Head v. Baisden et al
MEMORANDUM OPINION as more fully set out in order. Signed by Judge R David Proctor on 11/09/17. (SPT )
2017 Nov-09 PM 03:02
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CARY BAISDEN, et al.,
Case No.: 7:14-cv-01788-HNJ
This case is before the court on the Magistrate Judge’s June 29, 2017 Report and
Recommendation (Doc. # 32) and Defendant Cary Baisden’s Objections to the Report and
Recommendation (Doc. # 33). Although Defendant Baisden has filed objections, he has not
objected to the Report and Recommendation’s description of the Amended Complaint.
Accordingly, the court accepts and adopts that description for purposes of reviewing Baisden’s
Standard of Review
The court reviews objected-to portions of a Magistrate Judge’s report and
recommendation de novo. Heath v. Jones, 863 F.2d 815, 822 (11th Cir. 1989). The court
reviews those portions that are not specifically objected to under the “clearly erroneous”
standard. See Liberty Am. Ins. Grp., Inc. v. WestPoint Underwriters, L.L.C., 199 F. Supp. 2d
1271, 1276 (M.D. Fla. 2001).
Analysis of Objections
After careful review, and for the reasons explained below, the court concludes that
Baisden’s objections are due to be sustained as to Plaintiff’s outrage claim, but otherwise
Objections to the Magistrate Judge’s Analysis of Unlawful Search and False
Defendant Baisden argues that the Amended Complaint contains a conclusory allegation
that he stopped and searched Plaintiff’s vehicle for no discernible reason. (Doc. # 33 at 4-5).
Baisden insists that the Amended Complaint should have alleged the facts known to Baisden
before conducting the traffic stop in order to state a plausible violation of clearly established
Fourth Amendment law. (Id. at 5-6). Moreover, Baisden argues that the search can be justified
or qualified immunity can be granted by considering several exceptions to the Fourth
Amendment’s warrant requirement. (See id. at 7-13). The court is not convinced by any of these
First, Plaintiff’s Amended Complaint presents sufficient allegations of facts to support its
contention that Baisden lacked a discernible reason for the traffic stop. Plaintiff alleges that he
was driving with a friend in Tuscaloosa when Baisden turned on his blue lights to pull the
vehicle over. (Doc. # 20 at ¶¶ 8-9). According to Plaintiff, he immediately pulled off of 10th
Avenue onto a side street. (Id. at ¶ 9). Plaintiff states that Baisden lied during a probable cause
hearing when he testified that (1) Plaintiff sped up and traveled an eighth of a mile before
stopping, and (2) Baisden immediately observed a gun in the vehicle. (Id. at 3-4 nn. 3 & 4).
Indeed, Plaintiff avers that Baisden examined the vehicle for eight minutes before entering it
Because the Magistrate Judge’s recommendations concerning the unlawful search and false arrest claims
are due to be affirmed without consideration of the law of the case doctrine, the court need not discuss the contours
of that doctrine here. The court addresses that objection further below.
without a warrant, an assertion that plausibly alleges Baisden tried and failed to find contraband
in plain view to justify entering the vehicle. (Id. at ¶ 16). These allegations plausibly assert that
Baisden lacked reasonable suspicion for an investigatory traffic stop. United States v. Lewis, 674
F.3d 1298, 1303 (11th Cir. 2012) (describing the Fourth Amendment standards for an
Second, Defendant Baisden incorrectly contends that Plaintiff must explicitly plead what
was known by Baisden at the time of the traffic stop to proceed past the motion to dismiss stage.
It is true that the court must consider the facts known to Baisden at the time of the stop to
determine whether Baisden had arguable probable cause for the arrest. See Jones v. Cannon, 174
F.3d 1271, 1283 (11th Cir. 1999). It does not follow, however, that a plaintiff is obligated to
explicitly plead the facts a defendant “knew” to present a plausible unlawful search or false
arrest claim. This is so because the court can plausibly infer that a police officer observed the
events pled by a plaintiff in a complaint. So, if a plaintiff pleads that he followed all traffic laws
and was nonetheless pulled over, a plausible inference is that the officer observed no traffic
violation justifying a stop. That inference may be overcome by testimony or other evidence
presented later in the case, but it is enough for the case to proceed to discovery.
Third, Plaintiff has plausibly alleged that Baisden’s warrantless search occurred during an
investigatory stop, not an arrest.
Defendant Baisden insists that the warrantless search of
Plaintiff’s vehicle was permitted under numerous exceptions for searches incident to an arrest
because Plaintiff had been arrested by the time of the search. (See Doc. # 33 at 7-13). There is
not a brightline test distinguishing an investigatory stop from an arrest.
United States v.
Blackman, 66 F.3d 1572, 1576 (11th Cir. 1995). The court must consider the degree of intrusion
on the detainee’s freedom to determine whether it constitutes an arrest. Id. Factors to be
considered include “the public interest served by the seizure, the nature and scope of the
intrusion, and the objective facts relied upon by the officers.” Id.
While Plaintiff has stated that Baisden pointed a gun towards him and placed him in
handcuffs, Plaintiff alleges that Baisden explicitly stated that he was not under arrest. (Doc. # 20
at ¶¶ 11-12, 14). Baisden insists that the stop must be construed as an arrest because he pointed a
firearm at Plaintiff and directed him to put his hands in the air. (Doc. # 33 at 7). But this is not
necessarily so. As the Eleventh Circuit clearly explained in Blackman, “the fact that police
handcuff the person or draw their weapons does not, as a matter of course, transform an
investigatory stop into an arrest.” 66 F.3d at 1576. Indeed, the stop Plaintiff has alleged is very
similar to the stop presented in Blackman, where officers handcuffed the defendants after they
had voluntarily exited an apartment and one police officer allegedly pointed a gun at one
defendant during the course of the investigatory stop.
Id. at 1574.
At this stage of the
proceedings, the court cannot say that it is implausible that Baisden’s stop of Plaintiff was an
investigatory stop rather than an arrest.2
Finally, the court declines to address whether Defendant Baisden’s search of the vehicle
was justified by the automobile search exception to the Fourth Amendment’s warrant
requirement because Baisden raised that argument for the first time in his objections to the
Report and Recommendation. Baisden did not argue in the pending Motion to Dismiss that the
search was justified under the automobile search exception.
(See Doc. # 25 at 7-10).
Because Plaintiff has plausibly pled that Baisden searched the vehicle prior to Plaintiff’s arrest, the
Fourth Amendment standard for warrantless automobile searches incident to arrest from Arizona v. Gant, 556 U.S.
332, 351 (2009), cannot establish the constitutionality of the search at this stage of the proceedings. (See Doc. # 33
at 9-10). Likewise, Baisden’s argument that the search was justified as an inventory search is wholly incorrect
because the Amended Complaint indicates that the search occurred before Plaintiff’s arrest and any subsequent
impoundment of the vehicle. Cf. United States v. Crawford, 294 F. App’x 466, 472 (11th Cir. 2008) (“[A]
warrantless inventory search of a legally impounded car conducted pursuant to an established procedure is valid
under the Fourth Amendment.”).
Consequently, the Magistrate Judge did not analyze whether the automobile search exception
justified the search described in the Amended Complaint. (See Doc. # 32 at 26-27). Although
the court has the authority to consider arguments raised for the first time in an objection to a
report and recommendation, Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009), it
declines to do so with respect to the automobile search exception because that issue was not
addressed in the Magistrate Judge’s Report and Recommendation and has not been sufficiently
developed at this time.3
Objection to the Magistrate Judge’s Analysis of Malicious Prosecution Claim
Baisden argues that the Magistrate Judge erred by determining that he lacked arguable
probable cause for the arrest and detention of Plaintiff. (Doc. # 33 at 5-6, 13). Baisden also
argues that nothing in the Amended Complaint suggests that he continued a criminal prosecution
or judicial proceeding against Plaintiff.4 (Id. at 13). With regard to the state-law malicious
prosecution claim, Baisden insists that he is entitled to state-law immunity. (Id. at 14). All of
these objections are due to be overruled.
“To establish a federal malicious prosecution claim under § 1983, a plaintiff must prove
(1) the elements of the common law tort of malicious prosecution, and (2) a violation of her
In any event, it is likely that Plaintiff has plausibly alleged Baisden’s lack of probable cause to believe
that the vehicle contained evidence of a crime. Cf. United States v. Ross, 456 U.S. 798, 799-800 (1982) (explaining
the scope of the automobile search rule established in Carroll v. United States, 267 U.S. 132 (1925)). According to
Plaintiff, two officers examined the interior of his vehicle through the windows for several minutes, and Baisden
examined the vehicle’s interior through the windows for eight minutes. (Doc. # 20 at ¶ 15). Officers opened the
vehicle after the visual examination discovered no contraband. (Id. at ¶ 16). Because the Amended Complaint avers
that the officers examined the vehicle for several minutes (presumably in an attempt to find plainly visible
contraband) and only opened the vehicle after the lengthy examination, it follows that Plaintiff has plausibly alleged
that the officers lacked probable cause to believe that the vehicle contained contraband before they opened it.
Alternatively, Baisden argues that Plaintiff waived the malicious prosecution claim against him because
one paragraph of the claim avers that it “is brought against Defendant Anderson in his individual capacity.” (Docs.
# 20 at ¶ 68; 28 at 8-9; 33 at 13). A review of the malicious prosecution claim, though, reveals that (1) it was
brought against all Defendants, (2) it alleges malicious conduct committed by Defendant Baisden, and (3) Plaintiff
either mistakenly substituted Anderson for Baisden or omitted the word “also” from paragraph 68. (See Doc. # 20 at
¶¶ 64-70). This objection is meritless and due to be overruled.
Fourth Amendment right to be free from unreasonable seizures.” Kingsland v. City of Miami,
382 F.3d 1220, 1234 (11th Cir. 2004). The elements for a malicious prosecution claim include:
(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.” Wood v. Kesler, 323 F.3d 872, 882 (11th Cir. 2003).
Alabama’s elements for malicious prosecution follow the common law elements. Delchamps,
Inc. v. Bryant, 738 So. 2d 824, 831-32 (Ala. 1999). And, Alabama law provides that a party
providing testimony to a prosecuting authority may be sued for malicious prosecution if he or
she brings about the indictment or prosecution through perjury. Shoney’s Inc. v. Barnett, 773 So.
2d 1015, 1023 (Ala. Civ. App. 1999).
An arrest becomes constitutionally unreasonable if done without probable cause.
Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997). Therefore, if the arrest was based
upon probable cause, a Section 1983 malicious prosecution claim necessarily fails. Kjellsen v.
Mills, 517 F.3d 1232, 1237 (11th Cir. 2008). Also, as with a claim of unlawful arrest, an officer
raising the defense of qualified immunity must only show arguable probable cause to defeat a
malicious prosecution claim. Grider v. City of Auburn, Ala., 618 F.3d 1240, 1257 n. 25 (11th
Cir. 2010) (applying the “same ‘arguable probable cause’ standard in the qualified immunity
context” for a § 1983 malicious prosecution claim).
Here, the court agrees with the Magistrate Judge that Baisden plausibly lacked arguable
probable cause for Plaintiff’s arrest because the arrest described in the Amended Complaint was
based solely on the fruits of the unconstitutional search. Moreover, Plaintiff plausibly indicates
that Baisden gave perjured testimony during a probable cause hearing that caused a state-court
judge to find probable cause for Plaintiff’s arrest. (See Doc. # 20 at ¶¶ 18-21). If true, Baisden
cannot rely on qualified immunity to shield himself from liability for such false statements.
Jones, 174 F.3d at 1285. Likewise, Baisden cannot receive state-agent immunity for the statelaw malicious prosecution claim because Plaintiff’s version of events shows a lack of arguable
probable cause and malice. Grider, 618 F.3d at 1259.
Objection to the Magistrate Judge’s Analysis of the Outrage Claim
Baisden argues that the Magistrate Judge erred by applying the law-of-the-case doctrine
to foreclose further review of the outrage claim. (Doc. # 33 at 2-3, 13). But here, the question of
whether the law-of-the-case doctrine applies to earlier opinions issued in this case is not
This is the case because, in any event, the undersigned clearly erred by not
dismissing Plaintiff’s outrage claim when ruling on the first Report and Recommendation issued
in this case. Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1370-71 (11th Cir. 2003).
The elements of the tort of intentional infliction of emotional distress, also called the tort
of outrage, are that (1) “the defendant’s conduct was intentional or reckless,” (2) the conduct
“was extreme and outrageous,” and (3) the conduct “caused emotional distress so severe that no
reasonable person could be expected to endure it.” Ex parte Crawford & Co., 693 So. 2d 458,
460 (Ala. 1997). The Alabama Supreme Court in Potts v. Hayes, 771 So. 2d 462 (Ala. 2000),
stated that it has recognized the tort of outrage “in regard to only three kinds of conduct:
(1) wrongful conduct in the family-burial context; (2) barbaric methods employed to coerce an
insurance settlement; and (3) egregious sexual harassment.”
Id. at 465 (internal citations
omitted). These three kinds of categories are not necessarily the only sufficient type of conduct
that could plausibly plead intentional infliction of emotional distress.5 Little v. Robinson, 72 So.
In O’Rear v. B.H., 69 So. 3d 106 (Ala. 2011), abrogated in part on other grounds by Ex parte
Vanderwall, 201 So. 3d 525 (Ala. 2015), the Alabama Supreme 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
3d 1168, 1172-73 (Ala. 2011). Nevertheless, the guiding inquiry is ultimately whether a plaintiff
has alleged facts “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.” Am. Road Serv. Co. v. Inmon, 394 So. 2d 361, 365 (Ala. 1980). Whether a claim
presents the requisite level of outrageousness to sustain a claim for intentional infliction of
emotional distress is a question of law. McGinnis v. Am. Home Mortg. Servicing, Inc., 817 F.3d
1241, 1258 (11th Cir. 2016).
Here, Plaintiff has not pled conduct sufficiently outrageous conduct to support an outrage
claim under Alabama law. Baisden’s allegedly unconstitutional conduct during the search and
his false testimony during the probable cause hearing are not analogous to the three categories of
conduct deemed outrageous in Potts. See 771 So. 2d at 465. Nor it is analogous to the sexual
misconduct and professional misconduct deemed outrageous in O’Rear. See O’Rear, 69 So. 3d
at 118-19. The initial Report and Recommendation relied on Woodruff v. City of Tuscaloosa,
101 So. 3d 749, 755 (Ala. 2012), to support the proposition that “the tort of outrage may be
actionable in cases also alleging malicious prosecution and false arrest, where the plaintiff has
alleged that he suffered emotional distress.” (Doc. # 13 at 39). To the contrary, the Woodruff
opinion did not address the extreme and outrageous conduct element of the tort. See 101 So. 3d
at 754-56. Rather, it affirmed the dismissal of the plaintiff’s outrage claim because the plaintiff
clearly asserted that he did not suffer emotional distress from the alleged outrageous conduct. Id.
at 755-56. Thus, the court cannot rely on the Woodruff opinion as support for an outrage claim
premised upon the allegations in the Amended Complaint.
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.” Little v. Robinson, 72 So. 3d 1168, 1172-73 (Ala. 2011).
The initial Report and Recommendation also determined that a plaintiff may have a
viable outrage claim “where police officers abuse the public trust and act outside the bounds of
their positions.” (Doc. # 13 at 40). The best opinion to support the abuse-of-public-trust outrage
claim suggested by the initial Report and Recommendation is Woodley v. City of Jemison, 770
So. 2d 1093 (Ala. Civ. App. 1999). In Woodley, a police officer reportedly harassed a woman
with several obscene and threatening telephone calls. 770 So. 2d at 1094. When the woman
obtained a new, unlisted telephone number, the officer insisted that she file a police report about
the calls and received the woman’s new telephone number through the reporting process. Id. at
1095. The harassing calls commenced soon thereafter. Id. The Alabama Court of Civil Appeals
held that the officer’s obscene telephone calls could support an outrage claim because the
officer’s breach of the public’s trust that granted him access to private information went “beyond
the bounds of decency.” Id. at 1096.
Baisden’s actions do not present a comparable breach of the public’s trust in police
officers. Unlike the officer in Woodley, Baisden is not alleged to have used private information
obtained through his job duties for personal purposes. Rather, Plaintiff alleges that Baisden
performed an unconstitutional search and lied under oath to protect a prosecution based on the
fruits of that search. The Eleventh Circuit has distinguished lies given by an officer in an attempt
to perform work duties from the breach of public trust at issue in Woodley and has held that such
lies do not constitute extreme and outrageous conduct that supports an Alabama outrage claim.
Tinker v. Beasley, 429 F.3d 1324, 1330-31 (11th Cir. 2005) (distinguishing false information
given to a prisoner about her legal representation from Woodley because the officers lied to the
prisoner “with a view to accomplishing something within the bounds of their role as police
officers”). While Baisden’s alleged perjury is distinguishable from the false statements and
coercive questioning at issue in Tinker, it is also distinguishable from the harassing conduct at
issue in Woodley. And, the court observes that Baisden’s alleged conduct readily gives rise to a
malicious prosecution claim that protects criminal defendants from perjury by officers during
probable cause hearings.
Cf. id. at 1330-31 (distinguishing coercive questioning during a
criminal investigation from coercive conduct by insurance investigators because there was “no
other civil law effectively preventing” coercive conduct by insurance investigators). Thus,
Plaintiff’s allegations do not establish a plausible outrage claim under Woodley.
For the reasons explained above, the court clearly erred in its initial conclusion that the
outrage claim was due to go forward. And, the court’s initial ruling on the outrage claim would
cause a manifest injustice if the court did not remedy it because (1) Baisden could be held liable
for outrage based on conduct that Alabama courts have not deemed extreme and outrageous, and
(2) Baisden, a public officer, would be required to defend against a claim for which he should
not be held liable. See Moulds v. Bullard, 452 F. App’x 851, 855-56 (11th Cir. 2011) (affirming
the district court’s reversal of an earlier ruling where the clear legal error could affect the
outcome of the case and would require the defendants to defend themselves against litigation).
While the court must defer to its earlier legal conclusion in “a close case,” this case is not close.
See Jenkins Brick, 321 F.3d at 1371. Accordingly, the court is compelled to grant Baisden’s
motion to dismiss the outrage count in the Amended Complaint.
For the reasons explained above, Defendant Baisden’s objections to the Magistrate
Judge’s Report and Recommendation (Doc. # 33) are due to be sustained in part and overruled in
part. The Magistrate Judge’s Report and Recommendation (Doc. # 32) is due to be adopted in
part and overruled in part. The court will grant the Motions to Dismiss filed by Defendants
Stephen D. Anderson and the City of Tuscaloosa. Moreover, it will grant Defendant Baisden’s
Motion to Dismiss in part and deny it in part. An Order consistent with this Memorandum
Opinion will be entered.
DONE and ORDERED this November 9, 2017.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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