Windham v. City of Fairhope et al
Order granting in part denying in part 7 MOTION to Dismiss filed by Trent Scott, Damian Rehorn, Bill Press, City of Fairhope & granting in part denying in part 12 Amended MOTION to Dismiss, or in the Alternative, Motion for a m ore Definite Statement filed by Anita Kostyra, Frank Kostyra. The 14 MOTION for Leave to File Excess Pages filed by Tina Diane Windham is granted. All defendants are ordered to file answers to the complaint by 4/30/2013. Signed by Chief Judge William H. Steele on 4/16/2013. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
TINA DIANE WINDHAM,
CITY OF FAIRHOPE, et al.,
CIVIL ACTION 13-0025-WS-N
This matter comes before the Court on the Motion to Dismiss (doc. 7) filed by defendants
City of Fairhope, Alabama, Trent Scott, Damian Rehorn and Bill Press (collectively, the
“Fairhope Defendants”) and on the Amended Motion to Dismiss or in the Alternative, Motion
for More Definite Statement (doc. 12) filed by defendants Frank Kostyra and Anita McVay
Kostyra (collectively, the “Kostyra Defendants”). Both Motions have been extensively briefed
and are ripe for disposition.1
Well-Pleaded Factual Allegations.
Although plaintiff’s Complaint (doc. 1) weighs in at a hefty 59 pages that obliterates any
semblance of “notice pleading” under the Federal Rules of Civil Procedure, the underlying
Also pending is Plaintiff’s Motion to Exceed Page Limitation (doc. 14). This
Court previously indicated that “it is unnecessary for either response brief to exceed 30 pages.”
(Doc. 11, at 1.) The undersigned remains of that opinion after reviewing plaintiff’s 34-page brief
in response to the Fairhope Defendants’ Motion to Dismiss. Although counsel could (and
should) have edited his brief to comport with the 30-page cap, the Court in its discretion will
accept the brief (doc. 15) in its current form. The Motion to Exceed Page Limitation is granted.
That said, plaintiff’s counsel is cautioned that, in the future, he may not use 1.5-line spacing or a
tiny footnote font (as he has in this brief) to shrink artificially the number of pages in his briefs.
Rather, his filings must adhere to the formatting specifications of Local Rule 5.1.
relevant facts pleaded therein are straightforward.2 For purposes of the pending Rule 12(b)(6)
Motions, the Court accepts all well-pleaded facts in the Complaint as true, and confines its
review of those facts to the four corners of plaintiff’s pleading.3 As to the four-corners rule, the
Court cannot and will not consider factual allegations that the parties attempt to inject into the
court file via their briefs, where such facts are not set forth in the Complaint itself. Also, even on
Rule 12(b)(6) review, the Court is not bound to assume that legal conclusions or conclusory
statements in the pleading are true or accurate.4
Plaintiff, Tina Diane Windham, is a resident of Fairhope, Alabama, who has lived at her
present address since 2005. (Doc. 1, ¶ 5.) She has a long history of acrimonious relations with
her neighbors, defendants Frank and Anita Kostyra; indeed, the Kostyras have filed numerous
criminal complaints against her and have had a number of altercations / confrontations with
Windham during the period from 2006 through 2012. (Id., ¶¶ 5, 13-20.) One such incident
animates Windham’s 22-count, 246-paragraph Complaint leveled against six defendants.
Rather than the “short and plain statement” contemplated by Rule 8(a),
Fed.R.Civ.P., plaintiff’s Complaint devotes dozens of paragraphs to detailed description of
evidence, quotations from transcripts, and discussion of case authorities, statutes and legal
principles. The Complaint reads almost like a summary judgment brief, not an initial pleading.
The net result is that plaintiff’s 246-paragraph pleading is mired in unnecessary and extraneous
text that contravenes at least the spirit of the Federal Rules of Civil Procedure.
See, e.g., Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010) (on a
motion to dismiss, federal court “accept[s] the facts alleged in the complaint as true, draw[s] all
reasonable inferences in the plaintiff’s favor, and limit[s] our review to the four corners of the
complaint”); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009) (“A court’s
review on a motion to dismiss is limited to the four corners of the complaint.”) (citation and
internal quotation marks omitted); American United Life Ins. Co. v. Martinez, 480 F.3d 1043,
1066 (11th Cir. 2007) (“a court must view a complaint in the light most favorable to the plaintiff
and accept all of the plaintiff’s well-pleaded facts as true when it considers a motion to dismiss a
complaint under Rule 12(b)(6)”).
See, e.g., Chaparro v. Carnival Corp., 693 F.3d 1333, 1337) (11th Cir. 2012) (“if
allegations are indeed more conclusory than factual, then the court does not have to assume their
truth”); Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (“Legal conclusions without
adequate factual support are entitled to no assumption of truth.”); see generally
GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1254 (11th Cir. 2012) (pleading standard
“necessarily requires that a plaintiff include factual allegations for each essential element of his
or her claim”).
Shortly after 8:00 a.m. on January 12, 2012, Windham was in her front yard when a
motorist in a white truck stopped at the edge of her property and summoned her to his vehicle,
indicating that he had run out of gas. (Id., ¶ 21.) Windham notified the driver that she kept a
five-gallon canister of gasoline in her vehicle on the premises, and offered to share it with him.
(Id., ¶ 22.) The driver accepted. So Windham retrieved the canister and assisted the driver in
pouring gasoline into his tank. (Id., ¶ 23.) Because the white truck was positioned along the
edge of the curb, Windham did not interrupt or impair the flow of traffic during this process.
(Id.) Traffic was not stopped at any time while Windham was helping the motorist; indeed, there
was no traffic visible in either direction. (Id., ¶¶ 45, 53.)
Defendant Frank Kostyra observed these events, and called the Police Department of
defendant City of Fairhope, falsely reporting that Windham was out in the road, blocking traffic,
cursing, and disparaging the Kostyras. (Id., ¶ 24.) By 8:50 a.m., two Fairhope police officers,
defendants Trent Scott and Damian Rehorn, arrived on the scene in an official vehicle with
“strobe” lights activated. (Id., ¶ 25.) Although Windham had finished aiding the stranded
motorist, and was preparing to return her empty gas canister to its storage location in her vehicle,
she “immediately assumed that the officers were there to arrest her.” (Id., ¶¶ 26-27.)5
Officers Scott and Rehorn exited their cruiser and asked Windham how she was doing, at
which time she asked the stranded motorist to remain as a witness and stated that she did not
wish to speak with the officers. (Id., ¶ 29.) Officer Scott directed Windham to get off the road,
even though she was not on the road. (Id.) He repeatedly told Windham to calm down. In
response, she informed Officer Scott that she did not have to calm down, emphatically adding, “I
am on my own fucking property.” (Id.) Less than two minutes after arriving on the scene,
Officer Scott arrested Windham as she stood on her own property holding the empty gas canister.
(Id.) Officer Scott did not specify a reason for arresting Windham. (Id., ¶ 34.) At some point
On their face, these facts, as well as many others in the Complaint, make little
sense. By all appearances, the plaintiff’s narrative seems at best to be selective and incomplete.
Why would Frank Kostyra call the police to report that Windham was screaming, cursing and
blocking traffic in the roadway, if she was merely calmly assisting a stranded motorist who had
run out of gas? Why would Windham leap to conclusions that the police were there to arrest her,
if she was merely being a Good Samaritan? Something is missing from this narrative.
Nonetheless, on Rule 12(b)(6) review, this Court accepts those factual allegations wholly and
uncritically, as it must.
during the arrest, Officer Rehorn “aggressively” patted down Windham by putting “both hands
on one leg and then coming up and putting his hands on the inner thigh up towards the groin
area, cupping it, and then coming down the other side.” (Id., ¶ 134.)
As pleaded in the Complaint, Windham “resisted by not helping … the officer to secure
her other arm” as he handcuffed her. (Complaint, ¶ 35.) With the help of Officer Rehorn,
Officer Scott then “wrestled” or “threw” Windham to the ground. (Id., ¶¶ 35-36.) As the
officers pressed her into the patrol vehicle, Windham “was still resisting,” so the officers
“dragged her out of the vehicle, tossed her on the ground, and caused her pants to come down
exposing her private parts for public viewing.” (Id., ¶ 36.) Because of these “roughhouse
tactics,” Windham incurred severe headaches, soreness, bruises, a torn ligament, and “small bone
fractures” in her knee. (Id., ¶ 37.)
According to the Complaint, the officers’ handling of Windham “aggravated a medical
condition that was causing [her] to experience diarrhea.” (Id., ¶ 72.) Consequently, she asked
Officers Scott and Rehorn repeatedly to allow her to use a bathroom. (Id.) They refused. (Id.)
Windham became incontinent as she sat in the patrol car, resulting in “the uncontrolled spillage
of fecal matter.” (Id., ¶ 73.) This incident was both “accidental” and “humiliating” to Windham.
(Id., ¶ 126.) Later that day, Officer Scott brought criminal mischief charges against Windham
for defecating in his patrol vehicle, and executed a petition for involuntary commitment based, in
part, on that same conduct. (Id., ¶¶ 57-59.)
In the aftermath of these events, multiple defendants circulated written descriptions and
accounts to the public. Late in the afternoon on January 12, 2012, Frank Kostyra transmitted an
e-mail message reading, “Tina Arrested,” in which he wrote that Windham was “destroying her
front yard like a mad person,” that “she stopped traffic,” and that she was “yelling & screaming
& pointing” at the Kostyras. (Id., ¶ 64.) On January 16, 2012, defendant Bill Press, who was at
that time the Fairhope Chief of Police, caused the Fairhope Police Department to “release to the
media … the details of [Windham]’s ordeal,” including her “most unflattering mug shot” and
information about her defecating in the patrol vehicle. (Id., ¶¶ 121-22.) The story became
widely publicized on television and on the Internet. (Id.)
Windham maintains that, in order for her to make bail on the criminal charges initiated by
Officer Scott, the District Court of Baldwin County “required [Windham] to forego living in her
home or even returning to her home pending trial,” and instructed her “to keep away from the
City of Fairhope unless accompanied by a responsible adult.” (Id., ¶ 81.) Thus, as framed in the
Complaint, the bail conditions imposed by the Baldwin County court effectively required
Windham to “abandon her home.” (Id., ¶ 140.)
Asserted Causes of Action.
From these factual allegations, plaintiff derives some 22 causes of action divided
amongst six defendants. (The Complaint specifies that the law enforcement defendants – Chief
Press, Officer Scott, and Officer Rehorn – are being sued solely in their individual capacities.)
Ten of these claims are couched as federal civil rights violations pursuant to 42 U.S.C. § 1983,
while the other 12 are framed as violations of Alabama common law.
For purposes of a brief overview, these claims may be grouped by topic. Plaintiff asserts
false imprisonment / false arrest claims under both federal and state law, on the ground that the
Fairhope police officers lacked probable cause to arrest and detain her on January 12, 2012
(Counts I, XII). As to the “roughhouse” manner in which the arrest was carried out, Windham
brings federal and state claims of excessive force, as well as a state-law claim of assault and
battery (Counts II, XIII, XIV). She asserts federal and state claims of malicious prosecution
predicated on Officer Scott’s filing of an involuntary commitment petition, as well as a separate
state-law claim of malicious prosecution against Anita Kostyra for a criminal complaint she
brought against Windham in October 2010 concerning an unrelated incident (Counts III, XV,
XVI). Windham also pleads no fewer than seven claims for invasion of privacy, including state
and federal causes of action against Chief Press for releasing humiliating details of her arrest to
the media (Counts IV, XIX), state and federal claims against Officers Scott and Rehorn for
causing her pants to fall down while they were arresting her (Counts V, XXI), state and federal
claims against Officer Rehorn for conducting a patdown search of Windham’s person incident to
her arrest (Counts VI, XXII), and a state claim against Frank Kostyra for circulating an e-mail
message containing information about her arrest (Count XX). The Complaint also contains two
federal claims against the City of Fairhope (one for excessive bail, one for due process)
concerning the Baldwin County District Court’s condition of Windham’s bail that she “abandon
her home” (Counts VII, VIII). Furthermore, Windham accuses the Kostyras, Officer Scott and
the City of conspiring to violate her due process rights to be free from arrest and prosecution
without probable cause (Count IX). She brings state-law defamation claims against Chief Press
and the City of Fairhope for releasing false information about her arrest to the media, and against
Frank Kostyra for circulating a false e-mail about her arrest (Counts XVII, XVIII). Finally,
plaintiff brings two redundant claims against the City of Fairhope setting forth the grounds why
she believes municipal liability is appropriate for the aforementioned claims under federal and
state law (Counts X, XI).6
Both the Fairhope Defendants and the Kostyra Defendants have now filed detailed
Motions to Dismiss all claims Windham has brought against them.
The Fairhope Defendants’ Motion to Dismiss.
In their Motion to Dismiss, the Fairhope Defendants do not identify a “magic bullet” that
they contend entitles them to across-the-board dismissal of plaintiff’s claims. Rather, their
analysis proceeds on a laborious claim-by-claim basis, using claim-specific theories, defenses
and arguments. This Order will hew to the same methodology.
False Imprisonment / False Arrest (Count I).
With respect to Count I, the Fairhope Defendants maintain that dismissal is warranted
because this claim “rests upon a conclusory statement, without factual support, that she was
arrested without probable cause.” (Doc. 8, at 7-8.) Such a characterization is inaccurate. Any
reasonable reading of the Complaint reveals that plaintiff alleges considerable facts in support of
her contention that she was arrested without probable cause. Thus, movants’ attempt to shoehorn
this claim into the class of “unadorned, the-defendant-unlawfully-harmed me accusation[s]”
proscribed by the Twombly / Iqbal precedents, see Chaparro v. Carnival Corp., 693 F.3d 1333,
1337 (11th Cir. 2012) (citations omitted), cannot be reconciled with the contents of the pleading
Next, Officers Scott and Rehorn request dismissal of Count I pursuant to the doctrine of
qualified immunity. “A motion to dismiss a complaint on qualified immunity grounds will be
In briefing the Fairhope Defendants’ Rule 12(b)(6) Motion, plaintiff devotes
almost two pages to a “Retaliation Free Speech Claim” and explaining why she believes it
survives a qualified immunity challenge. (Doc. 15, at 28-30.) No such cause of action has been
pleaded in the Complaint; therefore, the issue of whether Windham can allege a viable claim for
“Retaliation Free Speech” is not properly considered at this time. The Court will not entertain
briefing on unasserted claims, nor will it issue advisory opinions about hypothetical causes of
action. This would be so in all cases, but particularly here, given that the Court is already
allocating scarce resources to Rule 12(b)(6) review of the nearly two dozen causes of action
Windham has interposed herein.
granted if the complaint fails to allege the violation of a clearly established constitutional right.”
Griffin Industries, Inc. v. Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007) (citation and internal
quotation marks omitted). In the context of a Fourth Amendment false arrest claim, the qualified
immunity inquiry turns on a standard of “arguable probable cause,” not actual probable cause.
See, e.g., Feliciano v. City of Miami Beach, 707 F.3d 1244, 1251 (11th Cir. 2013) (“in cases
involving arrests or warrantless searches or seizures, law enforcement officers are entitled to
qualified immunity if they had even arguable probable cause”); Grider v. City of Auburn, Ala.,
618 F.3d 1240, 1257 (11th Cir. 2010) (“If the arresting officer had arguable probable cause to
arrest for any offense, qualified immunity will apply.”). “Arguable probable cause exists where
reasonable officers in the same circumstances and possessing the same knowledge as the
Defendant could have believed that probable cause existed to arrest.” Rushing v. Parker, 599
F.3d 1263, 1266 (11th Cir. 2010) (citation omitted). Of course, probable cause exists when “facts
and circumstances within the officer’s knowledge, of which he or she has reasonably trustworthy
information, would cause a prudent person to believe, under the circumstances shown, that the
suspect has committed, is committing, or is about to commit an offense.” Lee v. Ferraro, 284
F.3d 1188, 1195 (11th Cir. 2002) (internal quotation marks omitted).
Setting aside the discretionary function element of the analysis, Officers Scott and
Rehorn are not entitled to qualified immunity on Count I at the Rule 12(b) stage. The facts as
presented in the Complaint do not give rise to arguable probable cause for arrest. According to
the Complaint, Officers Scott and Rehorn were dispatched to Windham’s home to investigate a
telephonic tip from her neighbor, Frank Kostyra, that she was standing in the road, blocking
traffic and behaving erratically. (Doc. 1, ¶¶ 24, 41.) The officers knew that Kostyra had a long
history of bringing unsubstantiated criminal complaints against Windham. (Id., ¶ 17.) They
arrived on the scene to find Windham holding a gas can and standing on or near her property line
(i.e., not in the middle of the road) alongside another person and a white truck. (Id., ¶ 29.) She
was not in the middle of the road. She was not blocking traffic. She was not cursing and
screaming. (Id.) When they greeted her by name, Windham told the officers she did not want to
talk to them. (Id.) They instructed her to get out of the road, even though she was not in the
road but was standing on her own property. (Id.) At that point, the officers knew that Windham
was on her own property, was not blocking traffic, and was not otherwise engaged in conduct
suggesting that she had committed, was committing, or was about to commit an offense. There
are no facts in the Complaint alleging that the officers interviewed Kostyra, much less stating
what he might have told them after his initial call to the dispatcher.
Yet, rather than leaving the scene after finding the initial report to be unfounded, the
officers demanded that Windham hand over the gas canister. (Id.) Through both their own
observations and the statements of the stranded motorist, the officers understood that she had
been helping the driver of the white truck to pour gasoline in his vehicle in a random act of
kindness to a stranger. (Id., ¶¶ 42-43.) Thus, they knew she was not wielding the gas can for an
illicit, threatening, destructive, or otherwise nefarious purpose. Yet they ordered her to surrender
it anyway. When Windham refused to hand over the gas can, the officers instructed her to calm
down, to which she responded that she did not have to calm down because she was “on my own
fucking property.” (Id., ¶ 29.) The officers then arrested her.
In their Rule 12(b)(6) Motion, the Fairhope Defendants do not delineate any offense for
which they believe they possessed colorable grounds to arrest Windham. Instead, they vaguely
reason that arguable probable cause of something was created when “[t]he plaintiff failed to
comply with the police officer’s command to relinquish control over gasoline, a dangerous
substance.” (Doc. 8, at 10.) But the well-pleaded facts in the Complaint show that the officers
had no reasonable basis to believe that she had been using or was about to use the gasoline can to
commit a crime, or that the gas can posed any threat to anyone. Accordingly, they lacked any
arguable ground for seizing her personal property. By demanding that she turn over the gas
canister, the officers sought to effect an unreasonable seizure of Windham’s property, in
violation of the Fourth Amendment. The law is clearly established that “one cannot be punished
for failing to obey the command of a [police] officer if that command is itself violative of the
Constitution.” Wright v. State of Georgia, 373 U.S. 284, 291-92, 83 S.Ct. 1240, 10 L.Ed.2d 349
(1963).7 The Fairhope Defendants identify no legal principle that would have allowed Officers
See generally Brooks v. Rothe, 577 F.3d 701, 711 (6th Cir. 2009) (Moore, J.,
dissent) (“a reasonable officer should have known that it was not proper to arrest someone for
non-violently refusing to comply with an unlawful order”); Hodge v. Lynd, 88 F. Supp.2d 1234,
1238 (D.N.M. 2000) (“If Lynd’s order excluding Jerry from the fairgrounds was
unconstitutional, Jerry could not validly be arrested for non-violently disobeying that order.”);
United States v. Olavarria, 2011 WL 1529190, *7 (S.D.N.Y. Apr. 20, 2011) (“Where the police
are engaged in an illegal arrest, other unlawful seizure, or an unlawful search, no charge for
obstruction of governmental administration will lie.”); Mann v. Darden, 630 F. Supp.2d 1305,
Scott and Rehorn to issue a lawful command under the Fourth Amendment to seize Windham’s
gas canister under these circumstances, nor do they identify any legal basis that would have
conferred arguable probable cause to arrest Windham for failing to comply with this facially
unconstitutional directive.8 The Court will not endeavor to fill in the blanks on movants’ behalf
by guessing what Alabama law or ordinance movants contend they had probable cause to believe
Windham was violating or had violated, much less how her failure to comply with their
command created arguable probable cause for them to seize her person.
In their reply brief, the Fairhope Defendants endeavor to shore up the arguable probable
cause for the gas-can directive by asserting that “[t]he plaintiff was hostile to the Officers on the
scene,” which somehow justified their confiscation of a gas can that might (or might not) contain
“a dangerous substance.” (Doc. 17, at 6.) However, the well-pleaded allegations of the
Complaint do not show that Windham had exhibited hostility to the officers or to anyone else as
of the moment Officer Scott commanded her to turn over her personal property. The Complaint
does not allege that Windham used profanity prior to that directive, nor does it allege that she
was belligerent or loud, or that the officers had even told her to calm down, before that directive
was given. By contrast, the Complaint does allege that the officers had been apprised of the
peaceful, nonthreatening purpose for which Windham had been using the gas can moments
before the officers arrived. Again, a Rule 12(b)(6) Motion must be evaluated based on the wellpleaded factual allegations of the Complaint, not on unpleaded facts that defendants say existed.
1317 (M.D. Ala. 2009) (“Darden does not point to any crime arguably committed by Mann in
ignoring those specific commands for which he would have had arguable probable cause to seize
her in any way.”).
At most, movants rely on Ainsworth v. Norris, 2012 WL 1109041, *2 (11th Cir.
Apr. 4, 2012), for the notion that refusal to comply with an officer’s commands can give rise to
probable cause to arrest. Certainly, that is so. But Ainsworth is distinguishable. In that case,
there was no indication that the officer’s requests that the plaintiff exit his vehicle were unlawful
or improper. Here, by contrast, movants have not explained why Officer Scott’s demand that
Windham relinquish personal property was supported by even arguable probable cause. If that
command lacked arguable probable cause (and the Complaint recites no facts suggesting
otherwise), then arresting her for failure to comply with that command likewise was not
supported by arguable probable cause.
On these facts, the officers lacked arguable probable cause to believe that Windham had
used or was about to use the gasoline can to commit a crime.9 Her refusal to submit voluntarily
to seizure of her personal property in those circumstances amounted to invocation of her Fourth
Amendment right to be free from unreasonable seizures. Such disobedience did not create
arguable probable cause for Officer Scott to arrest her. Although defendants attempt to divine
arguable probable cause from events that occurred after Windham was told she was under arrest
and after the officers attempted to subdue her, those events cannot confer arguable probable
cause that was lacking at the inception of the arrest. See generally Exford v. City of
Montgomery, 887 F. Supp.2d 1210, 1224 n.7 (M.D. Ala. 2012) (“Resisting arrest quite obviously
could not serve as probable cause for initiating Exford’s arrest – that would put the cart before
the horse.”). For all of these reasons, the Fairhope Defendants’ Motion to Dismiss is denied as
to Count I.
Excessive Force (Count II).
The Fairhope Defendants also contend that qualified immunity insulates them from
liability for the federal excessive force claim asserted in Count II. “[D]etermining whether the
force used to effect a particular seizure is reasonable under the Fourth Amendment requires a
careful balancing of the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental interests at stake.” Morton v.
Kirkwood, 707 F.3d 1276, 1281 (11th Cir. 2013) (citation omitted). In the arrest context, “[t]he
question is whether the officer’s conduct is objectively reasonable in light of the facts
confronting the officer.” Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002). “In
determining the reasonableness of the force applied, we look at the fact pattern from the
perspective of a reasonable officer on the scene with knowledge of the attendant circumstances
Remarkably, the Fairhope Defendants also take the position in their reply brief
that Officers Scott and Rehorn were free to seize Windham’s property at any time for any reason.
In response to plaintiff’s argument that the officers’ unreasonable demand for the gas can
violated the Fourth Amendment, defendants write, “The plaintiff misapprehends the scope of
police authority,” and suggest that Alabama law grants police officers expansive powers that
would permit this kind of encroachment. (Doc. 17, at 7.) The Court declines an invitation to
invalidate the Fourth Amendment’s protection from unreasonable searches and seizures in
Alabama, regardless of the accuracy (or lack thereof) of defendants’ citations to state-law
and facts, and balance the risk of bodily harm to the suspect against the gravity of the threat the
officer sought to eliminate.” Morton, 707 F.3d at 1281 (citation omitted). “[W]e evaluate
whether force was necessary by examining: (1) the severity of the crime at issue; (2) whether the
suspect poses an immediate threat to the safety of the officers or others; and (3) whether [the
suspect] is actively resisting arrest or attempting to evade arrest by flight.” Fils v. City of
Aventura, 647 F.3d 1272, 1288 (11th Cir. 2011) (citations and internal quotation marks omitted).
The well-pleaded facts alleged in the Complaint are that Officers Scott and Rehorn were
confronted with Windham, a “frail” 51-year old female weighing 120 pounds; that they placed
her under arrest when she refused to surrender a gas can they knew she had been using to help a
stranded motorist; and that Windham had cursed at the officers when they told her to calm down.
When Officer Scott attempted to place handcuffs on Windham, she did “not help him … to
secure her other arm.” (Doc. 1, ¶ 35.) In response, the “beefy” Officers Scott and Rehorn “both
threw her roughly to the ground,” then “press[ed] her into the patrol vehicle,” “dragged her out
of the vehicle, [and] tossed her on the ground.” (Id., ¶ 36.) These actions caused substantial
physical injury to Windham, in the form of bone fractures, a torn ligament, bruises/contusions,
and neck soreness. (Id., ¶ 37.)
On this limited Rule 12(b)(6) factual showing, the Court cannot find that the officers’
conduct was objectively reasonable in light of the facts known to them. The officers were not
arresting Windham for a serious offense, and indeed had no probable cause to believe she had
committed any crime, much less a crime involving physical harm or threats. They had no
indication that Windham (who was slight of stature) was violent or that she posed a threat to
anyone’s safety. To be sure, the officers had reason to believe that Windham was angry (i.e.,
when she snapped and cursed at them that she was on her own property), and they knew she was
not cooperating in attempts to handcuff her.10 But the Complaint shows that the officers grossly
A critical detail is the level, type and manner of resistance offered by Windham.
Those facts are largely missing from the Complaint. This Court can neither assume that her
resistance took an extreme form nor otherwise fill in the factual gaps in defendants’ favor. What
we are left with for Rule 12(b)(6) review is that her resistance involved merely “not helping …
the officer to secure her other arm.” (Doc. 1, ¶ 35.) That fact, considered with the other facts in
the Complaint, would not lead any reasonable officer to conclude that it would be an acceptable
use of force for two burly police officers to throw her to the ground twice and to drag her from
overreacted to these circumstances by throwing her to the ground twice and physically dragging
her out of the patrol vehicle, all with such force that Windham fractured bones, tore a ligament,
and incurred bruises and contusions. Accepting this predicate as the universe of available facts
(as the Court must on Rule 12(b)(6) review), Officers Scott and Rehorn engaged in conduct that
“was so far beyond the hazy border between excessive and acceptable force that [they] had to
know [they were] violating the Constitution even without caselaw on point.” Morton, 707 F.3d
at 1282 (citations omitted).
Accordingly, the arresting officers are not entitled to qualified immunity at the Rule
12(b)(6) stage with respect to the excessive force claim found at Count II of the Complaint.11
Malicious Prosecution (Count III).
Count III of the Complaint is a § 1983 claim of malicious prosecution directed at Officer
Scott and the City, alleging violation of the Fourth Amendment in connection with involuntary
commitment proceedings he commenced against her. With respect to that claim, the Fairhope
Defendants’ sole argument in their Rule 12(b)(6) Motion is that a constitutional claim for
malicious prosecution requires proof of absence of probable cause. That is a correct statement of
law. See, e.g., Grider, 618 F.3d at 1256 (“the existence of probable cause defeats a § 1983
malicious prosecution claim”).12
the police cruiser. Perhaps other facts will negate that conclusion, but those facts are not in the
pleading and therefore may not be considered at this time.
In so concluding, the undersigned does not adopt Windham’s argument that Count
II is viable, as a matter of law, because the officers lacked probable cause to arrest her. The
Complaint as framed shows that the officers indeed lacked probable cause for such an arrest.
And the Eleventh Circuit has explained that “if an arresting officer does not have the right to
make an arrest, he does not have the right to use any degree of force in making that arrest.”
Bashir v. Rockdale County, Ga., 445 F.3d 1323, 1332 (11th Cir. 2006). Federal law is clear,
however, that “where an excessive force claim is predicated solely on allegations the arresting
officer lacked the power to make an arrest, the excessive force claim is entirely derivative of, and
is subsumed within, the unlawful arrest claim.” Id. Thus, it is the manner in which the officers
conducted the arrest (and the force they used incident to arrest) that must drive the § 1983
excessive force claim set forth in Count II, not merely the absence of probable cause for
performing an arrest in the first place.
More broadly, the Eleventh Circuit teaches that “[t]o establish a § 1983 malicious
prosecution claim, the plaintiff must prove two things: (1) the elements of the common law tort
In lieu of any new arguments relating to the presence of probable cause for the initiation
of commitment proceedings, however, the Fairhope Defendants simply rest on arguments
already made with respect to the arrest in Count I. In addressing that claim supra, the Court
found that the pleadings do not support a determination that Officer Scott had even arguable
probable cause to arrest Windham. Without arguable probable cause to arrest, Officer Scott
could not have had arguable probable cause to prosecute. See id. at 1257 n.25 (applying “the
same ‘arguable probable cause’ standard in the qualified immunity context for § 1983 claims for
both false arrest and malicious prosecution”). Thus, the Rule 12(b)(6) Motion seeks dismissal of
Count III solely on the ground of arguable probable cause, but the Complaint as pleaded does not
show that arguable probable cause existed. Besides, defendants’ argument does not even
mention the probable cause inquiry as it relates to the commitment proceedings on which Count
III is expressly based. Accordingly, the Motion is denied as to the § 1983 malicious prosecution
Invasion of Privacy (Counts IV, V and VI).
In Counts IV, V and VI of the Complaint, Windham brings § 1983 invasion of privacy
claims against the Fairhope Defendants based on Chief Press’s publication of details of
Windham’s arrest and her defecation in the police cruiser (Count IV), Officers Scott and
Rehorn’s act of causing Windham’s pants to fall below her knees during the struggle incident to
her arrest (Count V), and Officer Rehorn’s patdown search of Windham (Count VI).
Movants’ only arguments for dismissal of these counts are that there is no reasonable
expectation of privacy for events transpiring in the back of a police car and that Windham’s
partial disrobing during her arrest was not a wrongful intrusion. (Doc. 8, at 18-19.) Movants do
not articulate any dismissal arguments specific to Count VI; therefore, the Court will not address
that claim at this time.13
of malicious prosecution; and (2) a violation of his Fourth Amendment right to be free from
unreasonable seizures.” Id. Lack of probable cause is an element of each prong.
In their reply brief, the Fairhope Defendants assert for the first time that invasion
of privacy is not actionable under federal law. (See doc. 17, at 10-11.) This contention fails for
at least two reasons. First, federal courts generally do not consider new, previously available
arguments unveiled in reply briefs. See, e.g., Continental Motors, Inc. v. Jewell Aircraft, Inc.,
882 F. Supp.2d 1296, 1314 n.26 (S.D. Ala. 2012) (“This is a new, previously available argument
With regard to Count IV, plaintiff’s stated theory is that Chief Press’s publication of
details that she had lost control of her bowels in the police car invaded her privacy because “the
plaintiff had a reasonable expectation that this ordeal would remain private.” (Doc. 1, ¶ 126.)
Federal law is to the contrary. Indeed, defendants correctly point out that Windham enjoyed no
Fourth Amendment expectation of privacy in her actions, statements, deeds or conduct (whether
accidental or intentional) in the back seat of the police cruiser. See, e.g., United States v.
McKinnon, 985 F.2d 525, 528 (11th Cir. 1993) (“we hold that McKinnon did not have a
reasonable or justifiable expectation of privacy for conversations he held while seated in the back
seat area of a police car”).14 Plaintiff’s sole rejoinder to this argument is that Chief Press’s
conduct may be actionable under Alabama invasion of privacy principles. (See doc. 15, at 25.)
That may be all well and good, but Count IV is couched as a federal invasion of privacy claim,
which a movant cannot properly raise for the first time in a reply brief.”); Apex/FCC, LLC v.
FlexiCrew Staffing, Inc., 2012 WL 5398803, *4 (S.D. Ala. Nov. 1, 2012) (“as a new argument
raised for the first time in a reply brief, it is improper”). Second, the Fairhope Defendants do not
cite a single authority for this proposition, and there appears to be ample contrary Eleventh
Circuit case law. See, e.g., United States v. Gecas, 120 F.3d 1419, 1477 (11th Cir. 1997)
(referencing “the freedom from unconscionable invasions of privacy guaranteed by the Fourth
Amendment”) (brackets and citation omitted); Brock v. Emerson Elec. Co., Electronic & Space
Div., 834 F.2d 994, 996 (11th Cir. 1987) (“the primary purpose of the Fourth Amendment is to
prevent arbitrary invasions of privacy”); United States v. Hill, 2009 WL 2178046, *1 (11th Cir.
July 23, 2009) (“The Fourth Amendment protects the citizen against invasion of privacy.”)
(citation and internal quotation marks omitted); Luster v. Ledbetter, 647 F. Supp.2d 1303, 1310
(M.D. Ala. 2009) (“It is clear that a reasonable officer would have the common sense to know
that such unnecessary, deeply humiliating invasion of privacy is unreasonable under the Fourth
Amendment.”). The Court will not guess at the legal basis of the Fairhope Defendants’ new
See also United States v. Rodriguez, 1993 WL 241764, *1 (4th Cir. July 6, 1993)
(“Society does not recognize an expectation of privacy in the back seat of a police car.”); United
States v. Sutmiller, 2011 WL 2636542, *4 (W.D. Okla. July 6, 2011) (“a person has no
expectation of privacy in the back of a police car”); United States v. Reese, 2010 WL 2606280,
*4 (N.D. Ohio June 25, 2010) (“Courts have consistently held that persons placed in the back
seat of a police car, whether pre-arrest or post-arrest, have no reasonable expectation of
privacy”); United States v. Mees, 2009 WL 1657420, *8 (E.D. Mo. June 10, 2009) (“there is no
reasonable expectation of privacy inside a police car”); United States v. Leal, 2003 WL
21665126, *12 (M.D. Fla. Mar. 28, 2003) (“It is well-established that there is no reasonable
expectation of privacy in the back of a police car.”).
not an Alabama claim. If plaintiff cannot show that she had a Fourth Amendment reasonable
expectation of privacy in the events that occurred in the back of the police car, then her federal
invasion of privacy claim must fail. She has not even attempted to argue the point under federal
law;15 therefore, the Fairhope Defendants’ Motion to Dismiss will be granted as to Count IV for
want of a federally cognizable reasonable expectation of privacy.
In response to the Fairhope Defendants’ contention that Count V is not a wrongful
intrusion into Windham’s privacy because her pants fell down while the officers were attempting
to gain control of her during the arrest, plaintiff again points exclusively to Alabama law. (See
doc. 15, at 25.) Plaintiff is answering the wrong question. The issue in Count V is whether
Officers Scott and Rehorn’s conduct in the course of the arrest is actionable as a § 1983 invasion
of privacy, not whether it is actionable as an Alabama invasion of privacy. Plaintiff has not even
attempted to make the requisite legal showing as to Count V; therefore, that claim will likewise
be dismissed because plaintiff has not attempted to explain how the officers wrongfully
infringed on privacy interests protected by the Fourth Amendment.16
At best, plaintiff insists that under Summers v. Bailey, 55 F.3d 1564 (11th Cir.
1995), the contours of a § 1983 invasion of privacy claim are defined by state law. (See doc. 15,
at 26.) Her reliance on Summers is misplaced. In that case, the plaintiff did not bring a federal
invasion of privacy claim at all, but instead asserted Georgia tort claims of intrusion and false
light invasion of privacy. See Summers, 55 F.3d at 1566. Nowhere did the Summers court
purport to prescribe principles or guidelines for federal invasion of privacy causes of action,
much less to declare federal constitutional claims to be interchangeable with state tort claims in
the invasion of privacy field.
In this regard, the facts alleged by Windham are readily distinguishable from
those in Luster v. Ledbetter, 647 F. Supp.2d 1303 (M.D. Ala. 2009), in which law enforcement
agents brought an unclothed, restrained plaintiff out of her home during a late-night search of the
premises. The officers “had not permitted her to dress before restraining her,” such that she “was
nude and exposed to a dozen or so other people on the scene” for a prolonged period of time. Id.
at 1306. In that circumstance, the Luster court opined that the plaintiff had stated a viable claim
against the officers for violating her Fourth Amendment rights by doing “unnecessary violence
to a person’s dignity or privacy.” Id. at 1309. By contrast, Windham’s account is that her
trousers momentarily slipped down to her knees while she scuffled with Officers Scott and
Rehorn during the arrest. She does not suggest that they forcibly removed her pants, that they
refused to allow her to dress, or that this event was anything more than a momentary, fleeting,
inadvertent indignity. Under the reasoning of Luster and Los Angeles County, California v.
Rettele, 550 U.S. 609, 615, 127 S.Ct. 1989, 167 L.Ed.2d 974 (2007), in which the Supreme Court
found no Fourth Amendment violation where the plaintiff was forced to stand nude in her
bedroom for no more than two minutes while law enforcement officers secured the area,
Excessive Bail (Counts VII and VIII).
The Fairhope Defendants next take aim at Counts VII and VIII, in which Windham
brings Eighth and Fourteenth Amendment challenges against the City of Fairhope relating to the
conditions of her bail. In particular, those counts allege that the Baldwin County District Court
improperly established as a condition of Windham’s bail that she “abandon her home” and
“prohibited plaintiff from returning to the city unless escorted by an adult.” (Doc. 1, ¶¶ 140,
145.) Plaintiff requests a declaration that such conditions of bail are unconstitutional and an
injunction barring the City of Fairhope from enforcing those provisions. (Id., ¶¶ 144, 149.) The
City now moves for dismissal of Counts VII and VIII.17
With respect to these claims, the City’s Motion rests wholly on application of RookerFeldman principles. This doctrine provides that “lower federal courts are precluded from
exercising appellate jurisdiction over final state-court judgments.” Nicholson v. Shafe, 558 F.3d
1266, 1268 (11th Cir. 2009) (citation omitted). The boundaries of the Rooker-Feldman doctrine
are clearly delineated as reaching only “cases brought by state-court losers complaining of
injuries caused by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments.” Id. at 1274
(quoting Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284, 125 S.Ct. 1517,
161 L.Ed.2d 454 (2005)). The City argues that Counts VII and VIII fit neatly within the
parameters of Rooker-Feldman because Windham would have this Court review the state court’s
determination of appropriate conditions of her state-court bail.
In response, Windham raises several arguments, the most immediate of which is that
Rooker-Feldman does not apply because “there has been no final judgment in state court.” (Doc.
Windham has no viable constitutional claim in Count V. Certainly, she has identified no
authority that would recognize a Fourth Amendment violation in these circumstances, and the
Supreme Court’s Rettele decision appears fatal to any such claim.
In her opposition brief, plaintiff incorrectly states that “Defendants’ [sic] raise no
challenge to this Count [meaning Count VIII], therefore, it is not addressed elsewhere in this
brief.” (Doc. 15, at 2 n.2.) On the face of the Fairhope Defendants’ Rule 12(b) Motion and
supporting brief, they seek dismissal of Counts VII and VIII. (See doc. 8, at 19-21.) The Court
therefore rejects Windham’s suggestion that no Rule 12(b)(6) Motion has been lodged with
respect to Count VIII.
15, at 27.) The Eleventh Circuit has unequivocally established that the Rooker-Feldman doctrine
applies only where “the prior state court ruling was a final or conclusive judgment on the
merits.” Nicholson, 558 F.3d at 1272; see also David Vincent, Inc. v. Broward County, Fla., 200
F.3d 1325, 1332 (11th Cir. 2000) (declining to apply Rooker-Feldman where plaintiffs effectively
challenged Florida courts’ denial of temporary injunction, but such denial was “not a final or
conclusive judgment on the merits”); Jones v. Commonwealth Land Title Ins. Co., 2012 WL
205844, *2 (11th Cir. Jan. 25, 2012) (“there is nothing in the record that indicates that there was a
final or conclusive judgment on the merits in Jones’s state court case …. Therefore, the RookerFeldman doctrine does not preclude federal jurisdiction over this case.”). The City offers no
rejoinder to this argument, and offers neither reasoning nor well-pleaded facts in the Complaint
supporting a determination that either (i) there has been a final judgment on the merits, or (ii)
that requirement is no longer good law. In the absence of such a showing by the City, its Motion
to Dismiss is due to be, and hereby is, denied as to Counts VII and VIII because movant has not
met its burden of showing that the Rooker-Feldman doctrine precludes those claims.
Conspiracy to Deny Due Process (Count IX).
In Count IX of the Complaint, plaintiff alleges that Officer Scott conspired with the
Kostyras “to deprive Plaintiff of her due process rights to be free from” arrest and prosecution
without probable cause, all in violation of 42 U.S.C. § 1985(3). (Doc. 1, ¶ 150.) Plaintiff further
alleges that defendants perceive her to have a mental disability and that the object of their
conspiracy was “to deny a perceived disabled person the equal protection of the laws.” (Id., ¶
151.) This last allegation appears necessary to align Windham’s Count IX with the legal
elements of a § 1985(e) claim, which are as follows: “(1) a conspiracy, (2) for the purpose 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.” Cook v. Randolph County, Ga., 573 F.3d
1143, 1149 (11th Cir. 2009) (citation omitted).
The Fairhope Defendants’ only stated ground for seeking dismissal of Count IX is that
“[t]he plaintiff wholly fails to plead any facts regarding the nature of the alleged conspiracy.”
(Doc. 8, at 21.) It is true, of course, that “[i]n conspiracy cases, a defendant must be informed of
the nature of the conspiracy which is alleged. It is not enough to simply aver in the complaint
that a conspiracy existed.” Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984).18 The
trouble with this argument is that Windham’s pleading does not merely allege in conclusory
terms that a conspiracy existed, with no supporting facts. To the contrary, the Complaint pleads
the following facts, among others, that are probative of the existence of a conspiracy: (i) in or
around late 2011, Kostyra professed to have reached an understanding with Fairhope police that
Windham would be arrested if she went into the street and blocked traffic (doc. 1, ¶ 20); (ii)
shortly before January 12, 2012, Kostyra went to the Fairhope police to “warn them” that
Windham “would snap” and that the Kostyras “would be a target of her fury” (id., ¶ 64); (iii)
Kostyra lied to the Fairhope police on January 12 by reporting that Windham was in the street
blocking traffic, which she was not, in furtherance of his express understanding that this report
would prompt the Fairhope police to come and arrest Windham (id., ¶ 24); (iv) Fairhope police
officers promptly came and arrested Windham based on that false report, even though they never
saw her block traffic; (v) Officer Scott initiated commitment proceedings against Windham that
very day; and (vi) both Kostyra and Officer Scott perceived Windham as being mentally disabled
because both had initiated involuntary commitment proceedings against her (id., ¶ 151).
Considering these and other factual allegations in the Complaint, the Court finds that Count IX is
not so vague or conclusory that defendants lack notice of the nature of the alleged conspiracy.
The Fairhope Defendants’ Motion to Dismiss is denied as to Count IX.
Municipal Liability (Count X).
In Count X of the Complaint, Windham purports to assert a § 1983 municipal liability
claim against the City of Fairhope. As to this cause of action, the City moves for dismissal on
the following two grounds: (i) Windham has identified no policy and no deliberate indifference;
and (ii) an inadequate training claim is not cognizable as a matter of law.
See also Little v. City of New York, 487 F. Supp.2d 426, 441 (S.D.N.Y. 2007)
(“Complaints that contain only conclusory, vague, or general allegations that the defendants have
engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly
dismissed”) (citations and internal marks omitted); Local 749, AFCSME, Council 4, AFL-CIO v.
Ment, 945 F. Supp. 30, 35 (D. Conn. 1996) (“Since plaintiff’s allegations of conspiracy are
vague and conclusory, we grant defendants’ motion to dismiss as to this claim ….”); Sharp v.
Rainey, 910 F. Supp. 394, 395 (E.D. Tenn. 1996) (“In order to demonstrate the existence of a
conspiracy, a plaintiff must show more than vague and conclusory allegations unsupported by
material facts.”) (citation and internal quotation marks omitted).
Initially, the City takes the position that the Complaint does not identify any policy of the
City that led to a violation of Windham’s constitutional rights, much less offer allegations that
such policy as enacted with deliberate indifference. With regard to the nature of the policy, a
plain reading of Count X shows that it is anchored in allegations that the City failed adequately
to train its police officers concerning unlawful arrests and excessive force. (Doc. 1, ¶¶ 155-64.)
The Eleventh Circuit has explained that “inadequacy of police training may serve as the basis for
§ 1983 liability only where the failure to train amounts to deliberate indifference to the rights of
persons with whom the police come into contact. … To establish a municipality’s ‘deliberate
indifference,’ a plaintiff must put forward some evidence that the municipality was aware of the
need to train or supervise its employees in a particular area.” American Federation of Labor and
Congress of Indus. Organizations v. City of Miami, FL, 637 F.3d 1178, 1188-89 (11th Cir. 2011)
(citations omitted); see also Skop v. City of Atlanta, GA, 485 F.3d 1130, 1145 (11th Cir. 2007)
(“In order to sustain her claim that her injury was the result of improper training, Skop was
required to bring forth some evidence of a pattern of improper training to sustain her claim, and
she must show that Atlanta was aware of the deficiencies in the program.”) (citations and internal
marks omitted). The Complaint pleads facts that support a reasonable inference of (i) a history
of misconduct by Fairhope police officers; (ii) a history of unlawful arrest and excessive force by
Officer Scott himself; and (iii) knowledge of this history by the City. (Doc. 1, ¶¶ 7, 66, 157-60.)
The City does not explain in its Rule 12(b)(6) Motion why it believes these facially-sufficient
allegations to be inadequate, instead falling back on conclusory (and inaccurate) rhetoric that
Windham “fails to identify … that any alleged policy was instituted with deliberate
indifference.” (Doc. 8, at 11-12.) The “deliberate indifference” element appears to be
adequately alleged via specific supporting facts in the Complaint, and movants do not explain
why they contend otherwise.
As noted, the gravamen of Count X, as plaintiff has pleaded it, is that the City is liable
under § 1983 for inadequate training of Officers Scott and Rehorn in probable cause for arrests
and the appropriate use of force incident to arrest. The City argues in its Rule 12(b)(6) Motion
that this portion of Count X should be dismissed because Alabama law does not recognize a
cause of action against a municipality for negligent training. (Doc. 8, at 12.) Be that as it may,
Count X is not a state-law claim for negligent training. Indeed, nowhere in the Complaint is any
state-law claim or cause of action asserted against the City for negligent training.19 The claim
presented in Count X is a § 1983 cause of action against a municipality for inadequate training.
That theory of liability has routinely been found to be actionable in this Circuit. See, e.g., City of
Miami, 637 F.3d at 1188 (“A municipality can also be held liable under § 1983 when its
employees cause a constitutional injury as a result of the municipality’s policy- or custom-based
failure to adequately train or supervise its employees.”).
For all of these reasons, the City’s Motion to Dismiss will be denied as to Count X,
which appears adequately to allege a claim of municipal liability against the City of Fairhope on
a failure to train theory.
State-Law Claims (Counts XI – XV, XVII, XIX, XXI, XXII.)
As a threshold matter, the Fairhope Defendants contend that they are entitled to immunity
on all of Windham’s state-law claims pursuant to Alabama Code § 13A-3-22 and state-agent
immunity pursuant to Alabama Code § 6-5-338.
Initially, the Fairhope Defendants assert that they are entitled to Rule 12(b)(6) relief
pursuant to an Alabama statute that provides as follows: “Unless inconsistent with … some
other provision of law, conduct which would otherwise constitute an offense is justifiable and
not criminal when it is required or authorized by law … or is performed by a public servant in
the reasonable exercise of his official powers, duties or functions.” Ala. Code § 13A-3-22
(emphasis added). Movants’ reliance on this statute is unavailing at this stage because, on its
face, § 13A-3-22 merely provides an “execution of public duty” defense to criminal liability.
Nothing in the text of the statute states or suggests – and defendants cite no Alabama court
decisions holding – that § 13A-3-22 creates a special immunity from civil suits, or a privilege to
commit torts. This Court will not expansively apply § 13A-3-22 to a context beyond the
parameters of its plain language on defendants’ unvarnished, unsupported say-so. Moreover, by
Just as plaintiff cannot constructively argue the merits of claims not appearing in
the Complaint, neither can defendants. Debating whether Windham could or could not
successfully prosecute some other claim she has not pursued to date against any defendant is an
irrelevant and unhelpful exercise. The Court will focus its analysis on the 22 causes of action
Windham has asserted in the Complaint, rather than indulging speculation about the legal and
factual viability of claims she has not.
its terms, this statute creates a “justification” defense only for acts performed by a public servant
“in the reasonable exercise of his official powers, duties or functions.” Id. The point of
Windham’s Complaint is that the officers’ actions were entirely unreasonable. Indeed, the wellpleaded factual allegations of the Complaint, accepted as true, establish that Officers Scott and
Rehorn were not reasonably exercising their official powers, duties and functions when they
arrested Windham for no plausible reason, applied unnecessary and excessive force to injure her,
and so on, all in derogation of her federal constitutional rights. In short, § 13A-3-22 on its face
has no application here, and movants have advanced no meaningful arguments supporting a
Next, the Fairhope Defendants invoke the doctrine of state-agent immunity. Under
Alabama law, “a State official or agent may be entitled to State-agent immunity pursuant to Ex
parte Cranman, 792 So.2d 392 (Ala. 2000), as to actions asserted against him or her in his or her
individual capacity.” Ex parte Moulton, --- So.3d ----, 2013 WL 285726, *19 (Ala. Jan. 25,
2013). Alabama law recognizes, however, that state-agent immunity is unavailable where “the
State agent acted willfully, maliciously, fraudulently, in bad faith, or beyond his or her
authority.” Ex parte Kennedy, 992 So.2d 1276, 1282 (Ala. 2008) (citation omitted).20 Courts
applying these principles have found that police officers lose their state-agent immunity when
they perform an arrest without arguable probable cause. See Ruffino v. City of Hoover, 891 F.
Supp.2d 1247, 1278 (N.D. Ala. 2012) (“The Alabama Supreme Court resolved the question by
determining that the absence of arguable probable cause defeats the officer’s claim to immunity
under Ala.Code § 6-5-338.”); Mann v. Darden, 630 F. Supp.2d 1305, 1315 (M.D. Ala. 2009) (“if
a reasonable officer could not have believed that he had probable cause to arrest, then there is no
discretionary-function immunity”). The unreasonable and excessive use of force by officers in
enforcing the peace has likewise been held to be beyond the pale of state-agent immunity. See
Mann, 630 F. Supp.2d at 1318-20. The Eleventh Circuit has found that a law enforcement
Although the Fairhope Defendants also frame their defense in terms of peaceofficer immunity as set forth in Alabama Code § 6-5-338(a), the Alabama Supreme Court has
explained that Cranman “now governs the determination of whether a police officer is entitled to
immunity under § 6-5-338(a), Ala.Code 1975.” Downing v. City of Dothan, 59 So.3d 16, 19
(Ala. 2010). As such, the Court will not embark on a distinct analysis of § 6-5-338(a) immunity,
separate and apart from Cranman state-agent immunity principles, because Alabama courts have
subsumed the former within the latter.
officer is not entitled to state-agent immunity where the plaintiff’s version of the facts shows that
the officer fabricated charges against the plaintiff, lacked probable cause and harbored a
malicious intent. See Grider, 618 F.3d at 1258.
The well-pleaded factual allegations of the Complaint are likewise sufficient to strip the
Fairhope Defendants of state-agent immunity. In particular, Windham’s factual allegations show
that the officers falsified allegations of wrongdoing by Windham, intentionally provoked her by
issuing unreasonable, counterfactual and unconstitutional commands to her, and arrested her on
trumped-up charges for which they knew they lacked even arguable probable cause. These and
other facts set forth in the Complaint are sufficient to show the kind of conduct that is willful,
malicious, and exceeding the officers’ lawful authority, thereby precluding application of
Cranman in the officers’ favor at the Rule 12(b)(6) stage.
Particular State-Law Claims.
With regard to specific state-law claims, the Fairhope Defendants advance a series of
abbreviated, often perfunctory arguments that largely duplicate arguments made elsewhere with
respect to other claims and defenses. These contentions will be considered sequentially. In so
doing, the Court declines to elaborate on, embellish or develop those theories for relief, but
instead takes them in the manner and form presented by movants.
Count XII is a state-law claim for false imprisonment / false arrest. Movants insist they
are entitled to state-agent immunity on this claim because Windham “fails to allege any facts
which state a plausible claim that the officers acted fraudulently, in bad faith, with malice or
willfulness.” (Doc. 8, at 25.) The Court has already found with respect to the federal false
imprisonment / false arrest claim (Count I) that the facts alleged in the Complaint show that the
officers lacked arguable probable cause to arrest Windham. As shown by the Ruffino and Mann
line of authority discussed supra, the absence of arguable probable cause likewise establishes the
requisite willfulness, bad faith and/or malice, so as to eliminate the availability of state-agent
immunity in these circumstances. The Motion to Dismiss is denied as to Count XII.
Counts XIII and XIV are state-law claims for excessive force and assault and battery.
Once again, the Fairhope Defendants’ Motion to Dismiss goes no further than to make a
conclusory statement that movants are entitled to state-agent immunity because “[t]he plaintiff
fails to allege any facts which support her bald assertion that the officers acted fraudulently, in
bad faith, with malice or willfulness.” (Doc. 8, at 27.) The Fairhope Defendants do not develop
this contention, leaving the Court to guess why they maintain the specific, detailed allegations of
wrongdoing and nefarious purpose set forth in the Complaint are not sufficient to overcome
state-agent immunity. In any event, as noted supra with regard to Count II, the facts in the
Complaint taken in the light most favorable to Windham support an inference that Officers Scott
and Rehorn used excessive and unreasonable force by repeatedly throwing Windham to the
ground, dragging her from the vehicle, and inflicting significant physical injuries on her.21 Such
egregious use of force would establish the requisite willfulness and bad faith under Alabama law,
as recognized in the Mann case cited supra. And of course, the factual allegations of excessive
force that undergird Count XIII would likewise give rise to a viable assault and battery claim in
Count XIV pursuant to Alabama law. See Ruffino, 891 F. Supp.2d at 1279 (“Under Alabama
law, excessive force during an arrest constitutes assault and battery.”). The Motion to Dismiss is
denied as to Counts XIII and XIV.
Count XV is a state-law claim for malicious prosecution relating to the involuntary
commitment proceeding initiated against Windham by Officer Scott. The sum total of Officer
Scott’s argument for dismissal of this claim is the bare assertion that “[a]lthough the plaintiff
alleges in her complaint that Officer Scott acted willfully and with malice, she pleads no facts
which support this formulaic recitation of the elements of this cause of action.” (Doc. 8, at 28.)
A fair reading of the Complaint (both within Count XV and elsewhere) shows that plaintiff has
alleged numerous facts supporting an inference of willfulness and malice on Officer Scott’s part,
including facts that he knew the legal prerequisites for involuntary commitment were not present,
he engaged in harassment and unconstitutional conduct towards Windham, and his pursuit of
commitment proceedings against her was part and parcel of that patently illegal, malicious
The mere fact that Windham resisted an arrest lacking in arguable probable cause
did not authorize the officers to use whatever force they wished to subdue her. In fact, courts
applying Alabama law continue to recognize today that “while an officer has the power to use a
reasonable amount of force in making a lawful arrest or investigatory stop, an Alabamian has the
reciprocal right to use force in resisting an unlawful arrest.” Exford, 887 F. Supp.2d at 1224 n.7
(citations omitted); Telfare v. City of Huntsville, 841 So.2d 1222, 1229 (Ala. 2002) (“The law in
Alabama is clear that, to a limited degree, a party is justified in attempting to resist an unlawful
arrest. A party may use reasonable force to extricate himself from an unlawful arrest.”) (internal
citations omitted). So, especially in regard to the state-law excessive force claim, defendants
cannot use Windham’s admission that she resisted in some unspecified way as carte blanche to
utilize disproportionate, extreme and excessive force to consummate the seizure of her person.
behavior. The Complaint, taken as a whole, contains far more than a “formulaic recitation of the
elements” of malicious prosecution. On this threadbare showing by movants, the Motion to
Dismiss is denied with respect to Count XV.
The analysis becomes more interesting as to Count XVI, a claim of defamation leveled
against Chief Press and the City for making public certain information concerning Windham’s
January 12, 2012 arrest. The Complaint alleges that Chief Press’s narrative was “detailed, yet
incomplete,” and that it “suggested that plaintiff, without cause, deliberately defecated in a police
vehicle which was untrue.” (Doc. 1, ¶¶ 214, 216.) Defendants contend that dismissal of Count
XVI is proper because the Complaint does not allege that Chief Press’s release contained
untruths. Under Alabama law, “[t]ruth is a complete and absolute defense to defamation. …
Truthful statements cannot, as a matter of law, have a defamatory meaning.” Ex parte Bole, 103
So.3d 40, 51 (Ala. 2012) (citations omitted); see also Wal-Mart Stores, Inc. v. Smitherman, 872
So.2d 833, 840 (Ala. 2003) (similar). In Alabama, “[t]he first element of a cause of action in
defamation is a false statement.” Tidwell v. Winn-Dixie, Inc., 502 So.2d 747, 748 (Ala. 1987).
Again, Count XVI identifies the falsity as being an imputation in Chief Press’s statement
that Windham, “without cause, deliberately defecated in a police vehicle.” (Doc. 1, ¶ 216.)
Neither side addresses whether a literally true statement with a false implication may support a
defamation claim under Alabama law. Review of applicable authority yields an affirmative
result. See, e.g., Finebaum v. Coulter, 854 So.2d 1120, 1128 (Ala. 2003) (if “a communication is
reasonably capable of a defamatory meaning,” then “it is then for the jury to say whether the
statement was in fact so understood,” with the applicable test “in determining the defamatory
nature of an imputation [being] that meaning which would be ascribed to the language by a …
common mind”) (citations and internal marks omitted). “Any statement from which a reasonable
person might infer a false factual connotation which would harm the victim’s reputation in the
eyes of the community, is capable of a defamatory meaning.” Brassfield v. Jack McLendon
Furniture, Inc., 953 F. Supp. 1438, 1457 (M.D. Ala. 1996) (citation and internal quotation marks
omitted). A fair reading of Count XVI is that Chief Press’s publication about the January 12
events could reasonably be inferred as imputing a defamatory falsehood, to-wit: that Windham
deliberately defecated in the police car (as opposed to accidentally doing so because of a medical
condition exacerbated by defendants’ “roughhouse tactics” in arresting her and because of
defendants’ callous refusal to allow her to access a toilet when she begged for same). Therefore,
the falsity requirement has been adequately pleaded to survive Rule 12(b)(6) review, and the
Motion to Dismiss is denied as to Count XVI.22
Finally, Counts XIX, XXI and XXII assert state-law invasion of privacy claims arising
from Chief Press’s narrative, Officer Scott and Rehorn’s partial disrobing of Windham during
her arrest, and Officer Rehorn’s patdown search.23 These defendants’ sole articulated basis for
seeking dismissal of these claims is that “the plaintiff had no expectation of privacy for actions
take [sic] during her arrest,” and that “the lowering of her pants during her struggle … [did not]
constitute an unlawful intrusion into her privacy.” (Doc. 8, at 29-30.) This superficial assertion
lacks persuasive heft. Fundamentally, defendants do not explain why it is proper (or even
permissible) to engraft Fourth Amendment “expectation of privacy” principles onto the Alabama
state-law invasion of privacy context. The Alabama common-law cause of action is analytically
and conceptually distinct from, and does not appear rooted in, the Fourth Amendment. See, e.g.,
Butler v. Town of Argo, 871 So.2d 1, 12 (Ala. 2003) (“It is generally accepted that invasion of
privacy consists of four limited and distinct wrongs: (1) intruding into the plaintiff’s physical
solitude or seclusion; (2) giving publicity to private information about the plaintiff that violates
ordinary decency; (3) putting the plaintiff in a false, but not necessarily defamatory, position in
the public eye; or (4) appropriating some element of the plaintiff’s personality for a commercial
use.”) (citations omitted). Defendants neither explain nor provide authority for their premise that
In addition to arguing truth, the Fairhope Defendants maintain that they are
entitled to dismissal of Count XVI by operation of Alabama Code § 13A-11-161. That statute
confers a conditional privilege on publication of reports concerning arrests, stating in relevant
part as follows: “The publication of a fair and impartial report of … the arrest of any person for
any cause … shall be privileged … unless it be proved that … the defendant has refused or
neglected to publish … a reasonable explanation or contradiction thereof by the plaintiff.”
Ala. Code § 13A-11-161 (emphasis added). At the Rule 12(b)(6) stage, application of § 13A-11161 does not defeat Count XVI as a matter of law because the Complaint supports a reasonable
inference that (i) Chief Press’s report was not fair and impartial, but was slanted to impute
falsely an embarrassing deliberate act to Windham; and (ii) Chief Press omitted Windham’s
reasonable explanation / contradiction that she defecated in the police car not intentionally, but
inadvertently because of an aggravated medical condition and the officers’ refusal to
accommodate same when she pleaded with them to allow her to use a restroom.
As with the federal invasion of privacy claim pertaining to the patdown (Count
VI), the Fairhope Defendants make no arguments specific to the state-law invasion of privacy
claim relating to the patdown (Count XXII).
a Fourth Amendment expectation of privacy is a prerequisite to a plaintiff’s ability to maintain
an Alabama invasion of privacy claim. Alabama authority appears to be to the contrary.24 On
this threadbare showing, the Motion to Dismiss is denied as to the invasion of privacy counts set
forth in Counts XIX, XXI and XXII.
Municipal Liability under State Law.
Finally, the parties spar as to whether municipal liability lies against the City of Fairhope
under state law, as alleged in Count XI of the Complaint. The parties devote approximately one
paragraph each to this claim, so the legal presentation on both sides is minimal. Nonetheless, the
Court perceives the City to be making three arguments.
First, the City professes entitlement to state-agent immunity. It is beyond cavil, however,
that a City cannot obtain state-agent immunity where the underlying officers have been denied it.
See, e.g., Downing v. City of Dothan, 59 So.3d 16, 18 n.2 (Ala. 2010) (“because the liability of
the City of Dothan in this case is contingent on the liability of its police officers, we will
consider whether the police officers, as agents of the City, would be entitled to immunity under
the analysis stated in Cranman”); Borders v. City of Huntsville, 875 So.2d 1168, 1183 (Ala.
2003) (“if Earle is not entitled to immunity pursuant to § 6-5-338(a), the plain language of the
statute withholds immunity from the City”). The Court having already found that the individual
officers are not entitled to state-agent immunity at the Motion to Dismiss stage, the same
conclusion attaches to the City of Fairhope.
See, e.g., S.B. v. Saint James School, 959 So.2d 72, 98 (Ala. 2006) (tort is
established where “the defendant gave publicity to a matter (1) that would be highly offensive to
a reasonable person, and (2) that is not a matter of a legitimate public concern”); Johnson v.
Stewart, 854 So.2d 544, 549 n.1 (Ala. 2002) (“Even in a public place, … there may be some
matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the public
gaze; and there may still be invasion of privacy when there is intrusion upon these matters.”)
(citation omitted); Martin v. Patterson, 975 So.2d 984, 994 (Ala.Civ.App. 2007) (“a wrongful
intrusion may occur in a public place, so long as the thing into which there is intrusion or prying
is entitled to be private”). These and other Alabama cases would appear to support state-law
invasion of privacy claims for events occurring in public places that involve intrusions into
private matters (i.e., publication of details about an arrestee’s involuntary bowel movement,
momentary exposure of an arrestee’s genital area, an invasive patdown). Defendants have
presented neither law nor argument that Alabama would not recognize such claims under the
factual scenario alleged in the Complaint, and this Court will cannot develop a Rule 12(b)(6)
movant’s position for it.
Second, the City insists that it is entitled to immunity under Alabama Code § 11-47-190
in any event, because “[t]he City is not liable for acts of its agents undertaken with a higher
degree of fault than neglect, carelessness, or unskillfulness.” (Doc. 8, at 30.) But Alabama
courts have not interpreted § 11-47-190 as creating blanket immunity for a municipality for
claims sounding in false arrest, excessive force, assault and battery and so on. In Borders v. City
of Huntsville, 875 So.2d 1168 (Ala. 2003), the Alabama Supreme Court reversed the lower
court’s dismissal of claims of excessive force, false arrest, false imprisonment, and assault and
battery under § 11-47-190 because all such claims “are based upon Earle’s alleged neglect,
carelessness, and unskillfulness.” Id. at 1183; see also Franklin v. City of Huntsville, 670 So.2d
848, 852 (Ala. 1995) (“where a plaintiff alleges a factual pattern that demonstrates ‘neglect,
carelessness, or unskillfulness’ the plaintiff has stated a cause of action under Ala.Code 1975, §
11-47-190”). Under these circumstances, the wholesale dismissal of the Complaint on § 11-47190 grounds is unwarranted because, at a minimum, Windham has alleged a factual pattern
demonstrating neglect, carelessness, and/or unskillfulness by Officers Scott and Rehorn.25
Third, the City argues that Windham’s claims against it for punitive damages are not
actionable as a matter of Alabama and federal law. Considerable authority supports this position.
See, e.g., Ala. Code § 6-11-26 (“Punitive damages may not be awarded against the State of
Alabama or any county or municipality thereof ….”); City of Tarrant v. Jefferson, 682 So.2d 29,
30 (Ala. 1996) (“federal law prohibits a § 1983 award of punitive damages against a
municipality”); Henderson v. City of Fairfield, Ala., 2013 WL 550158, *12 (N.D. Ala. Feb. 13,
2013) (“even if Henderson had a viable claim against the City, he would not be entitled to
punitive damages from it”). Plaintiff offers no response to this compelling, legally supported
argument. Accordingly, the Motion to Dismiss will be granted as to all of Windham’s claims
against the City of Fairhope for punitive damages.26
The Fairhope Defendants elected not to direct their § 11-47-190 argument at
particular claims or causes of action, but instead to aim it at the Complaint as a whole. The
Court declines sua sponte to tease out potential (and unstated) arguments about how that statute
may apply to particular claims or causes of action herein, but instead considers movants’ position
in the all-or-nothing manner in which it was presented.
There is some ambiguity in the Complaint as to whether Windham seeks punitive
damages against the City. Counts X and XI (which specifically concern municipal liability) do
not mention punitive damages; however, other claims in which the City is listed as a named
The Kostyra Defendants’ Motion to Dismiss.
Defendants Frank and Anita Kostyra have brought a Rule 12(b)(6) Motion of their own,
directed at Windham’s claims against them in the Complaint. That Motion has likewise been
briefed (although the Kostyras elected not to file a reply brief), and will now be considered on a
Federal Conspiracy Claim (Count IX).
As previously noted, Count IX of the Complaint alleges that the Kostyras and Officer
Scott violated 42 U.S.C. § 1985(3) by conspiring to deprive Windham of her due process rights
to be free from arrest and prosecution without probable cause, all because of her perceived
mental disability. The Kostyra Defendants move to dismiss Count IX on the ground that the
Complaint “is devoid of any proof or allegation of a substantiated agreement between the
Kostyras and other(s).” (Doc. 12-1, at 4.) It is axiomatic, of course, that a § 1985 conspiracy
claim requires proof of an agreement. See, e.g., Cook v. Randolph County, Ga., 573 F.3d 1143,
1149 (11th Cir. 2009) (reciting elements); Dickerson v. Alachua County Com’n, 200 F.3d 761,
767 (11th Cir. 2000) (“In order to establish a § 1985(3) conspiracy claim, Dickerson must show
an agreement between ‘two or more persons’ to deprive him of his civil rights.”). Thus, at the
pleading stage, a plaintiff asserting a § 1985(3) claim must set forth “supporting facts that tend to
show an unlawful agreement.” Suber v. Guinta, --- F. Supp.2d ----, 2012 WL 4510708, *11
(E.D. Pa. Sept. 28, 2012) (citation omitted). In other words, a plaintiff “must provide some
factual basis … that defendants entered into an agreement, express or tacit, to achieve the
unlawful end.” Robinson v. County of Yates, 821 F. Supp.2d 564, 568 (W.D.N.Y. 2011)
(citations omitted); see also Boyle v. Barnstable Police Dep’t, 818 F. Supp.2d 284, 318 (D.
Mass. 2011) (“a claim of conspiracy must allege facts that suggest a conspiracy rather than set
out conclusory allegations that the defendants made an unlawful agreement”).
Contrary to the Kostyra Defendants’ Motion to Dismiss, the Complaint does not couch
the conspiracy allegations in generic and conclusory labels. Rather, Windham’s pleading
defendant do claim punitive damages, without distinguishing between the relief sought from the
City and that sought from the other defendants. This Order resolves that ambiguity by holding
once and for all that Windham cannot pursue claims for (and cannot receive an award of)
punitive damages against the City of Fairhope in this litigation.
alleges, among other facts, that (i) the Kostyras have had an axe to grind against Windham for
many years, manifested in an expansive campaign of criminal complaints against her, of which
history Officer Scott was well aware (doc. 1, ¶¶ 16, 17); (ii) in or around late 2011, Kostyra
reached an understanding with Fairhope police that they would arrest Windham if she went into
the street and blocked traffic (id., ¶ 20); (iii) shortly before January 12, 2012, Kostyra went to the
Fairhope police to “warn them” that Windham “would snap” and that the Kostyras “would be a
target of her fury” (id., ¶ 64); (iv) Kostyra lied to the Fairhope police on January 12 by reporting
that Windham was in the street blocking traffic, which she was not, because he knew from his
arrangement with Fairhope police that such a report would result in Windham’s arrest (id., ¶ 24);
(v) Officer Scott arrested Windham on January 12 at Kostyra’s bidding even though Officer
Scott never observed her to be blocking traffic and had no reason to believe that she actually had
been blocking traffic (id., ¶ 29); and (vi) Officer Scott immediately commenced commitment
proceedings against Windham, as Kostyra had done before. These and other facts are
sufficiently detailed at the pleadings stage to raise an inference of a conspiracy (i.e., an express
or tacit agreement) between the named defendants and thereby overcome the low bar of Rule
12(b)(6) review. The Kostyras are not entitled to dismissal of Count IX.
State-law False Imprisonment / False Arrest (Count XII).
It is undisputed that Frank Kostyra (who is not a law enforcement officer) did not arrest
or detain Windham on January 12, 2012. Nonetheless, plaintiff has named Kostyra as a
defendant in Count XII (false imprisonment / false arrest under Alabama law) for the stated
reason that he “set plaintiff’s false arrest and false imprisonment [in motion] by initiating a
police report falsely claiming that plaintiff was blocking traffic.” (Doc. 1, ¶ 168.) Kostyra now
moves to dismiss Count XII, reasoning that the mere act of making a police report does not
expose him to liability for a subsequent improper arrest / detention.
As a general proposition, it is true that “someone who simply reports a potential crime to
the police will not face liability for false imprisonment” because such conduct is not viewed “as
an instigation or participation in the detention or arrest.” Yabba v. Alabama Christian Academy,
823 F. Supp.2d 1247, 1251 (M.D. Ala. 2011) (citation omitted). There is, however, an important
caveat. Alabama law provides that “[a] person who reports a suspicion that another person may
be guilty of a crime cannot be liable for false imprisonment unless that person has acted in bad
faith, without reasonable cause to believe that the accused is guilty of the crime.” Myles v.
Screentech, Inc., 98 So.3d 563, 569 (Ala.Civ.App. 2012) (emphasis added, and citations and
internal quotation marks omitted); see also Crown Cent. Petroleum Corp. v. Williams, 679 So.2d
651, 655 (Ala. 1996) (“a person does not instigate an arrest by merely providing information that
results in another’s arrest, unless the person acts in bad faith (i.e., lacks any reasonable basis
upon which to accuse another of a crime)”). The exception looms large here, because the
Complaint is rife with specific facts demonstrating bad faith on Kostyra’s part. Taking the
factual allegations of the Complaint as true, Frank Kostyra’s police report was 100% fabrication,
presented for the sole purpose of harassing Windham in furtherance of a longstanding
neighborhood feud. Because the Complaint adequately alleges that Kostyra lacked any
reasonable basis upon which to accuse Windham of a crime when he called the police on January
12, 2012, Count XII states a cognizable claim against him for false imprisonment under Alabama
law. The Kostyras’ Motion to Dismiss is properly denied on this claim.
State-law Excessive Force / Assault and Battery (Counts XIII, XIV).
Plaintiff has also named Frank Kostyra as a defendant in her state-law claims for
excessive force (Count XIII) and assault and battery (Count XIV). The Complaint does not
allege that Kostyra ever touched Windham on January 12, 2012; rather, it attempts to bootstrap
Kostyra’s liability on the same “instigation” theory that props up Count XII, discussed supra.
(Doc. 1, ¶¶ 186, 199.) But Alabama courts do not appear to recognize an instigation theory of
liability against a person making a police report when the police subsequently use unnecessary
and unreasonable force to secure a suspect. Rather, the Alabama torts of excessive force and
assault and battery both require proof that the defendant used the force or did the touching. See,
e.g., Walker v. City of Huntsville, 62 So.3d 474, 494 (Ala. 2010) (“The plaintiff in an action
alleging assault and battery must prove (1) that the defendant touched the plaintiff; (2) that the
defendant intended to touch the plaintiff; and (3) that the touching was conducted in a harmful or
offensive manner.”) (citations omitted).27 With no allegations that Kostyra touched Windham or
participated in the physical altercation, the Kostyra Defendants argue, Counts XIII and XIV must
be dismissed as to Frank Kostyra.
See also Franklin, 670 So.2d at 852 (state-law excessive force claim “is the
equivalent of asserting an assault and battery not measured or patterned for the circumstances, or
an unskilled response”); Ruffino, 891 F. Supp.2d at 1279 (“Under Alabama law, excessive force
during an arrest constitutes assault and battery.”).
In response, plaintiff admits that “Frank Kostyra should have been excluded under”
Count XIII. (Doc. 16, at 11.) The Motion to Dismiss is therefore granted as to Count XIII,
insofar as it relates to defendant Kostyra. As for Count XIV, plaintiff states that she is
“abandoning” the battery portion of the claim against Frank Kostyra. (Id.) Nonetheless, she
professes to intend to proceed in Count XIV on an assault theory against Kostyra based on
allegations that he pointed a rifle at her in April 2008. (Id. at 11-12.) This argument fails.
Nothing in the text of Count XIV would reasonably place defendants on notice that the assault
and battery claim related to events occurring on any date other than January 12, 2012. Count
XIV is grounded in events taking place in January 2012, not April 2008. It does not mention a
rifle or accuse Kostyra of assault because he pointed a rifle at Windham four years before the
events referenced in that Count. Indeed, the sole well-pleaded factual allegation about Kostyra
in Count XIV is that he “fil[ed] a false police report” on January 12, 2012. (Doc. 1, ¶ 186). The
Motion to Dismiss must be evaluated by reference to claims actually alleged in the pleading, not
claims that plaintiff meant to allege or forgot to allege or now thinks she wants to allege. The
Motion to Dismiss is granted as to Count XIV in its entirety, with respect to defendant Frank
State-law Malicious Prosecution (Count XVI).
Count XVI of the Complaint is a state-law claim for malicious prosecution against Anita
Kostyra relating to a criminal harassment complaint that she brought against Windham in
October 2010. (Doc. 1, ¶¶ 16(n), 206, 208.)28 Under Alabama law, the elements of a malicious
prosecution claim are “(1) that a prior judicial proceeding was instituted by the present
defendant, (2) that in the prior proceeding the present defendant acted without probable cause
and with malice, (3) that the prior proceeding ended in favor of the present plaintiff, and (4) that
the present plaintiff was damaged as a result of the prior proceeding.” Hunter v. Mooring Tax
Asset Group, LLC, 53 So.3d 879, 883 (Ala. 2009) (citation omitted).
In moving to dismiss Count XVI, Ms. Kostyra focuses on the second element by arguing
that the Complaint “does not provide how said prosecution was without basis” and “asserts mere
One sentence in Count XVI references a date of “October 2012” for this
harassment complaint. (Doc. 1, ¶ 206.) By all appearances, the “2012” date is a typographical
error, and both sides appear to be in agreement that the incident in question was a complaint
lodged by Ms. Kostyra in October 2010, not 2012.
conclusory allegations of malice.” (Doc. 12-1, at 8.)29 A reasonable reading of the Complaint
shows, however, that Count XVI adequately pleads a claim of malicious prosecution. Windham
alleges that Anita Kostyra has harbored bitterness against her dating back to an October 2006
insurance dispute (doc. 1, ¶ 210), that the October 2010 harassment complaint marked the 13th
time in a four-year span that Ms. Kostyra or her husband had filed a criminal complaint or
initiated commitment proceedings against Windham (id., ¶ 16), that all 12 of the Kostyras’
earlier complaints against Windham had been dismissed or decided in Windham’s favor or
otherwise abandoned (id.), and that the October 2010 criminal complaint was likewise decided in
Windham’s favor (id.). Given this frankly extraordinary history of acrimony and pattern of
unsuccessful legal attacks launched by the Kostyras as chronicled in the Complaint, reasonable
inferences are created that Ms. Kostyra bore a long-running grudge against Windham, that the
October 2010 complaint was one in an ongoing series of false and/or otherwise baseless attempts
by the Kostyras to have Windham imprisoned or committed, and that the October 2010
complaint itself was lacking in probable cause and brought with malice. Certainly, the
Complaint is sufficiently detailed to nudge this claim from the conceivable to the plausible, as
required by the Twombly / Iqbal line of authorities. Accordingly, the Motion to Dismiss will be
denied as to Count XVI.
Defamation (Count XVIII).
Next, Count XVIII of the Complaint is a defamation claim brought against defendant
Frank Kostyra relating to the January 12, 2012 e-mail message he transmitted about Windham’s
arrest. That message included statements that, earlier that morning, Windham “started
destroying her front yard like a mad person;” that she “stopped traffic, & defamed us to the
stopped travelers, yelling & screaming & pointing our way;” and the police arrested her “on the
Movants also complain that “the alleged malicious prosecution is irrelevant to the
current matter before the Court and does not arise out of the same set of facts, transaction or
occurrence.” (Doc. 12-1, at 9.) However, they do not explain, and this Court does not perceive,
how such an objection might justify dismissal of Count XVI under Rule 12(b)(6). Rather than
arguing failure to state a claim, the Kostyra Defendants are alluding to a joinder objection, which
does not belong in a Rule 12(b)(6) motion. What’s more, the joinder argument appears
unfounded, given the Federal Rules of Civil Procedure’s provision that “[a] party asserting a
claim … may join, as independent or alternative claims, as many claims as it has against an
opposing party.” Rule 18(a), Fed.R.Civ.P. For Motion to Dismiss purposes, this relevancy
objection is overruled.
ground in handcuffs, in front of a vehicle she stopped.” (Doc. 1, ¶ 64.) The well-pleaded
allegations of the Complaint reflect that Kostyra’s account of these events was false in several
respects. For example, plaintiff’s version of the facts is that (i) she was not “destroying her front
yard like a mad person” but was simply “tending to her yard gathering debris” (id., ¶ 21); and (ii)
she did not stop or block traffic, but merely provided aid to a stranded motorist.
Kostyra contends that Count XVIII should be dismissed because the January 12 e-mail
contained statements of opinion, which Kostyra says are not actionable in defamation under
Alabama law pursuant to Sanders v. Smitherman, 776 So.2d 68, 74 (Ala. 2000) (“One cannot
recover in a defamation action because of another’s expression of an opinion based upon
disclosed, nondefamatory facts, no matter how derogatory the expression may be.”). This
argument misses the point. A reasonable reading of the Complaint and Count XVIII is that
Windham is proceeding against Kostyra for making false statements of fact (not opinion) in the
January 12 e-mail that she was destroying her front yard, acting “like a mad person,” stopping
traffic, screaming and yelling and so on. Although Kostyra also suggests these purportedly false
statements were not defamatory, the bizarre behavior recounted in Kostyra’s e-mail (which,
again, Windham says never happened) would obviously “tend so to harm the reputation of
another as to lower [her] in the estimation of the community or to deter third persons from
associating or dealing with [her].” Dudley v. Bass Anglers Sportsman Soc., 777 So.2d 135, 140
(Ala.Civ.App. 2000) (citations omitted).
In short, the Court readily finds that Count XVIII states a cognizable claim of defamation
against Kostyra under Alabama law, and denies the Motion to Dismiss with respect to that claim.
Invasion of Privacy (Count XX).
Count XX of the Complaint alleges that Kostyra’s January 12 e-mail constituted an
invasion of privacy because it “was designed to place her in a false light and did place her in a
false light.” (Doc. 1, ¶ 237.) Kostyra argues that this claim should be dismissed because the
underlying events occurred in public view. (Doc. 12-1, at 11.) Applicable law is clear that “[a]
false-light claim does not require that the information made public be private; instead, the
information made public must be false.” Ex parte Bole, 103 So.3d 40, 52 (Ala. 2012) (citations
omitted). As discussed with regard to Count XVIII, supra, the Complaint adequately pleads
falsity. Defendant also suggests (although he uses different terminology) that Count XX flunks
the requirement that “the false light in which the other was placed would be highly offensive to a
reasonable person.” Bole, 103 So.3d at 51 (citations omitted). False accusations that Windham
was conducting herself in an uncontrolled, erratic manner suggesting mental instability could
reasonably be viewed as highly offensive; therefore, this element is satisfied. Movant’s
remaining arguments for dismissal fail to appreciate and allow for the legal framework
applicable to “false-light” claims of invasion of privacy under Alabama law, and therefore are
not meritorious. The Motion to Dismiss is denied as to Count XX.
Motion for More Definite Statement.
Finally, the Kostyra Defendants move for a more definite statement, seeking an order
requiring the plaintiff to supplement her 59-page, 246-paragraph Complaint with additional
allegations identifying the “specific amount or type of relief sought from the Kostyras.” (Doc.
12-1, at 12.)30 The Federal Rules of Civil Procedure do not demand such precision. See Rule
8(a)(3), Fed.R.Civ.P. Moreover, a plain reading of the Complaint is sufficient to place the
Kostyra Defendants on notice that Windham is seeking to recover from them compensatory
damages, emotional distress damages, punitive damages, interest, attorney’s fees and costs. (See
doc. 1, at 58-59.) To the extent that the Kostyra Defendants desire greater elaboration or
specificity from Windham as to the relief she seeks from them, they will have ample opportunity
to explore that topic via ordinary discovery processes. See, e.g., Fathom Exploration, LLC v.
Unidentified Shipwrecked Vessel or Vessels, 352 F. Supp.2d 1218, 1221-22 (S.D. Ala. 2005)
(Rule 12(e) motions “are viewed with disfavor and are rarely granted,” and are “not a substitute
for discovery”). Accordingly, the Kostyra Defendants’ Motion for More Definite Statement
under Rule 12(e), Fed.R.Civ.P., is denied.
For all of the foregoing reasons, it is ordered as follows:
Plaintiff’s Motion to Exceed Page Limitation (doc. 14) is granted, and her brief
(doc. 15) is accepted in its current form.
The Kostyra Defendants purport to be requesting a more definite statement
pursuant to Rule 54(e) of Alabama Rules of Civil Procedure. This case is pending in federal
court, not state court. It is governed by the Federal Rules of Civil Procedure, not their state
analogue. Accordingly, the Court construes the Motion for More Definite Statement as having
been brought pursuant to Rule 12(e) of the Federal Rules of Civil Procedure, regardless of how
movants label it.
The Fairhope Defendants’ Motion to Dismiss (doc. 7) is granted in part, and
denied in part. The Motion is granted as to Count IV (invasion of privacy as to
Chief Press) and Count V (invasion of privacy as to Officers Scott and Rehorn),
and those causes of action are dismissed. Plaintiff’s claims for punitive damages
against the City of Fairhope are likewise dismissed. In all other respects, the
Motion is denied.
The Kostyra Defendants’ Amended Motion to Dismiss or in the Alternative,
Motion for a More Definite Statement (doc. 12) is granted in part, and denied in
part. The Motion to Dismiss is granted as to Count XIII (excessive force) and
Count XIV (assault and battery), and those causes of action are dismissed as to
the Kostyra Defendants only (not the Fairhope Defendants). In all other respects,
the Motion to Dismiss is denied. The Motion for More Definite Statement is
Pursuant to Rule 12(a)(4)(A), Fed.R.Civ.P., all defendants are ordered to file
answers to the Complaint on or before April 30, 2013.
DONE and ORDERED this 16th day of April, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
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