Mack v. Maddox et al

Filing 23

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 6/19/2017. (PSM)

FILED
2017 Jun-19 AM 11:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
WILLIE LOUIS MACK,
Plaintiff,
vs.
WALTER MADDOX, et al.,
Defendants.

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7:16-cv-01872-LSC

Memorandum of Opinion
Plaintiff Willie Louis Mack (“Mack”), proceeding pro se, filed this action
against Defendants Walter Maddox (“Maddox”), in his official capacity as the
Mayor of the City of Tuscaloosa; the West Alabama Narcotics Task Force
(“WANTF”); and several WANTF agents and criminal investigators, 1 in their
individual and official capacities (collectively, “Defendants”), alleging claims
under 42 U.S.C. §§ 1983 and 1985. Before this Court are motions to dismiss filed
by Larkin (Doc. 7); Windham, Mills, Cousette, and Jones (Doc. 13); and Maddox
(Doc. 15). For the reasons stated more fully herein, Larkin’s motion is due to be

1

These individuals are Deputy M.T. Larkin (“Larkin”), as well as Windham, Mills, Cousette,
and Jones, who are identified only by their last names. The complaint alleges that Windham and
Mills are WANTF agents and that Cousette and Jones are criminal investigators employed by the
City of Tuscaloosa (the “City”).
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granted in part and denied in part. Maddox’s motion to dismiss and the motion to
dismiss filed by Windham, Mills, Cousette, and Jones are due to be granted.
I.

Background 2
On November 18, 2014, Tuscaloosa County Circuit Judge Brad Almond

issued a warrant authorizing the search of Mack’s address, which was described as
“a tan residence with a red roof,” for controlled substances. The subject of the
warrant was an individual named Anthony Carl Benson (“Benson”), “a black male
in his mid[-]twenties [who is] approximately 6’05” tall and weighs approximately
252 pounds.” Larkin prepared the warrant application, and his affidavit in support
of the warrant asserted that he “received information from a reliable confidential
informant that ha[d] personally observed a quantity of marijuana in the possession
of a black male known as [Benson] while at his residence,” which was stated to be
Mack’s address.
The morning of November 20, 2014, Windham, Mills, Cousette, and Jones
arrived at Mack’s residence to execute the warrant. When Mack answered the
door, the officers, who were dressed in plain clothes, identified themselves as
members of WANTF. Windham, the lead WANTF agent, asked Mack if Benson

2

In evaluating a motion to dismiss, this Court “accept[s] the allegations in the complaint as true
and construe[s] the facts in the light most favorable to the plaintiff.” Johnson v. Midland Funding,
LLC, 823 F.3d 1334, 1337 (11th Cir. 2016).
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was present at the home, and Mack told the officers that Benson did not live there.
Windham then stated that WANTF had “conducted a controlled drug buy” inside
Mack’s residence on November 17, 2014, during which Benson sold marijuana to a
WANTF confidential informant. Windham also informed Mack that WANTF had
a warrant to search the home. When Mack asked to see the warrant, the officers
showed him the warrant for which Larkin had applied several days earlier.
Mack then began to argue with the officers, stating that they knew Benson
did not live at Mack’s residence and had never visited Mack’s home since Mack
had lived there. Mack also stated that the officers knew that Benson had never sold
marijuana from Mack’s home or on Mack’s property. Mack alleges that a video,
which he has attached to his complaint, demonstrates the officers’ knowledge of
these facts because the video shows that the sale to the confidential informant
actually occurred inside a vehicle that was parked on the public street. Windham
ignored Mack’s arguments, however, and ordered another agent to place Mack and
his wife, Angela Roberts (“Roberts”), in handcuffs. During a search of the home
and of Mack’s and Roberts’s person, the officers discovered “a pack of Top
Cigarette rolling papers and a single partially smoked marijuana cigarette.”

Page 3 of 24

II.

Standard of Review

In general, a pleading must include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). However, in
order to withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a
complaint “must plead enough facts to state a claim to relief that is plausible on its
face.” Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1347–48 (11th Cir. 2016) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal quotation marks
omitted). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Stated
another way, the factual allegations in the complaint must be sufficient to “raise a
right to relief above the speculative level.” Edwards v. Prime, Inc., 602 F.3d 1276,
1291 (11th Cir. 2010). A complaint that “succeeds in identifying facts that are
suggestive enough to render [the necessary elements of a claim] plausible” will
survive a motion to dismiss. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1296 (11th Cir.
2007) (quoting Twombly, 550 U.S. at 556) (internal quotation marks omitted).
In evaluating the sufficiency of a complaint, this Court first “identif[ies]
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679. This Court then “assume[s] the[]
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veracity” of the complaint’s “well-pleaded factual allegations” and “determine[s]
whether they plausibly give rise to an entitlement to relief.” Id. Review of the
complaint is “a context-specific task that requires [this Court] to draw on its
judicial experience and common sense.” Id. If the pleading “contain[s] enough
information regarding the material elements of a cause of action to support
recovery under some ‘viable legal theory,’” it satisfies the notice pleading
standard. Am. Fed’n of Labor & Cong. of Indus. Orgs. v. City of Miami, 637 F.3d 1178,
1186 (11th Cir. 2011) (quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d
678, 683–84 (11th Cir. 2001)). Additionally, because Mack proceeds pro se in this
matter, his complaint, “however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106)).
III. Discussion
A. Statute of Limitation
Defendants assert that Mack’s claims are time-barred because his complaint
was filed beyond the two-year statute of limitation. “Claims brought pursuant to
[§ 1983] are subject to the . . . limitations period governing personal injury actions
in the state where the action is brought.” Wellons v. Comm’r, Ga. Dep’t of Corr.,
754 F.3d 1260, 1263 (11th Cir. 2014). In Alabama, general personal injury actions
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must be brought within two years of the date the action accrues. Ala. Code § 6-238(l); see City of Birmingham v. Leberte, 773 So. 2d 440, 444 n.1 (Ala. 2000)
(quoting Payne v. Ala. Cemetery Ass’n, 413 So. 2d 1067, 1072 (Ala. 1982)). The
events alleged in Mack’s complaint occurred on November 20, 2014. Pursuant to
§ 6-2-38(l), any action based on those events must have been filed on or before
November 20, 2016. Mack’s complaint was filed on November 21, 2016. 3
Mack first asserts that because his complaint alleges intentional conduct, the
six-year statute of limitation applicable to actions for “trespass to person or
liberty” governs the timeliness of his suit. See Ala. Code § 6-2-34(1). Because
Alabama law “provides multiple statutes of limitation[] for personal injury
actions,” however, this Court must apply “the general or residual statute for
personal injury actions” to a § 1983 claim, rather than the statute of limitation
addressing particular intentional torts. Owens v. Okure, 488 U.S. 235, 249–50
(1989). Mack’s suit is thus subject to the two-year limitations period for general
personal injury actions, Ala. Code § 6-2-38(l), and he must have filed his complaint
by November 20, 2016.

3

Although Mack’s hand-filed complaint was not entered onto the docket by the Clerk until
November 23, 2016, the docket entry clearly states that the complaint was filed on November 21,
2016.
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Mack next argues that because November 20, 2016, was a Sunday and the
courthouse was closed, his complaint was timely filed because he filed it on the
next business day. Fed. R. Civ. P. 6(a)(1) 4 provides that “if the last day [of the
limitations period] is a Saturday, Sunday, or legal holiday, the period continues to
run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”
Therefore, the limitations period applicable to Mack’s claims expired on Monday,
November 21, 2016. His complaint was timely filed, and Defendants’ motions to
dismiss on this ground are due to be denied.
B. Maddox’s Motion to Dismiss
Because Mack brings suit against Maddox in his official capacity as “Mayor
for the City of Tuscaloosa,” his claims against Maddox are construed as claims
against the City. Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (per
curiam). In order to state a § 1983 claim against a municipal defendant, a plaintiff
must demonstrate “that the City had a policy, custom, or practice that caused the
deprivation” of the plaintiff’s constitutional rights. Hoefling v. City of Miami, 811
F.3d 1271, 1279 (11th Cir. 2016). Thus, the plaintiff must allege that the
4

Because federal courts “borrow” a state statute of limitation for § 1983 claims, Lufkin v.
McCallum, 956 F.2d 1104, 1106 (11th Cir. 1992), Fed. R. Civ. P. 6(a) “govern[s] the computation
of the limitations period.” Merriweather v. City of Memphis, 107 F.3d 396, 398 (6th Cir. 1997).
This distinction is immaterial, however, as application of the Alabama statute governing
computation of time leads to an identical result in this case. See Ala. Code § 1-1-4 (“[I]f the last
day is Sunday, . . . the next succeeding secular or working day shall be counted as the last day
within which the act may be done.”).
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constitutional violation was caused by “an official policy enacted by [a
municipality’s] legislative body,” id., or “a practice or custom that is so pervasive[]
as to be the functional equivalent of a policy adopted by the final policymaker,”
Goodman v. Kimbrough, 718 F.3d 1325, 1335 (11th Cir. 2013).
Maddox argues that Mack has failed to allege that the City had such a policy,
custom, or practice. Mack responds that he “made various attempts” to obtain
copies of the City’s procedures related to “seeking and executing search warrants”
and “relying upon the information of a confidential informant” but was informed
“that such information is . . . not available to the public.” He asks this Court to
order Defendants to provide this information to him. However, “discovery follows
the filing of a well-pleaded complaint. It is not a device to enable the plaintiff to
make a case when his complaint has failed to state a claim.” Carter v. DeKalb Cnty.,
Ga., 521 F. App’x 725, 728 (11th Cir. 2013) (per curiam) (quoting Chudasama v.
Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997)) (internal quotation marks
omitted) (emphasis deleted); see Iqbal, 556 U.S. at 678–79 (“Rule 8 . . . does not
unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.”). Because a motion to dismiss for failure to state a claim upon which
relief can be granted “presents a purely legal question[,] . . . neither the parties nor

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the court have any need for discovery before the court rules on the motion.”
Chudasama, 123 F.3d at 1367.
Even if Mack’s complaint is construed liberally, as it must be, Erickson, 551
U.S. at 94, he does not allege facts demonstrating that a municipal policy or custom
caused any deprivation of his rights. Rather, he states that “because each of the
Defendant(s) West Alabama Narcotics Task Force and its Agents operates and are
empowered to act under the color of law as agents for the City of Tuscaloosa by the
City Counsel and Mayor’s office both, Mayor Walter Maddox and the City of
Tuscaloosa are directly responsible for not only the agents’ deliberate indifference
for and a complete and deliberate depravation of Plaintiff’s civil and constitutional
rights . . . but also for their agents’ knowing and intentionally egregious and
extremely gross misconduct.” These allegations sound in vicarious liability, which
cannot serve as the basis for § 1983 liability against a municipality. Hoefling, 811
F.3d at 1279 (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 693–94 (1978)).
Maddox’s motion to dismiss is therefore due to be granted.
C. Larkin’s Motion to Dismiss
1. Official Capacity Claims
Larkin first argues that, as a deputy sheriff, he is absolutely immune from
Mack’s claims against him in his official capacity. The Eleventh Amendment
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prohibits suits against a state in federal court without that state’s consent, and this
sovereign immunity “extend[s] to state officials, acting in their official capacit[ies],
where an agency or individual may be treated as an arm of the State.” Melton v.
Abston, 841 F.3d 1207, 1233 (11th Cir. 2016) (per curiam) (internal quotation marks
omitted). To determine whether an official acts as an “arm of the State,” this
Court looks to “the particular function in which the [official] was engaged when
taking the actions out of which liability is asserted to arise” and considers (1) how
state law defines the entity of which the defendant is a part; (2) what degree of
control the state maintains over the entity; (3) where the entity derives its funds;
and (4) who is responsible for judgments against the entity. Manders v. Lee, 338
F.3d 1304, 1308–09 (11th Cir. 2003) (en banc). If a weighing of the factors
demonstrates that the official is subject to the control of the state when performing
the particular function at issue, the official acts on behalf of the state and is entitled
to the state’s Eleventh Amendment immunity with regard to claims against him in
his official capacity. See Lake v. Skelton, 840 F.3d 1334, 1337–38 (11th Cir. 2016).
The first of these factors, how state law defines the entity, weighs in favor of
the application of Eleventh Amendment immunity. Larkin submitted the affidavit

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for the search warrant by virtue of his position as a deputy sheriff. 5 In Alabama, a
deputy sheriff is “the alter ego of the sheriff,” and his acts are considered to be
“the acts of the sheriff.” Alexander v. Hatfield, 652 So. 2d 1142, 1144 (Ala. 1994).
The “sheriff for each county” is an executive officer of the state. Ala. Const. art V,
§ 112; Parker v. Amerson, 519 So. 2d 442, 443 (Ala. 1987). His powers and duties
derive from the state legislature. Ala. Code § 36-22-3. Each sheriff is elected by
voters of the county he serves, Ala. Const. art. V, § 138, and the exercise of his
authority is largely limited to that county, Ala. Code § 36-22-3. Nonetheless,
Alabama law clearly defines the sheriff as a state officer. See Ex parte Shelley, 53 So.
3d 887, 891 (Ala. 2009); Parker, 519 So. 2d at 444 (“The drafters [of the Alabama
Constitution] thought sheriffs to be members of the executive branch who executed
the laws of the state in the several counties.”); see also Ex parte Blankenship, 893 So.
2d 303, 305 (Ala. 2004) (providing that with respect to claims arising under
Alabama law, “an action against a sheriff—or a deputy sheriff—for damages arising
out of the performance of his duties is essentially a suit against the state” (internal
quotation marks omitted)).

5

Larkin stated in the warrant affidavit attached to the complaint that he acted both as “a deputy
with the Tuscaloosa County Sheriff’s Office” and as “an investigator with [WANTF].” Because
Larkin participated in WANTF through his employment as a deputy sheriff, this Court treats
Mack’s official capacity claims against Larkin as claims against him in his capacity as a deputy
sheriff.
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The second factor, where state law vests control over the relevant function,
also weighs in favor of Eleventh Amendment immunity. Alabama law provides that
the sheriff has a duty “[t]o, with the assistance of deputies as necessary, ferret out
crime, apprehend and arrest criminals[,] and . . . secure evidence of crimes in [his]
count[y].” Ala. Code § 36-22-3(4). The application for a search warrant pursuant
to a criminal investigation—the function at issue here—is logically included within
the sheriff’s law enforcement duties. The county commission, as the county’s
governing body, “cannot instruct the sheriff how to ferret out crime, how to arrest
a criminal, or how to secure evidence of a crime.” McMillian v. Monroe Cnty., 520
U.S. 781, 790 (1997); see White v. Birchfield, 582 So. 2d 1085, 1088 (Ala. 1991)
(“The state has a manifest interest and concern for the observance and
enforcement of its criminal laws, and in the freedom of its officers to perform their
duty in the detection of offenses and offenders against its laws. To restrain the
sheriff and his deputies in that regard impinges upon—brings into question—the
powers of the state itself.” (quoting Montiel v. Holcombe, 199 So. 245, 246 (Ala.
1940)). By contrast, the attorney general and the governor, who are also executive
officers of the state, Ala. Const. art. V, § 112, may direct the sheriff to investigate
“any alleged violation of law” within his county. Ala. Code § 36-22-5; see
McMillian, 520 U.S. at 791. Further, the circuit judge presiding over the county
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served by the sheriff—a state officer—“exercise[s] a general supervision of” the
sheriff to ensure “the prompt, diligent discharge of [his] duties.” Ala. Code § 1217-24; see id. § 36-22-3(2) (commanding sheriff “to obey the lawful orders of [the]
courts”). The authority to remove a sheriff from office in the event of misconduct
is vested in the Alabama Supreme Court. Ala. Const. art. VII, § 174; see State ex rel.
Strange v. Clark, No. 1151021, 2016 WL 4044903 (Ala. 2016) (to be published in
So. 3d). Taken together, these facts demonstrate that the state, rather than an
individual county, authorizes the sheriff to perform his law enforcement duties, and
while the county cannot direct the sheriff’s efforts to do so, state officials may.
This supports the conclusion that a sheriff acts as a state officer for the purpose of
applying for a search warrant.
The third factor, “the source of funding for the function at issue,” Lake, 840
F.3d at 1343, also favors immunity, though to a lesser degree than the preceding
factors. In general, the county commission funds the operation of the sheriff’s
office. Ala. Code § 36-22-18 (directing county commission to “furnish the sheriff”
with materials “reasonably needed for the proper and efficient conduct of the
affairs of the sheriff’s office”). The sheriff’s salary is also paid from the county
treasury. Id. § 36-22-16(a). Fees payable to the sheriff’s office are placed into the
county’s general fund. Id. § 36-22-17. However, the fact that the county “bears the
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major burden” to fund the sheriff’s office does not urge a finding that the sheriff is
a county officer, rather than a state officer. See Manders, 338 F.3d at 1323. The
county funds the sheriff’s office because state law “so mandates,” and any
“financial control” the county exercises over the sheriff “is attenuated.” Id.; see
McMillian, 520 U.S. at 791–92 (“The county commissions do . . . have the
discretion to deny funds to the sheriffs for their operations beyond what is
‘reasonably necessary.’ But at most, this discretion would allow the commission to
exert an attenuated and indirect influence over the sheriff’s operations.” (internal
citation omitted)). “Payment of [the sheriff’s] budget, when required by the State,
does not establish any control by [the county]” over the sheriff’s law enforcement
duties, and “state involvement [through legislation directing the funding of the
sheriff’s office] is sufficient to tilt the third factor of the Eleventh Amendment
analysis toward immunity.” Manders, 338 F.3d at 1324.
The fourth and final factor, the responsibility for payment of judgments, is
least supportive of granting Eleventh Amendment immunity but is insufficient to
tip the scales toward the denial of immunity. See id. at 1328. Alabama law is clear
that the county is not vicariously liable for the acts of the sheriff, White, 582 So. 2d
at 1087, and is not responsible for the payment of adverse judgments on this basis.
See Manders, 338 F.3d at 1326. State law neither directs the county to pay
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judgments against the sheriff nor provides that the state will do so. The source of
funding for the payment for adverse judgments is therefore unclear, but “the
Supreme Court [has never] required an actual drain on the state treasury as a per se
condition of Eleventh Amendment immunity.” Id. at 1328. “[T]he State’s
sovereignty and thus its integrity remain directly affected when federal court
lawsuits interfere with a state program or function” such as a county sheriff’s
enforcement of state law. Id. at 1329.
Because an analysis of these factors favors the application of Eleventh
Amendment immunity, Larkin is entitled to this immunity. See Lake, 840 F.3d at
1344. Additionally, because Mack’s complaint seeks relief in the form of money
damages, rather than injunctive or declaratory relief, the Ex parte Young doctrine
does not apply. Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health and Rehab.
Servs., 225 F.3d 1208, 1220 (11th Cir. 2000) (“[T]he Eleventh Amendment does
not generally prohibit suits against state officials in federal court seeking only
prospective injunctive or declaratory relief, but bars suits seeking retrospective
relief such as restitution or damages.”); see Ex parte Young, 209 U.S. 123 (1908).
Mack’s claims against Larkin in his official capacity are thus due to be dismissed.

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2. Individual Capacity Claims
Larkin further contends that he is entitled to qualified immunity with regard
to the claims against him in his individual capacity. “The doctrine of qualified
immunity protects government officials from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Messerschmidt v. Millender, 565
U.S. 535, 546 (2012) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009))
(internal quotation marks omitted). “[W]hether an official protected by qualified
immunity may be held personally liable for an allegedly unlawful official action
generally turns on the ‘objective legal reasonableness’ of the action, assessed in
light of the legal rules that were ‘clearly established’ at the time it was taken.” Id.
(quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)). To determine whether a
defendant is entitled to qualified immunity, this Court asks whether a
constitutional or statutory right “would have been violated under the plaintiff’s
version of the facts,” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (emphasis
deleted), and whether that right “was ‘clearly established’ at the time of [the]
defendant’s alleged misconduct,” Pearson, 555 U.S. at 232.
Here, Mack alleges that his Fourth Amendment rights were violated because
Larkin’s affidavit, which served as the basis for the warrant used to search Mack’s
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home, falsely stated that Benson had possessed marijuana at Mack’s address. “[A]
search warrant is void under the Fourth Amendment if the affidavit supporting the
warrant contains ‘deliberate falsity or . . . reckless disregard’ for the truth.”
Madiwale v. Savaiko, 117 F.3d 1321, 1326 (11th Cir. 1997) (quoting Franks v.
Delaware, 438 U.S. 154, 171 (1978)). The Fourth Amendment “requires that
warrant applications contain sufficient [factual] information to establish probable
cause.” Holmes v. Kucynda, 321 F.3d 1069, 1083 (11th Cir. 2003) (quoting Franks,
438 U.S. at 164). Although the statements in a warrant application need not “be
objectively accurate,” they must “be ‘truthful’ in the sense that the information
put forth is believed or appropriately accepted by the affiant as true.” Id. (quoting
Franks, 438 U.S. at 165). A “warrant application [that] include[s] deliberately false
statements” does not satisfy this requirement. Id.
Larkin argues that Mack “appears to contend that [Larkin] violated
[Mack’s] constitutionally protected rights by unreasonably relying upon the
testimony of a reliable confidential informant.” However, Mack actually alleges
that Larkin provided information from the confidential informant in the warrant
affidavit despite Larkin’s knowledge that this information was false. Specifically,
the complaint states that Larkin knew, because he had seen the video of the
controlled buy—which did not take place at Mack’s residence—that “there was
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absolutely no probable cause supportive of a reasonable belief that marijuana or any
other illegal drugs were being sold or stored” at Mack’s address. Under these facts,
which this Court must accept as true in ruling on Larkin’s motion to dismiss,
Johnson, 823 F.3d at 1337, Larkin’s submission of the affidavit in order to obtain a
warrant to search Mack’s home violated Mack’s constitutional right to be free from
unreasonable searches and seizures without probable cause. See Kingsland v. City of
Miami, 382 F.3d 1220, 1232 (11th Cir. 2004) (“[F]alsifying facts to establish
probable cause is patently unconstitutional.”).
Further, such a right was “clearly established” at the time Larkin obtained
the search warrant on November 18, 2014. “For the law to be ‘clearly established,’
case law must ordinarily have been earlier developed in such a concrete and
factually defined context to make it obvious to all reasonable government actors, in
the defendant’s place, that what he is doing violates federal law.” Priester v. City of
Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000). “[I]n the absence of fact-specific
case law, the plaintiff may overcome the qualified immunity defense when [a]
preexisting general constitutional rule applies ‘with obvious clarity to the specific
conduct in question,’ and it must have been ‘obvious’ to a reasonable police officer
that the pertinent conduct given the circumstances must have been
unconstitutional at the time.” Vinyard v. Wilson, 311 F.3d 1340, 1352 (11th Cir.
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2002). Multiple Eleventh Circuit and United States Supreme Court cases decided
prior to Larkin’s allegedly knowing submission of the inaccurate affidavit
unequivocally state that “the Constitution prohibits an officer from making
perjurious or recklessly false statements in support of a warrant.” Kelly v. Curtis, 21
F.3d 1544, 1554 (11th Cir. 1994); e.g., Franks, 438 U.S. at 164–15; Kingsland, 382
F.3d at 1232; Holmes, 321 F.3d at 1083; Madiwale, 117 F.3d at 1326. Larkin is thus
not entitled to qualified immunity at this stage in the proceedings, and his motion
to dismiss Mack’s claims against him on this basis is due to be denied. Larkin is not
precluded from asserting qualified immunity at a later stage when the facts are
more fully developed.
D. Other Defendants’ Motion to Dismiss
1. Official Capacity Claims
Mack’s claims against Windham, Mills, Cousette, and Jones in their official
capacities are construed as claims against the City. Busby, 931 F.2d at 776. These
claims fail for the same reason as Mack’s claims against Maddox and are similarly
due to be dismissed.
2. Individual Capacity Claims
With respect to the claims against them in their individual capacities,
Windham, Mills, Cousette, and Jones contend that they are entitled to qualified
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immunity. As they point out, Mack’s claims against them are distinguishable from
the claims against Larkin because they did not apply for the search warrant. 6
Larkin’s allegedly false statement in the search warrant application does not impute
a constitutional violation to the officers executing the warrant. See Dahl v. Holley,
312 F.3d 1228, 1235 (11th Cir. 2002) (granting summary judgment to officers in
unlawful search claim based on “false statements in the search warrant affidavit,”
where officers did not “play[] any role in applying for the warrant”). Thus, the
issue is whether Windham, Mills, Cousette, and Jones violated Mack’s
constitutional rights by executing a search warrant that they allegedly knew to
contain a false statement.
A search warrant that “may be voided [because] the affidavit supporting the
warrant contains deliberate falsity or reckless disregard for the truth,” id., remains
valid if the warrant affidavit includes “sufficient content . . . to support a finding of
probable cause” when the misstatement is removed. Madiwale, 117 F.3d at 1326.
An affidavit submitted in support of a search warrant for a residence “should
establish a connection between the [suspect] and the residence to be searched and a
link between the residence and any criminal activity.” United States v. Martin, 297
6

Although Mack generally alleges that Defendants “conspired” to submit a false warrant
application, the affidavit attached to Mack’s complaint includes only Larkin’s name. Mack fails
to allege any specific facts showing that Defendants “‘reached an understanding’ to violate [his]
constitutional rights.” Grider v. City of Auburn, Ala., 618 F.3d 1240, 1260 (11th Cir. 2010).
Mack’s conspiracy claims are therefore due to be dismissed.
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F.3d 1308, 1314 (11th Cir. 2002); United States v. Brundidge, 170 F.3d 1350, 1352
(11th Cir. 1999) (“Probable cause to support a search warrant exists when the
totality of the circumstances allow[s] a conclusion that there is a fair probability of
finding contraband or evidence at a particular location.”). Here, if the inaccurate
statement that Benson resided at Mack’s address is omitted, then the affidavit
provides no probable cause to search Mack’s home. The affidavit would state only
that “a reliable confidential informant . . . personally observed a quantity of
marijuana in the possession of [Benson] while at his residence.” Omitting the
portion of the affidavit stating that Benson resided at Mack’s address thus severs
any nexus between Mack’s home and Benson or his criminal activity.
The officers nonetheless contend that they “had a right to rely upon a
facially valid search warrant issued by a state court judge.” Generally, when a
warrant is issued, “a police officer is entitled to rely on the magistrate’s probable
cause determination, as long as that reliance is objectively reasonable.” Jones v.
Brown, 649 F. App’x 889, 890 (11th Cir. 2016) (per curiam) (citing United States v.
Leon, 468 U.S. 897, 922 (1984)). “[T]he fact that a neutral magistrate has issued a
warrant is the clearest indication that the officers acted in an objectively reasonable
manner or . . . in ‘objective good faith.’” Messerschmidt, 565 U.S. at 547. But where
“it is obvious that no reasonably competent officer would have concluded that a
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warrant should issue,” the officer is not entitled to “[t]he ‘shield of immunity’
otherwise conferred by the warrant” because he has not acted in an objectively
reasonable manner. Id. (quoting Malley v. Briggs, 475 U.S. 335, 341, 345 (1986)); see
Leon, 468 U.S. at 914–15 (explaining situations in which “reviewing courts will not
defer” to a magistrate’s finding that probable cause exists to issue a warrant). It is
clear that an officer cannot be said to have acted in an objectively reasonable
manner “where the magistrate . . . was misled by information in an affidavit that
the affiant knew was false.” United States v. Robinson, 336 F.3d 1293, 1296 (11th
Cir. 2003). It is not clear, however, that this principle applies to an officer who
merely executes, but does not apply for, the warrant. See Malley, 475 U.S. at 344
(“[T]he same standard of objective reasonableness that we applied in the context
of a suppression hearing . . . defines the qualified immunity accorded an officer
whose request for a warrant allegedly caused an unconstitutional arrest.” (emphasis
added)).
Further, although Mack alleges that the officers had viewed the video of the
controlled buy, he does not plead that they read Larkin’s affidavit prior to
executing the warrant or that they otherwise knew what the affidavit said. Even if
the officers had read the affidavit, the authorizing judge may have taken testimony
beyond the affidavit in support of the warrant application. See Martin, 297 F.3d at
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1317. The facts in the complaint do not merit an inference that at the time of
executing the warrant, Windham, Mills, Cousette, and Jones knew that Larkin had
submitted an affidavit containing a false statement or that the warrant was invalid
for that reason. As such, it cannot be said that “no reasonably competent officer”
would have executed the facially valid search warrant under these circumstances.
Most importantly, this Court has found no relevant case law, and the parties have
supplied none, standing for the proposition that an officer violates an individual’s
constitutional rights by executing a facially valid warrant despite his knowledge that
the affidavit submitted by another officer in support of the warrant contained a false
statement. Therefore, even assuming that Windham, Mills, Cousette, and Jones
violated Mack’s constitutional rights by executing the warrant, such a violation was
not “clearly established” in November 2014. Their motion to dismiss is due to be
granted.
IV. Conclusion
For the reasons stated herein, Maddox’s motion to dismiss (Doc. 15) is due
to be GRANTED and the claims against him DISMISSED. Larkin’s motion to
dismiss (Doc. 7) is due to be GRANTED IN PART and DENIED IN PART.
Mack’s claims against Larkin in his official capacity are due to be DISMISSED, but
the claims against him in his individual capacity remain pending. Finally, the
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motion to dismiss filed by Windham, Mills, Cousette, and Jones (Doc. 13) is due to
be GRANTED and the claims against them DISMISSED. A separate order
consistent with this opinion will be entered contemporaneously herewith.
DONE and ORDERED on June 19, 2017.

_____________________________
L. Scott Coogler
United States District Judge
186289

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