shield. Harris v. Board of Education of the City of Atlanta, 105
F.3d 591, 595 (11th Cir. 1997). Even so, qualified immunity does not apply in
those instances where the case law establishes a “bright line” in such a “concrete
and factually defined context” to make it obvious to all reasonable government
actors, in the defendant’s place, that the actions violate federal law. Scarbrough v.
Myles, 245 F.3d 1299, 1301 (11th Cir. 2001).
The initial burden of demonstrating that the public official is acting within
the scope of his position lies with the defendant asserting that defense. Holloman,
370 F.3d at 1264. The test is not, for example, whether the defendant had the
authority to make an illegal arrest, but whether their jobs entailed making arrests,
generally. See id. at 1266. In other words, the court does not ask whether the
defendant had the right to illegally arrest the plaintiff, or swear out an illegal
warrant, but simply whether making arrests and swearing out warrants was within
the general scope of the officer’s duties. The answer in the instant case is in the
Once the defendant has met this burden, which the defendants in this case
have, the burden shifts to the plaintiff to show that the defendant is not entitled to
qualified immunity. Id. To prevail against an assertion of qualified immunity, the
plaintiff must demonstrate that: “(1) the defendant violated a constitutional right,
and (2) this right was clearly established at the time of the alleged violation.” Id. at
1264, citing Wilson v. Layne, 526 U.S. 603, 609, 119 S. Ct. 1692, 1697, 143 L. Ed.
2d 818 (1999).
The § 1983 malicious prosecution claims in Byrd I and Byrd II must be
discussed in terms of qualified immunity because, at the time that the defendants
sought the arrest warrants commencing the criminal proceedings against the
plaintiffs, they were not acting under the authority of a judge and, therefore, are not
entitled to quasi-judicial immunity.
To determine whether the plaintiffs have
adequately set forth a § 1983 claim of malicious prosecution, the court looks to
both federal and state law. The Eleventh Circuit Court of Appeals has stated:
To establish a federal malicious prosecution claim under § 1983, the
plaintiff must prove a violation of his Fourth Amendment right to be
free from unreasonable seizures in addition to the elements of the
common law tort of malicious prosecution. See Uboh, 141 F.3d at
1002-04; Whiting, 85 F.3d at 584-86; Kelly, 21 F.3d at 1553-55. As to
the constituent elements of the common law tort of malicious
prosecution, this Court has looked to both federal and state law and
determined how those elements have historically developed. Uboh,
141 F.3d at 1002-04; Whiting, 85 F.3d at 584-86. For example, in
Uboh, this Court examined both federal law and Georgia law and
indicated that, for purposes of a § 1983 malicious prosecution claim,
the constituent elements of the common law tort of malicious
prosecution included: (1) a criminal prosecution instituted or
continued by the present defendant; (2) with malice and without
probable cause; (3) that terminated in the plaintiff accused’s favor;
and (4) caused damage to the plaintiff accused. 141 F.3d at 1004. We
note that these are also the same elements required under Alabama
law for the tort of malicious prosecution. Delchamps, Inc. v. Bryant,
738 So. 2d 824, 831-32 (Ala. 1999).
Wood v. Kesler, 323 F.3d 872, 881-82 (11th Cir. 2003)(footnotes omitted), cert.
denied, 540 U.S. 879 (2003) (italics in original), citing Uboh v. Reno, 141 F.3d
1000, 1002-04 (11th Cir. 1998); Whiting v. Traylor, 85 F.3d 581, 584 (11th Cir.
The plaintiffs in Byrd I and Byrd II allege that defendant Jones executed the
complaint for the arrest warrant and swore that there was probable cause for the
arrest. Accordingly, the first prong for malicious prosecution (commencing a
judicial action) applies only to defendant Jones, not defendant Cousette. Because
he swore out the arrest warrants, Jones meets the first prong of the common-law
tort of malicious prosecution as to all plaintiffs. Because the charges against all
plaintiffs ultimately were dismissed, the third prong is met as well. All plaintiffs
allege that they were damaged by the arrest and subsequent proceedings.
Accordingly, prong four is met for the purposes of summary judgment. The only
remaining prong is whether defendant Jones swore out the arrest warrant with
malice and without probable cause – the second prong of the common-law tort of
The Eleventh Circuit has comprehensively discussed the issue of probable
cause in a § 1983 malicious prosecution claim in Carter v. Gore:
In Malley v Briggs, the Supreme Court established that even if a
magistrate approves an arrest warrant, the officer who applied for the
warrant may be liable for violating the Constitution if the evidence
presented to the magistrate was insufficient to establish probable
cause. 475 U.S. at 345, 106 S. Ct. at 1098. Under this standard,
however, the question is not whether probable cause actually existed;
rather, the question is whether the officer had “arguable” probable
cause. Von Stein v. Brescher, 904 F.2d 572, 578 (11th Cir. 1990).
Moreover, in order to defeat an officer’s qualified immunity defense,
the plaintiff must show that “a reasonably well-trained officer …
would have known that his affidavit failed to establish probable cause
and that he should not have applied for a warrant.” Malley, 475 U.S.
at 345, 106 S. Ct. at 1098.
Specifically, this court has applied Malley to hold an officer liable
where she secured an arrest warrant based on an affidavit that
“articulate[d] neither the basis for her belief that [the suspect] violated
the law nor any affirmative allegation that she had personal
knowledge of the circumstances of [the] alleged crime.” Kelly, 21
F.3d at 1555; see also Garmon v. Lumpkin County, 878 F.2d 1406,
1408-09 (11th Cir. 1989) (holding an officer liable where the affidavit
states only that the suspect “did . . . commit the offense” because
without “information providing the basis for the affiant’s belief nor
any affirmative allegation that the affiant had personal knowledge of
the circumstances surrounding the alleged commission of the crime,”
the “conclusory assertion clearly is insufficient to establish probable
cause” (citations omitted)).
Carter v. Gore, 557 Fed. App’x 904, 908-09 (11th Cir. 2014).
The plaintiffs in Byrd I and Byrd II allege that arrest warrants were issued
against them based solely on the Williamses’ allegations that Lenora Williams was
B.B.’s legal custodian and that the plaintiffs took B.B. without permission. An
officer requesting a warrant is afforded qualified immunity even if the warrant
causes an unconstitutional arrest, if the officer was “objectively reasonable” in
seeking the warrant. Malley v. Briggs, 475 U.S. 335, 344, 106 S. Ct. 1092, 1098,
89 L. Ed. 2d 271, (1986). “Only where the warrant application is so lacking in
indicia of probable cause as to render official belief in its existence unreasonable,
will the shield of immunity be lost.” Id. at 345, citing United States v. Leon, 468
U.S. 897, 923, 104 S. Ct. 3405, 3421, 82 L. Ed. 2d 677 (1984).
Taking the facts in the light most favorable to the non-moving plaintiffs,
defendant Jones requested the arrest warrants based on false and misleading
statements the Williamses gave to the Tuscaloosa police. Magistrate Smith issued
the requested arrest warrants for felonious interference with custody. Jones signed
an affidavit swearing that Lenora Williams was B.B.’s legal custodian, and that
statement was not true.
Jones could have contacted the Washtenaw County
Probate Court in Michigan and discovered that Lenora Williams’s guardianship of
B.B. had been closed in 2006 when they left the State of Michigan. A letter was
sent to Lenora Williams from the Washtenaw County Probate Court, stating that
Williams’s guardianship would administratively close on July 5, 2006. Because
this letter was filed in the Michigan probate court, it was available for Jones to
look at prior to seeking a warrant. Jones did not have any court order or document
from the State of Alabama showing that the Williamses were B.B.’s legal
custodians. At the preliminary criminal hearing for the plaintiffs, the court ordered
the officers to produce documents showing that Williams had custody of B.B. and,
when the officers could not do so, the cases against the plaintiffs were dismissed.
Although the Motion for Summary Judgment, response, and reply do not
include copies of the affidavits supporting the arrest warrants, the plaintiff in Byrd
II, attached copies of the affidavits as exhibits to her complaint. (Case No. 7:14cv-1537-TMP, Doc. 1-1, pp. 2, 4-5). The following statements were on Jones’s
affidavits submitted to support the issuance of the arrest warrants. As to plaintiff
Bridget Byrd he states, “[t]he defendant was driving the vehicle that left the scene
where a co-defendant grabbed [B.B.] who is 10 years of age and ran to his vehicle
and forced her into the car during a supervised visitation with the witnesses Samuel
Williams and Lenora Williams who are the legal custodians of the child.” (Case
No. 7:14-cv-1537-TMP, Doc. 1-1, p. 2). As to plaintiff Gennie Byrd he states,
“[t]he defendant held the door open for the co-defendant as he forced the
child/victim ([B.B.]) into the vehicle. The child is 10 years of age and was taken
during a supervised visitation with the witnesses Samuel Williams and Lenora
Williams who are the legal custodians of the child.” (Case No. 7:14-cv-1537TMP, Doc. 1-1, p. 4). And, as to plaintiff Lamond Byrd he states, “[t]he defendant
grabbed [B.B.] who is 10 years of age and ran to his vehicle and forced her into the
car during a supervised visitation with the witnesses Samuel Williams and Lenora
Williams who are the legal custodians of the child.” (Case No. 7:14-cv-153728
TMP, Doc. 1-1, p. 5). 15 Jones does not claim to have personally witnessed the
alleged interference with custody, but bases his statements on the assertions of the
witnesses and his investigation.
In Carter v. Gore, 557 Fed. Appx. 904 (11th Cir. 2014), the Eleventh Circuit
discussed why the facts set out by the plaintiff in that case were “sufficient to
plausibly suggest that [the police officer] secured an arrest warrant without
arguable probable case.” Id. at 910. The Court explained:
Just as in Kelly and Garmon, Gore’s affidavit contained only a
conclusory assertion that the suspect committed a crime. By listing
specific steps taken to commit the crime, the assertion in Gore’s
affidavit is longer and more specific than was the assertion in
Garmon, which simply stated that the suspect committed the alleged
crime. But Gore’s affidavit was legally deficient in precisely the same
way: it provided no evidence to support Gore’s assertions, nor did
Gore allege personal knowledge about the crime. As in Garmon, a
reasonable officer in Gore’s position would have known that such a
conclusory affidavit did not allege facts sufficient to establish
arguable probable cause.
In support of his allegation that Gore lacked arguable probable cause,
Carter claims that Gore had a number of reasons to believe that Carter
did not commit the crime and no proof that he did. Without
witnesses, photographic evidence, or any evidence placing Carter at
the scene of the crime, what evidence did Gore have? . . .
Carter v. Gore, 557 Fed. App’x 904, 910-11 (11th Cir. 2014).
The version of events leading to the plaintiffs’ arrests that is set out the in the
affidavits is very different than what is asserted in the case at bar. However, the precise details
of the day B.B. was taken by the plaintiffs are not at issue.
Unlike the officer in Carter, the affidavits submitted by Jones referenced
“the witnesses Samuel Williams and Lenora Williams.” The analysis in Carter
does not suggest that an officer must have some evidence other than an eyewitness account to have arguable probable cause to swear out a warrant. Because
the standard is “arguable” probable cause, the fact it was later determined that
Lenora Williams did not have custody of B.B. does not mean Jones did not have
arguable probable cause, unless Jones had some reason not to believe the
Williamses’ assertion that they had lawful custody. The plaintiffs argue that Jones
should have investigated further to confirm that the Williamses had custody of
B.B. The plaintiffs state with no factual support at all that Jones “knew” the
Williamses did not have custody of B.B. and signed the complaint affidavits
anyway. The plaintiff in Byrd II argues that, on July 3, 2012, before the affidavits
were sworn, she provided the Tuscaloosa Police Department with documents
reflecting that Lenora Williams’s guardianship had been terminated. She states
that she spoke with defendant Cousette on July 5 and 6, at which time Cousette
admitted that he knew B.B. had been living in Michigan for 4 years prior to the
incident, he knew of the termination of guardianship, and he knew that Bridget
Byrd was B.B.’s mother.
Jones, not Cousette, was the officer who swore out the arrest warrants.
Because Cousette did not swear out the warrants, what he may have known is not
relevant to whether Jones had arguable probable cause to seek a warrant. The
plaintiff asks the court to require a full investigation into an alleged crime, before
warrants are issued. Such a requirement would be overly burdensome to police
and dangerous to the public at large. In this case, the statements of the witnesses in
the police report were sufficient to give Jones arguable probable cause that a crime
had been committed by the plaintiffs and justify his seeking a warrant. The fact
that the witnesses may have lied to Jones about their custodial claim does not mean
that Jones lacked arguable probable cause unless he had some reason not to believe
the truthfulness of what the witnesses told him.
The Eleventh Circuit has
“[W]hen the Fourth Amendment demands a factual showing sufficient
to comprise ‘probable cause,’ the obvious assumption is that there will
be a truthful showing.” [Franks v. Delaware, 438 U.S. 154, 164-65,
98 S. Ct. 2674, 2674, 57 L. Ed. 2d 667 (1978) (emphasis in original)].
While this condition does not dictate that the statements be objectively
accurate, it does require that they “be ‘truthful’ in the sense that the
information put forth is believed or appropriately accepted by the
affiant as true.” Id. at 165, 98 S. Ct. 2674. Thus, a police officer may
be held liable under 42 U.S.C. § 1983 for submitting an application
for an arrest warrant that contains false information. See Malley v.
Briggs, 475 U.S. 335, 346, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986);
Cannon, 174 F.3d at 1285. If “a reasonable police officer would have
known that [the witness’s] testimony was not just negligently false,
but recklessly so,” then [the officer] is not entitled to qualified
immunity. Kelly v. Curtis, 21 F.3d 1544, 1554 (11th Cir. 1994).
Holmes v. Kucynda, 321 F.3d 1069, 1083 (11th Cir. 2003). There is no evidence
that Jones had any reason not to believe the statements made to him by the
Because a reasonable officer investigating the complaint by the
Williamses would have no reason to believe what they told him was false, Jones
has qualified immunity from liability based on seeking the arrest warrants.
Accordingly, the federal malicious prosecution claims in Byrd I and Byrd II, to the
extent they are set out against Jones, are due to be dismissed.
Defendant Cousette’s arrest of the plaintiffs in Byrd I does not constitute the
commencement of a judicial action and, because it is not alleged that he otherwise
was involved in seeking the arrest warrant, claims of malicious prosecution against
him cannot stand. All the federal malicious prosecution claims in Byrd I and Byrd
II, as they pertain to defendant Cousette, also are due to be dismissed.
Interference with Associational and Parental Rights
In Byrd II, Bridget Byrd alleges claims for interference with her First
Amendment right of association (with B.B.) and interference with her fundamental
right as a parent to the custody of her child. 16 As already discussed above, there is
no factual basis for finding that Cousette is liable for interfering with the Bridget
Byrd’s First Amendment associational rights or her fundamental right as a parent
Lamond and Gennie Byrd do not allege these claims in Byrd I, and thus the court will
discuss any such claims with respect to Lamond and Gennie Byrd.
to the custody of her child. First, Cousette was not involved in the arrest of
Bridget Byrd by Michigan authorities. Second, even if he were involved in her
arrest, he remains entitled to absolute quasi-judicial immunity for carrying out the
commands of the warrant. An officer executing a facially valid arrest warrant has
no obligation to question the magistrate’s judicial decision to issue the warrant, and
he is not liable for faithfully executing the warrant’s command to arrest the subject
of the warrant.
Investigator Jones also is not liable for interfering with these rights as he had
arguable probable cause to seek the warrants. Based on the information then
possessed by Jones, none of the Byrds had any legal custodial right to B.B. and,
indeed, had illegally deprived Lenora Williams of her custodial rights. Even
though this information turned out not to be true, an objectively reasonable officer
possessing the same information as Jones would have had at least arguable
probable cause to seek the warrants.
As such, Jones is entitled to qualified
immunity from liability on these counts in Byrd II.
C. Denial of Due Process and Equal Protection
Because Officer Cousette and Investigator Jones are not federal officers, any
invocation of the Fifth Amendment is meritless. The claim for deprivation of due
process and equal protection, if it exists at all against them, arises from the
Fourteenth Amendment. For the reasons already discussed, both Cousette and
Jones are entitled to qualified immunity, and for Cousette, absolute quasi-judicial
immunity. Furthermore, the Byrds received all the process to which they were
due. Arrest warrants were obtained and executed. Ultimately, court procedures
resulted in the dismissal of the charges against them. Plaintiffs fail to identify any
other procedural right to which they were entitled.
Insofar as they allege a denial of equal protection, they have not alleged that
they were the victims of any arbitrary or invidious discrimination prohibited by the
The essence of the equal protection clause of the
Fourteenth Amendment is its prohibition against State and local governments
exercising purposeful, invidious discrimination against citizens on the basis of
“race, religion, national origin, or some other constitutionally protected basis.”
Jones v. Ray, 279 F.3d 944, 946–47 (11th Cir. 2001); Damiano v. Florida Parole
and Prob. Comm'n, 785 F.2d 929, 932–33 (11th Cir. 1986); Sweet v. Secretary,
Department of Corrections, 467 F.3d 1311, 1318–1319 (11th Cir. 2006); Jones v.
Thomas, 2014 WL 903313, at *1 (M.D. Ala. Mar. 7, 2014). “To state an equal
protection claim, a plaintiff must demonstrate that similarly situated persons
outside his protected class were treated more favorably and that ‘the state engaged
in invidious discrimination against him based on race, religion, national origin, or
some other constitutionally protected basis.’” Watson v. Div. of Child Support
Services, 560 F. App'x 911, 913 (11th Cir. 2014), quoting Sweet v. Sec'y, Dep't of
Corrections, 467 F.3d 1311, 1318–19 (11th Cir. 2006); see also Amnesty Int'l,
USA v. Battle, 559 F.3d 1170, 1180 (11th Cir. 2009).
In the instant case, Bridget Byrd does not allege any protected-class status or
that the actions against her were invidious or arbitrary. She does not allege that the
reason a warrant was issued and executed for her arrest was purposeful
discrimination on the basis of her race, religion, national origin, or other suspect
classification. Absent some factual allegation of invidious discrimination, her
equal protection claim is meritless.
D. 42 U.S.C. § 1985
The plaintiff in Byrd II (Bridget Byrd) claims that the individual defendants
conspired with one another, in violation of 42 U.S.C. § 1985(3), to deprive her of
“due process and equal protection under the 14th Amendment, freedom of
association under the 1st Amendment, freedom against cruel and unusual
punishment, and the fundamental liberty interests associated with a parent’s right
to rear and raise their children without undue interference.” (Case No. 7:14-cv01537-TMP, Doc. 1, ¶ 88). The Complaint, however, fails to state facts sufficient
to support a claim under § 1985(3).
The elements of a cause of action under § 1985(3) are: (1) a
conspiracy; (2) for the purposes of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws; and (3) an
act in furtherance of the conspiracy; (4) whereby a person is either
injured in his person or property or deprived of any right or privilege
of a citizen of the United States.
Griffin v. City of Clanton, Ala., 932 F. Supp. 1359, 1371 (M.D. Ala. 1996),
quoting Lucero v. Operation Rescue, 954 F.2d 624, 627 (11th Cir. 1992).
The plaintiff fails to put forth any facts alleging that a conspiracy existed
and, therefore, fails to satisfy the first element required to support a claim under
§ 1985(3). The plaintiff states that the “[d]efendants conspired . . . [to] deprive
Plaintiff of her constitution[al] rights,” and that the “[d]efendants engaged in a
conspiracy to directly or indirectly deprive Byrd of [her] fundamental liberty
interest of rearing and raising her own child,” but she does not support these
statements with any factual allegations whatsoever.
Her purely conclusory
statements are not sufficient to support her claim, and, in her response to the
Motion for Summary Judgment the plaintiff fails even to address her § 1985(3)
claim. Because the plaintiff fails to meet the first prong of a cause of action under
§ 1985(3), her claims cannot stand against any defendant.
The plaintiff also fails to satisfy the second element required to support a
cause of action under § 1985(3), because she fails to allege – even in the most
cursory fashion – the required motivation for sustaining such a claim. “The second
element of the cause of action requires the Plaintiffs to make a showing that the
Defendants’ actions were motivated by a racial or other class-based invidious
discrimination.” Griffin, 932 F. Supp. at 1371, citing Griffin v. Breckenridge, 403
U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971). The Supreme Court
of the United States determined that, although it is not explicitly stated in the
statute, the legislative intent of § 1985(3) was that it be applied only in cases where
deprivation of equal protection occurred due to the plaintiff’s membership in a
For, though the supporters of the legislation insisted on coverage of
private conspiracies, they were equally emphatic that they did not
believe, in the words of Representative Cook, ‘that Congress has a
right to punish an assault and battery when committed by two or more
persons within a State.’ Id., at 485. The constitutional shoals that
would lie in the path of interpreting s 1985(3) as a general federal tort
law can be avoided by giving full effect to the congressional
purpose—by requiring, as an element of the cause of action, the kind
of invidiously discriminatory motivation stressed by the sponsors of
the limiting amendment. See the remarks of Representatives Willard
and Shellabarger, quoted supra, at 1797. The language requiring
intent to deprive of equal protection, or equal privileges and
immunities, means that there must be some racial, or perhaps
otherwise class-based, invidiously discriminatory animus behind the
conspirators’ actions. The conspiracy, in other words, must aim at a
deprivation of the equal enjoyment of rights secured by the law to all.
Griffin v. Breckenridge, 403 U.S. 88, 101-02, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d
338 (1971). The plaintiff does not assert, even in a conclusory fashion, that any of
the actions taken against her were motivated by racial animus or by animus toward
another protected class, of which the plaintiff may be a member. Therefore, her
claim cannot stand. The plaintiff’s claim pursuant to 42 U.S.C. § 1985(3) is due to
be dismissed against all defendants.
E. State Law Claims
Only the plaintiff in Byrd II pursues claims under Alabama state law.
Accordingly, all claims discussed in this section can be found in Document 1 of
Case Number 7:14-cv-01537-TMP. The plaintiff in Byrd II asserts the following
state law claims: intentional infliction of emotional distress (also known as the tort
of outrage), false arrest, false imprisonment, defamation, malicious prosecution,
negligent infliction of emotional distress, and felonious interference with custody.
In response to the claims, the defendants Jones and Cousette argue they are entitled
to state-agent and/or discretionary function immunity under Alabama state law.
i. Discretionary Function Immunity
As state actors, defendants Jones and Cousette assert that they are entitled to
immunity. According to Alabama Code § 6-5-338(a), a police officer of any
municipality in the state “shall have immunity from tort liability arising out of his
or her conduct in performance of any discretionary function within the line and
scope of his or her law enforcement duties.” Id. Discretionary functions have
been deemed to be “those acts as to which there is no hard and fast rule as to the
course of conduct that one must or must not take, and those acts requiring exercise
in judgment and choice and involving what is just and proper under the
circumstances.” Moore v. Adams, 754 So. 2d 630, 632 (Ala. 1999), citing Wright
v. Wynn, 682 So. 2d 1, 2 (Ala. 1996), and L.S.B. v. Howard, 659 So. 2d 43 (Ala.
1995). The Alabama Supreme Court has held that immunity applies to the conduct
of officers in the effectuation of an arrest. See Ex parte City of Montgomery, 758
So. 2d 565, 570 (Ala. 1999).
In Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), the state supreme court
set out a detailed test for determining when a state employee is entitled to
immunity under § 6-5-338, and changed the focus of such immunity from whether
the employee is engaged in a “discretionary function,” to the specific provisions of
the immunity articulated in Cranman. That restatement of state-agent immunity
includes the provision that a state employee is entitled to immunity when
“exercising judgment in the enforcement of the criminal laws of the state,
including, but not limited to, law enforcement officers’ arresting or attempting to
arrest persons.” 792 So. 2d at 205. Since Cranman, a peace officer’s entitlement
to immunity under § 6-5-338(a) is judged by the principles set forth in Cranman,
and not under an analysis of discretionary versus ministerial functions.17 Ex parte
City of Tuskegee, 932 So. 2d 895, 904 (Ala. 2005).
The statutory immunity extends not only to the officers, but to the
governmental unit that employs them. See, e.g., Howard v. City of Atmore, 887
So. 2d 201, 211 (Ala. 2003); Montgomery v. City of Montgomery, 732 So. 2d 305
(Ala. Civ. App. 1999) (holding that both the officer and the city were immune
under § 6-5-338 for mistaken arrest of man). The immunity shields the officers
and the city from liability “unless [the] actions were conducted with willful or
malicious intent or in bad faith.” Ex parte City of Montgomery, 758 So. 2d at 570.
Accordingly, the court evaluates a claim of discretionary function immunity by
first determining whether the defendant has demonstrated that he was exercising
judgment when the alleged wrongful conduct occurred. If so, the burden shifts to
the plaintiff to prove that the defendant acted in “bad faith, with malice or
willfulness.” Wood v. Kesler, 323 F. 3d 872, 883 (11th Cir. 2003).18
It should be noted, however, that even before Cranman, the state courts recognized
that discretionary functions were akin to those that required the exercise of judgment. Ex parte
City of Tuskegee, 932 So. 2d at 905, citing Ex parte City of Montgomery, 758 So. 2d at 569.
It has been noted that discretionary function immunity and qualified immunity both
involve a “core issue” of whether a defendant violated clearly established law. Qualified
immunity, however, cannot be defeated by a showing of bad faith, malice, or willfulness.
Scarbrough v. Myles, 245 F.3d 1299, 1303 n. 9 (11th Cir. 2001).
(a). Intentional Infliction of Emotional Distress
In Byrd II, the plaintiff claims that the defendants “intentionally or
recklessly inflicted severe emotional distress” on the plaintiff, and that the conduct
of the defendants was “so extreme and outrageous as to exceed all possible bounds
of decency and must be regarded as atrocious and utterly intolerable in a civilized
community.” (Case No. 7:14-cv-1537-TMP, Doc. 1, ¶¶ 50-51). The elements of
the tort upon which the plaintiff must offer evidence are the following:
“The tort or outrage requires that: (1) the actor intended to inflict
emotional distress, or knew or should have known that emotional
distress was likely to result from his conduct; (2) the conduct was
extreme and outrageous; (3) the defendant’s actions caused the
plaintiff distress; and (4) . . . the distress was severe. With respect to
the conduct element, this court has stated that the conduct must be ‘so
outrageous in character and so extreme in degree as to go beyond all
possible bounds of decency, and to be regarded as atrocious and
utterly intolerable in a civilized society.’”
Thomas v. Williams, 21 So. 3d 1234, 1237-38 (Ala. Civ. App. 2008), quoting
Gunter v. Huddle, 724 So. 2d 544, 547 (Ala. Civ. App. 1988); see also American
Road Service Co. v. Inmon, 394 So. 2d 361, 365 (Ala. 1980). “[T]he tort of
outrage is ‘a limited remedy to be applied only in flagrantly egregious
circumstances.’” Gunter v. Huddle, 724 So. 2d 544, 547 (Ala. Civ. App. 1988),
quoting Turner v. Hayes, 719 So. 2d 1184, 1187 (Ala. Civ. App. 1997), aff’d in
pertinent part, 719 So. 2d 1190 (Ala. 1998).
The tort of outrage . . . is so limited that this court has recognized it in
regard to only three kinds of conduct (1) wrongful conduct in the
family-burial context, Whitt v. Hulsey, 519 So. 2d 901 (Ala. 1987); (2)
barbaric methods employed to coerce an insurance settlement,
National Sec. Fire & Cas. Co. v. Bowen, 447 So. 2d 133 (Ala. 1983);
and (3) egregious sexual harassment, Busby v. Truswal Sys. Corp.,
551 So. 2d 322 (Ala. 1989). See also Michael L. Roberts and Gregory
S. Cusimano, Alabama Tort Law, § 23.0 (2d ed. 1996).
Potts v. Hayes, 771 So. 2d 462, 465 (Ala. 2000). This is not to say,
however, that the tort of outrage is viable in only the three
circumstances noted in Potts. Recently, this Court affirmed a
judgment on a tort-of-outrage claim asserted against a family
physician who, when asked by a teenage boy’s mother to counsel the
boy concerning his stress over his parents’ divorce, instead began
exchanging addictive prescription drugs for homosexual sex for a
number of years, resulting in the boy’s drug addiction. See O’Rear v.
B.H., 69 So. 3d 106 (Ala. 2011). It is clear, however, that the tort of
outrage is viable only when the conduct is “ ‘so outrageous in
character and so extreme in degree as to go beyond all possible
bounds of decency, and to be regarded as atrocious and utterly
intolerable in a civilized society.’ ” Horne v. TGM Assocs., L.P., 56
So. 3d 615, 631 (Ala. 2010)(quoting Inmon, 394 So. 2d at 365).
Little v. Robinson, 72 So. 3d 1168, 1172-73 (Ala. 2011).
The plaintiff does not allege facts that propel the actions of Jones and
Cousette to the level of outrageous conduct. The plaintiff does not state what
specific conduct she claims to be an intentional infliction of emotional distress, but
she does incorporate by reference the fact portion of her complaint. She asserts
that: Jones and Cousette failed to confirm the Williamses’ claims, Jones swore out
the arrest warrant for the plaintiff based on false and unsubstantiated information
and without documents showing that Lenora Williams had custody of B.B.; Jones
and Cousette’s actions led to the plaintiff’s arrest and imprisonment, caused the
plaintiff’s reputation to suffer, and caused her to experience emotional and mental
trauma. The plaintiff makes the baseless allegation that Jones and Cousette acted
“in a malicious, reckless, grossly negligent and wanton manner,” and that they
“acted in concert to aid, abet and facilitate spurious felony charges” against the
plaintiff. (Case No. 7:14-cv-1537, Doc. 1, ¶¶ 23-28). However, she makes no
factual claims to support her statements. The factual allegations that she does
assert do not suggest conduct, even if proved, that was of such a nature that it is
intolerable in civilized society.
The court already has determined that defendant Jones had at least arguable
probable cause to seek the arrest warrant. Further, Cousette was not involved in
Bridget Byrd’s arrest by Michigan authorities, but even if he was, he is entitled to
quasi-judicial immunity for execution of the arrest warrant. The court also has
determined that the plaintiff failed to allege sufficient facts to support a claim of
any sort of conspiracy. The conduct in question does not fall into the categories
for which the tort of outrage claim originally was intended. It also does not rise to
the level of conduct that can support a tort of outrage claim beyond those
categories. The Alabama Supreme Court has held that a police officer’s failure to
comply with applicable rules, policies, and/or procedures does not fit within the
category of “atrocious and utterly intolerable” behavior supportive of a viable
outrage claim. See Stabler v. City of Mobile, 844 So. 2d 555, 560-62 (Ala. 2002)
(holding that a sergeant’s transmission of libelous correspondence about a
subordinate officer in an attempt to detrimentally impact that officer’s ability to
obtain a position with another law enforcement agency, while in violation of the
internal rules of the Mobile Police Department, was not “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency.”) (quoting American Road Serv. Co. v. Inmon, 394 So. 2d 361, 368 (Ala.
The plaintiff in the case at bar does not even claim that the defendant
officers violated any applicable rules or policies of the Tuscaloosa Police
Absent some factual showing that Jones and Cousette acted
maliciously or beyond their authority, it cannot be said that they engaged in
atrocious or outrageous conduct. The plaintiff’s claim of outrage against Jones and
Cousette in Byrd II is due to be dismissed.
(b). False Arrest and False Imprisonment
The plaintiff in Byrd II alleges state-law claims of both false arrest and false
imprisonment against defendants Jones and Cousette. Under Alabama state law,
the claims of false arrest and false imprisonment may be used interchangeably.
See Kmart Corp. v. Perdue, 708 So. 2d 106, 110 (Ala. 1997) (“False arrest, or false
imprisonment, consists of ‘the unlawful detention of the person of another for any
length of time whereby he is deprived of his personal liberty.’ Ala. Code 1975, §
6-5-170.”). A wrongful or false arrest, therefore, supports an Alabama state law
claim of false imprisonment. Upshaw v. McArdle, 650 So. 2d 875, 878 (Ala.
Although Jones swore out the warrant that lead to the plaintiff’s arrest,
neither of the defendant police officers ever physically seized, detained, arrested,
or imprisoned the plaintiff. She was physically arrested by Michigan police on the
basis of the Tuscaloosa County warrant. “For there to be a false imprisonment,
there must be some direct restraint of the person; however, it is not necessary that
there be confinement in a jail or a prison.”
Crutcher v. Wendy’s of North
Alabama, 857 So. 2d 82, 92 (Ala. 2003), citing Crown Central Petroleum Corp. v.
Williams, 679 So. 2d 651, 653 (Ala. 1996).
Even assuming one of the defendants actually arrested the plaintiff, the
defendants are entitled to quasi-judicial immunity, because the arrest took place
pursuant to a court order. See Ex parte Phelps, 612 So. 2d 1777, 1181 (Ala. 1992)
(“Public officers carrying out judicial orders are normally entitled to quasi-judicial
immunity.” Id. quoting International Molders & Allied Workers, AFL-CIO v.
Buchanan Lumber Birmingham, 459 F. Supp. 950, 952 (N.D. Ala. 1978), aff’d
without opinion, 618 F.2d 782 (5th Cir. 1980)). Accordingly, the plaintiff’s state
law claims of false arrest and false imprisonment are due to be dismissed against
both Jones and Cousette.
The plaintiff alleges that the defendants, on numerous occasions, “made
false and malicious statements” about her. (Case No. 7:14-cv-01537-TMP, Doc. 1,
¶ 71). She claims that the statements “caused [her] to be shamed, ridiculed, held in
contempt, lowered in the estimation of the community,” caused her to lose her
employment and standing, and damaged her reputation. (Id. at ¶ 72). Again, the
plaintiff relies on her initial fact statement to support her defamation claim. She
alleges that the arrest warrant issued against her was based on the false statement
that she, along with the plaintiffs in Byrd I, took B.B. during a supervised
visitation. She claims that Jones falsely swore out the warrant for her arrest, and
did so in a reckless, harmful, grossly negligent and wanton manner. (Id. at ¶¶ 21,
23). The plaintiff argues that by applying for and issuing the arrest warrant,
defendants Jones and Smith “supported and perpetuated the false reports,” which
caused the plaintiff “severe harm.” (Id. at ¶ 37). The actions, the plaintiff alleges,
resulted in her public humiliation when “the story of her arrest warrants, [sic] and
arrest were published in numerous news articles and over the internet,” and that the
allegations caused her to be investigated by her employer. (Id. at ¶¶ 38-39).
Alabama law recognizes four elements for a defamation claim.
The elements of a cause of action for defamation are: 1) a false and
defamatory statement concerning the plaintiff; 2) an unprivileged
communication of that statement to a third party; 3) fault amounting at
least to negligence; and 4) either actionability of the statement
irrespective of special harm [(per se)] or the existence of special harm
caused by the publication of the statement [(per quod)].
Jackson v. WAFF, LLC, 109 So. 3d 1123, 1126 (Ala. Civ. App. 2012), quoting
Dudley v. Bass Anglers Sportsman Soc’y, 777 So. 2d 135, 140 (Ala. Civ. App.
2000) (quoting Drill Parts & Serv. Co. v. Joy Mfg. Co., 619 So. 2d 1280, 1289
(Ala. 1993), quoting in turn McCaig v. Talladega Publ’g Co., 544 So. 2d 875, 877
The plaintiff’s claim cannot stand, however, because all of the
communications to which she objects are privileged under Alabama Code § 13A11-161, which states:
The publication of a fair and impartial report of the return of any
indictment, the issue of any warrant, the arrest of any person for any
cause or the filing of any affidavit, pleading or other document in any
criminal or civil proceeding in any court, or of a fair and impartial
report of the contents thereof, or of any charge of crime made to any
judicial officer or body, or of any report of any grand jury or of any
investigation made by any legislative committee, or other public body
or officer, shall be privileged, unless it is proved that the same was
published with actual malice. . .
Jackson v. WAFF, LLC, 109 So. 3d 1123, 1126 (Ala. Civ. App. 2012), quoting
Ala. Code § 13A-11-161 (emphasis added). The communications that the plaintiff
alleges were defamatory all fall within the purview of the privilege discussed in
The issuance of the arrest warrant by Magistrate Smith is
privileged, and the completion of the affidavit by Jones seeking the arrest warrant
is privileged. The plaintiff asserted the mere legal conclusion that the defendants’
statements were “false and malicious.” (Case No. 7:14-cv-1537-TMP, Doc. 1, ¶
However, the plaintiff offers no factual allegations that either of the
defendants acted maliciously.
The plaintiff has failed to assert that any
nonprivileged statements were made by any defendant, and the plaintiff’s state-law
defamation claim is due to be dismissed against all defendants.
(d). Malicious Prosecution
A claim of malicious prosecution under Alabama law requires a showing of
“‘(1) a judicial proceeding initiated by the defendant, (2) the lack of probable
cause, (3) malice, (4) termination in favor of the plaintiff, and (5) damage.’” Moon
v. Pillion, 2 So. 3d 842, 845-46 (Ala. 2008), quoting Lee v. Minute Stop, Inc., 874
So. 2d 505, 512 (Ala. 2003) (quoting Cutts v. American United Life Ins. Co., 505
So. 2d 1211, 1214 (Ala. 1987)). Malicious prosecution is “an action disfavored in
the law.” Id. quoting Mitchell v. Folmar & Assocs., LLP, 854 So. 2d 1115, 1117
(Ala. 2003). “‘The reason for such disfavor is clear: “[P]ublic policy requires that
all persons shall resort freely to the courts for redress of wrongs and to enforce
their rights, and that this may be done without the peril of a suit for damages in the
event of an unfavorable judgment by jury or judge.”’” Id., quoting Mitchell, 854
So. 2d at 1117.
The elements required to support a claim of malicious prosecution under
Alabama law are virtually identical to those for a malicious prosecution claim
brought pursuant to § 1983. For the reasons discussed, supra, Jones had arguable
probable cause to seek an arrest warrant against the plaintiffs. The second and
third prongs of a state law malicious prosecution claim cannot be met as the claim
pertains to Jones.
Therefore, the plaintiff’s claim of state law malicious
prosecution is DISMISSED as to Jones. Because Jones sought the arrest warrants
for all of the plaintiffs, he is the only defendant that can be said to have initiated a
judicial proceeding against the plaintiffs.
Therefore, the plaintiff’s state law
malicious prosecution claims cannot stand against any of the other defendants, and
is due to be dismissed.
(e). Negligent Infliction of Emotional Distress
The plaintiff argues that the defendants acted recklessly, outrageously, and
in a grossly negligent manner.
She does not indicate what actions by the
defendants support these allegations, other than to incorporate by reference the
entire fact statement once again.
The court assumes she contends that the
defendant officers’ seeking of an arrest warrant without conducting a full
investigation into the custodial status of B.B. was reckless, outrageous, and grossly
negligent. The plaintiff alleges that the defendants’ actions caused her to suffer
“severe emotional trauma, increased anxiety and other serious symptoms which
required therapy and treatment.” (Case No. 7:14-cv-1537-TMP, Doc. 1, ¶¶ 80-82).
Whatever actions the plaintiff believes constitute the negligent infliction of
emotional distress, her claim cannot stand, because there is no cause of action for
negligent infliction of emotional distress under Alabama state law.
The Supreme Court of Alabama has expressly stated that “there is no cause
of action for the negligent infliction of emotional distress,” the Court “has
repeatedly stated that only intentional infliction of severe emotional distress is
actionable.” Allen v. Walker, 569 So. 2d 350, 352 (Ala. 1990), citing Green Tree
Acceptance, Inc. v. Standridge and El-Jay’s, Inc., 565 So. 2d 38 (Ala. 1990);
Busby v. Truswal Systems Corp., 551 So. 2d 322, 324 (Ala. 1989); Whitt v.
Hulsey, 519 So. 2d 901, 903-04 (Ala. 1987); American Road Service Co. v.
Inmon, 394 So. 2d 361, 365 (Ala. 1980) (emphasis in the original). Accordingly,
the plaintiff’s claim of negligent infliction of emotional distress is due to be
dismissed against all defendants.
(f). Felonious Interference with Custody
Finally, the plaintiff Bridget Byrd asserts a civil complaint against the
defendants for felonious interference with custody. The Alabama Code allows for
a civil action to be commenced by the injured party if the injury complained of
amounts to a felony. See Alabama Code § 6-5-370. The plaintiff argues that the
defendants committed an act equivalent to felonious interference with custody.
The Alabama criminal code defines felonious interference with custody as follows:
(a) A person commits the crime of interference with custody if he
knowingly takes or entices:
(1) Any child under the age of 18 from the lawful custody of its
parent, guardian or other lawful custodian. . .
(b) A person does not commit a crime under this section if the actor’s
sole purpose is to assume lawful control of the child.
The burden of injecting the issue is on the defendant, but this does
not shift the burden of proof.
(c) Interference with custody is a Class C felony.
Alabama Code § 13A-6-45 (1975).
The plaintiff argues that the defendants “feloniously injured the plaintiff by,
among other things, making false statements, swearing out a false warrant, issuing
said warrant, unlawfully incarcerat[ing] Byrd, and illegally remov[ing] the child
from her custody. Said actions resulted in an interference with custody as Byrd
was the sole legal custodian of the minor child at the time the child was illegally
removed from her custody.” (Case No. 7:14-cv-1537-TMP, Doc. 1, ¶¶ 91-93).
The Supreme Court of Alabama has explained that a plaintiff, to state a claim of
interference with custody, must plead facts tending to show the following:
(1) [S]ome active or affirmative effort by [the] defendant to detract
the child from the parent’s custody or service, (2) [that] the enticing or
harboring [was] willful, [and] (3) [that the enticing or harboring was
done] with notice or knowledge that the child had a parent whose
rights were thereby invaded.”
Anonymous v. Anonymous, 672 So. 2d 787, 790 (Ala. 1995) quoting 67A C.J.S.
Parent and Child § 131, p. 513 (1978) (citing in turn Kipper v. Vokolek, 546 S.W.
2d 521 (Mo. Ct. App. 1977)). None of the actions by Smith, Jones, or Cousette,
fall into the definition of felonious interference with custody.
First, taking custody of B.B. for the purpose of returning her to the person
who was believed to be her legal guardian falls into the category of “assuming
lawful control of the child,” and, therefore, does not constitute a crime under the
Alabama criminal statute. Even without the shield of subsection (b) the facts, as
they were believed at the time, were that the plaintiff was not B.B.’s lawful
custodian, and therefore would have no claim under § 13A-6-45. Finally, the
plaintiff has alleged no facts that B.B. was “enticed” or “harbored” by any
defendants (with the possible exception of the Williamses, who are not a part of the
current motion). The swearing of a complaint, the issuance of an arrest warrant,
and the execution of the arrest warrant cannot be regarded as “enticing” or
“harboring” the child for purposes of civil liability under the criminal statute.
Additionally, as to defendants Smith and Cousette, both are entitled to
judicial or quasi-judicial immunity. Smith did nothing more than act in her judicial
capacity to issue an arrest warrant. That act is entirely immune from civil liability.
Likewise, Cousette can be alleged to have done nothing more than execute the
arrest warrant (even though it was actually Michigan authorities that did so), and
this is absolutely immune under quasi-judicial immunity.
plaintiff’s claim of a civil action pursuant to Alabama Code § 6-5-370 based on the
violation of Alabama Code § 13A-6-45 is due to be dismissed.
The plaintiff in Byrd II names as defendants the City of Tuscaloosa (“the
City”) and the City of Tuscaloosa Police Department 19 (“the Department”), and
alleges all claims set forth in her complaint equally against those defendants. The
plaintiffs in Byrd I also name the City (but not the Police Department separately)
A city’s police department is not a legal entity subject to suit for purposes of § 1983
or under Alabama law. See Higginbotham v. City of Pleasant Grove, 2013 WL 5519557 *6
(N.D. Ala. Sept. 30, 2013),citing Rule 17 of the Federal Rules of Civil Procedure; Dean v.
Barber, 951 F.2d 1210, 1214 (11th Cir. 1992); Ex parte Dixon, 55 So. 3d 1171, 1171-72 & n. 1
(Ala. 2010). Accordingly, the claims against the Tuscaloosa Police Department by the plaintiff
in Byrd II are due to be dismissed.
as a defendant and allege all claims in the complaint against the City.
plaintiffs in Byrd I claim that the city of Tuscaloosa had a “pattern or practice of
issuing felony arrest warrants based upon the sworn affidavit of its police officers
without any supporting facts of probable cause.” (Doc. 1, ¶ 19). The plaintiffs in
Byrd I and Byrd II request punitive damages be awarded against the City.
A. Federal Claims
It is well-settled that a municipality cannot be liable for a constitutional tort
under § 1983 unless the deprivation of the constitutional right occurred as a result
of an official policy or custom of the governmental body.
See Monell v.
Department of Social Services of New York, 436 U.S. 658, 690-691, 98 S. Ct.
2018, 2036, 56 L. Ed. 2d 611 (1978). Moreover, “a municipality cannot be held
liable under § 1983 on a respondeat superior theory.” Id. at 691. The Eleventh
Circuit Court of Appeals has further determined that a municipality may be liable
under § 1983 for the actions of a police officer only when the city’s “official policy
caused the violation.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir.
In order to survive summary judgment on the § 1983 claims, the plaintiffs
must have come forward with evidence to show that the City had a policy – even if
unwritten or informal – of having officers seek out arrest warrants without
probable cause. Other than making the blanket statement that the City “had a
pattern or practice of issuing felony arrest warrants based upon the sworn affidavit
of its police officer without any supporting facts,” the plaintiffs in Byrd I do not
assert factual support for a claim against the City. (Emphasis added). Under Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S.
662 (2009), however, this is a conclusion masquerading as a factual allegation.
Even if it can be regarded as a factual allegation sufficient to allow the plaintiffs to
conduct discovery on the question, the factual allegations in plaintiffs’ own
complaint make clear that the warrants in this case were issued not by any official
of the City of Tuscaloosa, but by Rosina Smith, a magistrate with the Tuscaloosa
County District Court.
Because these were felony arrest warrants, they were
obtained from the district court, an agency of the State, not from the Tuscaloosa
Municipal Court, which has jurisdiction only of misdemeanors. Thus, it is clear
that no policy of or practice by the City of Tuscaloosa was implicated in the
issuance of the arrest warrants.
The plaintiff in Byrd II does not set out any specific claims against the City;
she simply names the City as a defendant and brings all of her claims against all
“defendants” generally. In Byrd II, the plaintiff discusses the City only in terms of
the case at bar. She does not make any allegations or offer any evidence that the
City has a pattern or practice of doing anything at all. Because the plaintiffs in
Byrd I and Byrd II fail to set forth sufficient factual allegations that the City has a
pattern or practice of doing anything improper, all federal claims against the City
in both complaints are due to be dismissed.
B. State-Law Claims
To the extent the plaintiff in Byrd II asserts her state law claims against the
City, those claims, as well, are due to be dismissed. The state law claims alleged
in Byrd II are as follows: malicious prosecution, intentional infliction of emotional
distress, false arrest, false imprisonment, defamation, negligent infliction of
emotional distress, and felonious interference with custody. First, a state law claim
of malicious prosecution “cannot lie against a municipality, because a municipality
cannot be deemed to act with malice.” Franklin v. City of Huntsville, 670 So. 2d
848, 850 (Ala. 1995), citing Neighbors v. City of Birmingham, 384 So. 2d 113
(Ala. 1980). Secondly, “under the principles of vicarious responsibility, where the
employee . . . had immunity, the municipality likewise had immunity.” Franklin,
670 So. 2d at 851, citing Gore v. City of Hoover, 559 So. 2d 163 (Ala. 1990). This
court already has found that Magistrate Smith, 20 Officer Cousette, and Investigator
Jones are entitled either to judicial, quasi-judicial, or discretionary function
immunity for the state law claims of false arrest, false imprisonment, and
interference with custody. Therefore, to the extent any of these claims are alleged
Of course, as already explained, Magistrate Smith was an employee of the
Tuscaloosa County District Court, not the City of Tuscaloosa. Whatever she did cannot be
attributed to the City.
against the City, they are due to be dismissed. The court also has determined that
none of the allegations by the plaintiff in Byrd II rise to the level of intentional
infliction of emotional distress, and that any communications alleged to be
defamatory were privileged.
Therefore, these claims, to the extent they are
asserted against the City, also are due to be dismissed. Finally, there is no state
law claim of negligent infliction of emotional distress. So, any such claim that is
brought against the City under state law also is due to be dismissed.
C. Punitive Damages
The plaintiffs in Byrd I and Byrd II assert that they are entitled to punitive
damages against all defendants, including the City of Tuscaloosa. To the extent
that the plaintiffs seek such damages against the municipal defendant, those
damages are unavailable as a matter of law. See Kentucky v. Graham, 473 U.S.
159, 105 S. Ct. 2099, 87 L. Ed. 2d 114 (1985); City of Newport v. Fact Concerts,
453 U.S. 247, 101 S. Ct. 2748, 69 L. Ed. 2d 616 (1981) (A municipality may not
be held liable for punitive damages in a § 1983 action). Under Alabama law,
punitive damages against a municipality are precluded by statute. See Alabama
Code § 6–11–26 (1975); Carson v. City of Prichard, 709 So. 2d 1199, 1205 (Ala.
1998). Thus, as against the City, there is no possibility of the recovery of punitive
damages under any theory.
For the reasons set forth herein, the Motion to Dismiss by defendants Jones,
Cousette, and the City, and later joined by Smith and converted into a Motion for
Summary Judgment (doc. 17), is due to be GRANTED. All claims in Byrd I and
Byrd II against these four defendants are due to be DISMISSED WITH
PREJUDICE. A separate order of judgment will be entered contemporaneously
herewith consistent with Rule 58.
DONE and ORDERED on May 11, 2015.
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE
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