Mongham v. Soronen et al

Filing 22

ORDER granting in part 11 Motion for Summary Judgment as to Plaintiff Monghams federal claim, which is DISMISSED with prejudice. It is further ORDERED that Monghams state law claims are REMANDED to the Circuit Court of Marengo County, Alabama. Signed by Judge Kristi K. DuBose on 2/26/2013. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
JOHNNY MONGHAM,
Plaintiff,
vs.
TIM SORONEN, ZACK FLUKER, and
TOMMY REESE,
Defendants.

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) CIVIL ACTION NO. 12-00288-KD-B
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ORDER

This action is before the Court on the Motion for Summary Judgment (Doc. 11) filed by
Defendants Tim Soronen (“Soronen”), Zack Fluker (“Fluker”), and Tommy Reese (“Reese”)
(collectively, “Defendants”) pursuant to Rule 56 of the Federal Rules of Civil Procedure.1 Upon
consideration, and for the reasons stated herein, the Court finds that Defendants’ motion is due to
be GRANTED in part and that the remaining claims are due to be REMANDED.
I.

Procedural History
On April 3, 2012, Plaintiff Johnny Mongham (“Mongham”) filed a Complaint in the

Circuit Court of Marengo County, Alabama, alleging various civil rights violations under federal
and state law by Defendants, all of whom are officers with the City of Demopolis Police
Department. (Doc. 1-1). On April 27, 2012, Defendants removed the case to this Court.2 (Doc.

1

The Plaintiff was given two extensions (Docs. 15 & 19) to give him time to file a
response. No response has been filed, nor has a request for further extension.
2

The Court has original jurisdiction over Mongham’s federal claim pursuant to 28 U.S.C.
§ 1331. Therefore, removal was proper pursuant to 28 U.S.C. § 1441(a). The Court arguably
has supplemental jurisdiction over Mongham’s state law claims pursuant to 28 U.S.C. § 1367(a).
In their Notice of Removal, Defendants cited 28 U.S.C. § 1443 as a basis for removal. (Doc. 1 at
2, ¶ 9). However, § 1443 is inapplicable in this case because 1) Mongham’s federal claims do
(Continued)

1). Removal was timely and otherwise properly executed pursuant to 28 U.S.C. § 1446.
On June 14, 2012, Mongham filed an Amended Complaint (Doc. 9) alleging the
following causes of action:
•

Count 1: unlawful seizure of his car by Soronen and Fluker without probable cause,
in violation of Article 1, § 5 of the 1901 Constitution of Alabama, following
Mongham’s February 10, 2010 arrest for distribution of a controlled substance.

•

Count 2: unlawful holding of his car by Soronen, Fluker, and Reese without due
process in violation of Article 1, § 6 of the 1901 Constitution of Alabama, due to the
failure to properly conduct forfeiture proceedings in state court pursuant to Ala. Code
§ 20-2-93 and § 28-4-286.

not involve issues of racial equality and 2) § 1443 does not apply to civil rights arising under
state law. See Provident Funding Assocs., LP v. Obande, 414 F. App'x 236, 238 (11th Cir. 2011)
(“A removal petition filed under § 1443 must satisfy the two-prong test set out in Georgia v.
Rachel, 384 U.S. 780, 792, 794, 86 S. Ct. 1783, 1790, 1791, 16 L. Ed. 2d 925 (1966). ‘First, the
petitioner must show that the right upon which the petitioner relies arises under a federal
law “providing for specific civil rights stated in terms of racial equality.” ’ [Alabama v.
]Conley, 245 F.3d [1292,] 1295 [(11th Cir. 2001) ](quoting Rachel, 384 U.S. at 792, 86 S. Ct. at
1790). ‘Second, the petitioner must show that he has been denied or cannot enforce that right in
the state courts.’ Id. A defendant's reliance on broad constitutional or statutory provisions does
not support removal under § 1443 when those provisions ‘are phrased in terms of general
application available to all persons or citizens, rather than in the specific language of racial
equality that section 1443 demands.’ Rachel, 384 U.S. at 792, 86 S. Ct. at 1790 (holding that ‘the
defendants' broad contentions under the First Amendment and the Due Process Clause of the
Fourteenth Amendment cannot support a valid claim for removal under § 1443’).” (emphasis
added)).

2

•

Count 3: unlawful search of his person without probable cause due to the actions of
Soronen and Fluker, in violation of the Fourth and Fourteenth Amendments to the
United States Constitution and actionable under 42 U.S.C. § 1983, during the August
5, 2011 search of Mongham’s mother’s premises pursuant to a search warrant.

Defendants denied liability on all claims.

(Doc. 10).

On November 14, 2012,

Defendants filed the present motion, moving for summary judgment in their favor on all claims.
The motion is now ripe for review.
II.

Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). Rule 56(c) governs procedures and provides as follows:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other
materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party
may object that the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it
may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.
Fed. R. Civ. P. 56(c).
3

Defendants, as the parties seeking summary judgment, bear the initial responsibility of
informing the district court of the basis for their motion and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which they believe demonstrate the absence of a genuine issue of material fact.
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)).

The mere existence of a factual dispute will not

automatically necessitate denial; rather, only factual disputes that are material preclude entry of
summary judgment. Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 809
(11th Cir. 2004).
Because Mongham failed to respond to the motion for summary judgment and
consequently failed to identify any disputed facts in Defendants’ brief or its suggested
determinations of findings of fact, his “[f]ailure to do so will be considered an admission that no
material factual dispute exists[.]” S.D. Ala. L.R. 7.2(b). See Mann v. Taser Int'l, Inc., 588 F.3d
1291, 1302–03 (11th Cir. 2009) (giving deference to interpretation of local rule of Northern
District of Georgia which provides that if a “party responding to a summary judgment motion
does not directly refute a material fact set forth in the movant's Statement of Material Facts with
specific citations to evidence, or otherwise fails to state a valid objection to the material fact
pursuant to Local Rule 56.1B(2), such fact is deemed admitted by the respondent.”); Patton v.
City of Hapeville, Ga., 162 F. App’x 895, 896 (11th Cir. 2006)3 (unreported opinion) (“We
conclude from the record, however, that the district court properly held that the defendants'
statement of undisputed facts filed with their motion for summary judgment were admitted when
3

Unpublished opinions are not considered binding precedent, but may be cited as persuasive
authority. U.S. Ct. of App. 11th Cir. Rule 36-2.

4

Patton failed to respond to the statement of facts in accordance with the Federal Rules of Civil
Procedure and the Local Rules for the United States District Court for the Northern District of
Georgia.”).
Facts4

III.

a. Seizure & Holding of Mongham’s Car
On November 3, 2009, Defendant Fluker, a detective with the City of Demopolis Police
Department (Defendant Reese is the Chief of Police (Doc. 11-1 at 5, Mongham Dep., p. 43)),
conducted an undercover operation using a confidential informant, who had arranged a meeting
to purchase crack cocaine from Plaintiff Mongham. The informant was provided money and
equipped with an audio and video recording device.

The informant met Mongham in the

parking lot of a Demopolis hospital, where Mongham was sitting in his car, a 2001 Mercury
Marquis. The informant got into Mongham’s car and purchased two off-white substances from
Mongham. After completing the transaction, the informant turned the substances over to Fluker.
(Doc. 11-4, Incident/Offense Report dated 11/03/2009; Doc. 11-7, Informant’s Written
Statement).

The substances were then submitted to the Alabama Department of Forensic

Sciences for analysis, which revealed the presence of 1.16 grams of cocaine base. (Doc. 11-5,
Evidence Submission Form; Doc. 11-6, Certificate of Analysis).
Mongham was indicted by a Marengo County Grand Jury on the charge of unlawful
distribution of a controlled substance under Ala. Code § 13A-12-211 (1975), and a warrant for
his arrest was issued on February 10, 2010. (Doc. 11-3, Warrant of Arrest). At approximately
3:50 p.m. that same day, Fluker and another police officer arrested Mongham pursuant to the

4

The Court has made its determination of facts by “review[ing] the record, and all its inferences,
in the light most favorable to [the Plaintiff,] the nonmoving party.” Benson v. Tocco, Inc., 113 F.3d
1203, 1207 (11th Cir. 1997).

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warrant, under the supervision of Defendant Soronen, another detective with the Demopolis
Police Department.

(Id.; Doc. 11-8, Arrest Report).

Mongham was held in custody for

approximately 2-3 hours before posting bond. (Doc. 11-1 at 3, p. 33).
Fluker seized Mongham’s car following the arrest that same day pursuant to Ala. Code §
20-2-93 (1975), which allows for the seizure and forfeiture of certain property in connection with
criminal activity.5 (Id. at 6, p. 45; Doc. 11-5, ¶ 2, Soronen Aff.). Once all necessary bond, title
and charge documentation was obtained, Fluker and Soronen drafted the necessary paperwork to
turn Mongham’s car over to the Marengo County District Attorney’s Office so that a forfeiture
proceeding could be filed. The paperwork to release the vehicle was given to the District
Attorney’s Office sometime in February 2010. (Doc. 11-5, ¶ 3).
On July 27, 2010, Soronen inquired with the District Attorney’s Office on the status of
the forfeiture proceeding, explaining that nothing had been done with Mongham’s car. Soronen
was told that the paperwork he had submitted on the car had been misplaced or overlooked.
Soronen immediately resubmitted the paperwork for the release of the car and had the District
Attorney’s Office sign as having received the vehicle and release. Soronen heard nothing further
on the matter until learning that the forfeiture proceeding filed by the prosecutor had been
dismissed. (Id., ¶ 4; Doc. 11-2, Asset Confiscation Report). However, by this time Mongham

5

Section 20-2-93(h) states in part: “Except as specifically provided to the contrary in this
section, the procedures for the condemnation and forfeiture of property seized under this section shall be
governed by and shall conform to the procedures set out in Sections 28-4-286 through 28-4-290 . . .”
(emphasis added). Section 28-4-286 states, in relevant part: “It shall be the duty of such officer in the
county or the Attorney General of the state to institute at once or cause to be instituted condemnation
proceedings in the circuit court by filing a complaint in the name of the state against the property seized,
describing the same, or against the person or persons in possession of said vehicles of transportation, if
known, to obtain a judgment enforcing the forfeiture . . . ”

6

had ceased making payments on the car, and it was repossessed by the lienholder. (Doc. 11-1 at
3, pp. 35-36).
b. Search of Mongham’s Person
On August 1, 2011, Demopolis Police Narcotics Agent Cole Basinger (“Basinger”)
obtained a search warrant from a Demopolis municipal judge for a residence located on East
Decatur Street in Demopolis, based on probable cause that illegal narcotics were being kept and
sold there. (Doc. 11-12 Application & Aff. for Search Warrant; Doc. 11-13, Search Warrant).
Mongham’s mother owned the residence. (Doc. 11-1 at 4, pp. 37-38). Mongham would stay
there “probably about 15 times a year or so” and kept some extra clothes there, but his primary
residence was in Uniontown. (Id. at 5, pp. 5-6, pp. 43-45).
On August 5, 2011, Basinger and other officers from the Demopolis police, along with
members of the 17th Judicial Drug Task Force and the Marengo County Sheriff’s Office,
executed a search of the residence.

(Doc. 11-11 at 1-2, Incident/Offense Report dated

08/05/2011). Mongham was present at the residence during the search, along with several family
members and friends. (Doc. 11-1 at 4, pp. 38-39). Several people were detained during the
search, with two black males being brought to the police department and questioned before being
released, and several items were seized. Fluker and Soronen assisted in the operation as backup.
(Doc. 11-11 at 2-3; Doc. 11-15, ¶ 5). Neither participated in the procurement of the search
warrant or in the investigation leading up to the search. (Doc. 11-15, ¶ 5). No arrests were made
during the search. (Doc. 11-1 at 4, p. 40). Mongham was outside the residence during the search
and does not know what went on inside. (Id. at 5, p. 41). Soronen did not search Mongham
while at the residence and was not present during any search of his person. (Doc. 11-15, ¶ 6).
IV.

Analysis
a. Count 3 - § 1983 Claim
Count Three of the Amended Complaint, the only count stating a claim under federal law,
7

alleges that Soronen and Fluker violated his right to be free of unreasonable search and seizure
pursuant to the Fourth and Fourteenth Amendments.

Specifically, Mongham alleges that

Soronen and Fluker obtained the search warrant for his mother’s residence and that the search of
the premises “result[ed] in a search of his person without probable cause resulting in nothing
illegal being found on him.” (Doc. 9 at 4, ¶ 20). The Fourth Amendment states: “The right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.”6
The evidence presented indicates that neither Fluker nor Soronen searched Mongham
during the search of his mother’s house, and Mongham has failed to rebut this evidence.
Soronen affirmatively states in his affidavit that he did not search Mongham and was not present
during any search of Mongham. (Doc. 11-15, ¶ 6). Moreover, Mongham’s own testimony
indicates that he does not hold either Soronen or Fluker responsible for any search of his person:
Q:

Other than taking your car or being there when your car was taken, has
Tim Soronen ever done you wrong?

A:

No, sir.

Q:

Other than taking your car, has Zack Fluker ever done you wrong?

A:

No, sir.

(Doc. 11-1 at 6, p. 46). Moreover, though Mongham alleged that Soronen and Fluker were

6

“[T]he Fourth Amendment is enforceable against the States through the Fourteenth
Amendment.” Camara v. Mun. Court of City & County of San Francisco, 387 U.S. 523, 528 (1967).

8

responsible for obtaining the search warrant, Defendants’ uncontested evidence indicates that
Agent Basinger was the officer responsible for its issuance. Soronen avers, and Mongham does
not dispute, that neither he nor Fluker was involved in procuring the search warrant for
Mongham’s mother’s residence, nor was either involved in the investigation leading to the
procurement of that warrant. (Doc. 11-15, ¶ 5). The scope of their involvement in the search of
the residence appears to be limited to assisting in the execution of the warrant, along with a
number of other officers from various departments. The warrant itself, issued by a municipal
court judge, authorized the search of Mongham’s mother’s residence and “all persons on the
premises.” (Doc. 11-13 at 1)
Even assuming that Fluker and/or Soronen illegally searched Mongham, or caused him to
be illegally searched, the Court finds that there is no material dispute to the fact that the officers
would be entitled to qualified immunity in relation to that search, as it was conducted pursuant to
a facially valid warrant. With regard to determining qualified immunity for alleged Fourth
Amendment violations involving searches or seizures, the Supreme Court has recently held:
“The doctrine of qualified immunity protects government officials ‘from liability
for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.’ ” Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d
565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73
L.Ed.2d 396 (1982)). Qualified immunity “gives government officials breathing
room to make reasonable but mistaken judgments,” and “protects ‘all but the
plainly incompetent or those who knowingly violate the law.’ ” Ashcroft v. alKidd, 563 U.S. ––––, ––––, 131 S. Ct. 2074, 2085, 179 L. Ed. 2d 1149 (2011)
(quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271
(1986)). “[W]hether an official protected by qualified immunity may be held
personally liable for an allegedly unlawful official action generally turns on the
‘objective legal reasonableness' of the action, assessed in light of the legal rules
that were ‘clearly established’ at the time it was taken.” Anderson v. Creighton,
483 U.S. 635, 639, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987) (citation omitted).
Where the alleged Fourth Amendment violation involves a search or seizure
pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the
clearest indication that the officers acted in an objectively reasonable manner or,
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as we have sometimes put it, in “objective good faith.” United States v. Leon, 468
U.S. 897, 922–923, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).
Messerschmidt v. Millender, 132 S. Ct. 1235, 1244-45 (2012).

Of course, this does not

automatically end the Court’s inquiry into the application of qualified immunity. Messerschmidt
further states:
[U]nder our precedents, the fact that a neutral magistrate has issued a warrant
authorizing the allegedly unconstitutional search or seizure does not end the
inquiry into objective reasonableness. Rather, we have recognized an exception
allowing suit when “it is obvious that no reasonably competent officer would have
concluded that a warrant should issue.” Malley, 475 U.S., at 341, 106 S. Ct. 1092
...
Our precedents make clear, however, that the threshold for establishing this
exception is a high one, and it should be. As we explained in Leon, “[i]n the
ordinary case, an officer cannot be expected to question the magistrate's probablecause determination” because “[i]t is the magistrate's responsibility to determine
whether the officer's allegations establish probable cause and, if so, to issue a
warrant comporting in form with the requirements of the Fourth Amendment.”
Id., at 921, 104 S. Ct. 3405; see also Malley, supra, at 346, n. 9, 106 S. Ct. 1092
(“It is a sound presumption that the magistrate is more qualified than the police
officer to make a probable cause determination, and it goes without saying that
where a magistrate acts mistakenly in issuing a warrant but within the range of
professional competence of a magistrate, the officer who requested the warrant
cannot be held liable” (internal quotation marks and citation omitted)).
132 S. Ct. at 1245 (footnote omitted). Regarding the standard for denying qualified immunity,
the Eleventh Circuit has stated: “[A] plaintiff must show that when the defendant acted, the law
was developed in such a concrete and factually defined context to make it obvious to all
reasonable government actors, in the defendant's place, that what he is doing violates federal
law.” Jones v. City of Dothan, Ala., 121 F.3d 1456, 1459 (11th Cir. 1997) (citations and
quotations omitted).
The Fourth Circuit has held that “the inclusion of ‘all persons’ language in a warrant
presents probable cause issues rather than particularity problems. ‘A search warrant authorization
10

to search all persons found within a specifically described place is not lacking particularity in the
sense that the executing officer will be unable readily to determine to whom the warrant
applies.’” Owens ex rel. Owens v. Lott, 372 F.3d 267, 276 (4th Cir. 2004) (quoting 2 Wayne R.
LaFave, Search and Seizure § 4.5(e), at 546-57 (3d ed.1996); also citing State v. De Simone, 288
A.2d 849, 850-51 (N.J. 1972) (“[W]ith regard to the Fourth Amendment demand for specificity
as to the subject to be searched, there is none of the vice of a general warrant if the individual is
... identified by physical nexus to the ongoing criminal event itself.”)). Several circuits have held
that “all-person” warrants can be constitutional if supported by probable cause based on facts
similar to those used to support the search warrant in this case. See United States v. Abbott, 574
F.3d 203, 212 (3d Cir. 2009), aff'd, 131 S. Ct. 18 (U.S. 2010) (“Consistent with Doe[ v. Groody,
361 F.3d 232, 239 (3d Cir. 2004)] and two of our sister courts of appeals, we now hold that a
warrant may authorize the search of all persons present if there is probable cause to believe that a
premises is dedicated to criminal activity. See Owens v. Lott, 372 F.3d 267, 276 (4th Cir. 2004)
(‘An “all persons” warrant can pass constitutional muster if the affidavit and information
provided to the magistrate supply enough detailed information to establish probable cause to
believe that all persons on the premises at the time of the search are involved in the criminal
activity.’); cf. Marks v. Clarke, 102 F.3d 1012 (9th Cir. 1996) (‘An all persons present warrant
might be appropriate for a different kind of locale—one dedicated exclusively to criminal
activity—for example, a building or apartment used as a crack house, a barn used as a
methamphetamine lab, or a warehouse used exclusively as a storage place for arms.’).
In adopting this view, Owens noted that the constitutionality of “all persons” warrants is
far from settled law. See 372 F.3d at 274-75 (“Whether, and under what circumstances, an ‘all
persons’ warrant is valid under the Fourth Amendment presents a novel question in this circuit. It
11

also remains unanswered in the Supreme Court, which acknowledged this issue in Ybarra[ v.
Illinois], 444 U.S. [85,] 92 n.4, 100 S. Ct. 338[ (1979)], but left its resolution for another day . . .
The minority view emerging []is that a premises search warrant that also authorizes the search of
‘all persons’ found on the premises being searched contravenes the particularity requirement of
the Fourth Amendment and is invalid on its face . . . By contrast, a majority of the courts have
rejected the idea that an ‘all persons’ warrant could never under any circumstances be
constitutional.” (collecting cases)).
There is nothing about the search warrant that would have facially indicated to either
Soronen or Fluker, neither of whom was involved in procuring it or in the investigation leading
to its issuance, that the warrant was unsupported by probable cause. Nor is there any evidence to
support a determination that a search of Mongham by Fluker or Soronen pursuant to the terms of
the warrant was obviously unreasonable and a violation of federal law. Therefore, the Court
finds that summary judgment is due to be GRANTED to Soronen and Fluker as to Count 3 of
the Amended Complaint.
b. Counts 1 & 2 – Alabama Constitutional Claims
In Counts 1 and 2 of the Amended Complaint, Mongham alleges that Defendants are
liable for violations of his rights under Sections 5 and 6 of Article I of the 1901 Constitution of
Alabama. The Court does not have original jurisdiction over these claims and has determined
that summary judgment is due to be granted to Defendants on Mongham’s federal claim, the only
claim over which the Court does have original jurisdiction. To the extent that the Court has
supplemental jurisdiction over the state law claims, the Court declines to exercise it. See 28
U.S.C. § 1367(c)(3); Mergens v. Dreyfoos, 166 F.3d 1114, 1119 (11th Cir. 1999) (“[T]his Court
has noted that ‘if the federal claims are dismissed prior to trial, Gibbs strongly encourages or
even requires dismissal of state claims.’ ” (quoting L.A. Draper & Son v. Wheelabrator–Frye,
12

Inc., 735 F.2d 414, 428 (11th Cir. 1984) (citing United Mine Workers v. Gibbs, 383 U.S. 715,
726, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966)))). As such, in accordance with 28 U.S.C. §
1447(c), Mongham’s state law claims are due to be REMANDED to state court.
V.

Conclusion
In accordance with the foregoing analysis, it is ORDERED that Defendants’ Motion for

Summary Judgment (Doc. 11) is GRANTED as to Plaintiff Mongham’s federal claim, which is
DISMISSED with prejudice. It is further ORDERED that Mongham’s state law claims are
REMANDED to the Circuit Court of Marengo County, Alabama. In accordance with 28 U.S.C.
§ 1447(c), the Clerk is DIRECTED to send a certified copy of this Order to the clerk of the
Circuit Court of Marengo County.
Judgment in accordance with this Order shall issue by separate document.
DONE and ORDERED this the 26th day of February 2013.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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