Howard et al v. City of Demopolis, Alabama
Filing
34
ORDER granting 19 Motion for Summary Judgment as to all claims against the City of Demopolis, Mayor Grayson, Chief Reese, and the Demopolis Police Department; summary judgment is granted in favor of Sergeant Bryant as to Count Six for assault, Co unt Eight for outrage, and Count Nine for loss of consortium; and denied as to Sergeant Bryant as to Count One for excessive force, Count Three for false arrest, Count Five for negligence, and Count Seven for malicious prosecution.. Signed by Judge Kristi K. DuBose on 11/25/2013. (cmj)
IN
THE
UNITED
STATES
DISTRICT
COURT
FOR
THE
SOUTHERN
DISTRICT
OF
ALABAMA
NORTHERN
DIVISION
LOUIS
HOWARD
and
LEDORA
HOWARD,
)
)
Plaintiffs,
)
)
v.
)
CIVIL
ACTION
NO.
2:12-‐0522-‐KD-‐M
)
CITY
OF
DEMOPOLIS,
ALABAMA,
)
et
al,
)
)
Defendants.
)
ORDER
This
action
is
before
the
Court
on
the
motion
for
summary
judgment,
brief
in
support
and
exhibits,
and
suggested
determinations
of
fact
and
conclusions
of
law
filed
by
defendants
City
of
Demopolis,
Demopolis
Police
Department,
Mayor
J.
Michael
Grayton,
Chief
of
Police
Tommie
J.
Reese,
and
Sergeant
Richard
Bryant
(docs.
19-‐21);
the
response
in
opposition
with
exhibits
and
response
to
defendants’
suggested
determination
of
fact
filed
by
Louis
and
Ledora
Howard
(“the
Howards”)(doc.
23);
and
the
defendants’
reply
(doc.
24).
Upon
consideration,
and
for
the
reasons
set
forth
herein,
the
motion
for
summary
judgment
is
GRANTED
as
to
all
claims
against
the
City
of
Demopolis,
Mayor
Grayson,
Chief
Reese,
and
the
Demopolis
Police
Department;
summary
judgment
is
granted
in
favor
of
Sergeant
Bryant
as
to
Count
Six
for
assault,
Count
Eight
for
outrage,
and
Count
Nine
for
loss
of
consortium;
and
denied
as
to
Sergeant
Bryant
as
to
Count
One
for
excessive
force,
Count
Three
for
false
arrest,
Count
Five
for
negligence,
and
Count
Seven
for
malicious
prosecution.
I.
Procedural
history
The
Howards
filed
their
complaint
against
the
defendants
on
August
8,
2012
(doc.
1-‐
1).
Plaintiff
Louis
Howard
brings
Count
One
pursuant
to
42
U.S.C.
§1983
against
all
defendants
for
violation
of
his
constitutional
rights
under
the
Fourth,
Fifth
and
Fourteenth
Amendments1;
Count
Two
pursuant
to
42
U.S.C.
§
1983
against
the
City
of
Demopolis
for
adopting
policies,
procedures,
practices
or
customs
within
the
Demopolis
Police
Department
that
allow
the
use
of
excessive
force;
Count
Three
pursuant
to
42
U.S.C.
§
1983
against
Sergeant
Bryant
in
his
individual
and
official
capacity
for
false
arrest;
Count
Four
against
the
City
of
Demopolis
and
Chief
Reese
for
negligent
supervision
of
Sergeant
Bryant;
Count
Five
against
Sergeant
Bryant
for
negligence;
Count
Six
against
Sergeant
Bryant
for
assault;
Count
Seven
against
the
defendants
for
malicious
prosecution;
and
Count
Eight
against
the
defendants
for
outrage.
Ledora
Howard
brings
Count
Nine
for
loss
of
consortium.
On
August
21,2012,
defendants
removed
the
action
to
this
Court
and
filed
their
answer.
They
admitted
certain
allegations
such
as
the
location
of
the
incident
alleged
in
the
complaint,
the
Howards’
citizenship,
that
Ms.
Howard
posted
a
bond
for
Mr.
Howard,
that
Mr.
Howard
filed
a
notice
of
claim
for
certain
actions
against
the
City,
and
the
Howards’
marital
status,
but
otherwise
denied
all
allegations.
1
Howard
alleged
that
defendants
deprived
him
of
“a)
the
right
to
be
free
from
unreasonable
searches
and
seizures;
b)
the
right
not
to
be
deprived
of
liberty
without
due
process
of
law;
c)
the
right
not
to
be
deprived
of
property
without
due
process
of
law;
d)
the
right
to
be
free
from
excessive
use
of
force
by
persons
acting
under
color
of
state
law;
e)
the
right
to
be
free
from
false
arrest;
and
the
right
to
just
compensation
for
taking
of
property”.
(Doc.
1-‐1,
Count
One,
p.
5)
2
II.
Findings
of
fact2
Louis
Howard
was
diagnosed
with
paranoid
schizophrenia
in
1982.
He
takes
Thorazine
and
Risperidone
to
control
his
illness.
On
May
25,
2011,
he
and
his
wife
Ledora
were
traveling
home
to
Vicksburg,
Mississippi
after
visiting
family
in
Michigan.
Ms.
Howard
was
driving
and
Mr.
Howard
was
in
the
front
passenger
seat
of
their
van.
After
they
left
Michigan,
Mr.
Howard
had
a
mental
episode
because
he
had
not
been
taking
his
medication.
Ms.
Howard
called
911
for
help.
The
police
and
paramedics
arrived
and
convinced
Mr.
Howard
to
take
his
medication.
After
about
thirty
minutes,
they
were
on
their
way
to
Vicksburg.
They
stopped
to
rest
in
Indiana
and
Ms.
Howard
had
difficulty
convincing
Mr.
Howard
to
get
back
in
the
van.
After
he
did,
she
continued
driving.
When
they
neared
Demopolis,
Alabama,
they
were
detoured
because
of
floodwater.
Mr.
Howard
was
afraid
of
the
rising
water
and
his
mental
state
deteriorated.
While
Ms.
Howard
was
driving,
Mr.
Howard
took
off
his
clothes
and
threw
them
and
other
personal
items
out
the
van
window.
At
about
2:30
a.m.,
Ms.
Howard
called
911
for
help
and
was
told
to
pull
over
until
help
arrived.
Officers
Marcus
Williams,
Ellen
Campbell
and
Kevin
Johnson
from
the
Demopolis
Police
Department
responded
to
the
call.
When
they
arrived
Mr.
Howard
was
seated
in
the
van.
The
officers
called
Sergeant
Bryant
who
was
their
supervisor.
When
he
arrived,
Ms.
2
The
majority
of
the
findings
of
fact
are
taken
from
the
Howards’
statement
of
facts
and
the
Court
has
made
its
findings
by
“review[ing]
the
record,
and
all
its
inferences,
in
the
light
most
favorable
to”
the
Howards
as
the
nonmoving
party.”
Benson
v.
Tocco,
Inc.,
113
F.3d
1203,
1207
(11th
Cir.
1997).
However,
“what
is
considered
to
be
‘facts’
at
the
summary
judgment
stage
may
not
turn
out
to
be
the
actual
facts
if
the
case
goes
to
trial,
but
those
are
the
facts
at
this
stage
of
the
proceeding
for
summary
judgment
purposes.”
Cottrell
v.
Caldwell,
85
F.3d
1480,
1486
(11th
Cir.
1996).
3
Howard
and
the
officers
were
standing
on
the
passenger
side
of
the
van,
watching
Mr.
Howard
who
was
sitting
in
the
front
passenger
seat.
Mr.
Howard
remembers
that
he
was
“sitting
there
quiet”.
(Doc.
23-‐3,
p.
2,
Howard
Deposition)
Sergeant
Bryant
asked
Ms.
Howard
if
she
had
clothes
for
Mr.
Howard.
She
responded
that
she
did,
and
she
and
Officer
Campbell
went
to
the
rear
of
the
van
to
get
the
clothes.
Ms.
Howard
got
a
pair
of
pants
and
shirt.
She
gave
the
clothes
to
Officer
Campbell.
Mr.
Howard
put
on
the
clothes
and
got
back
into
the
van.
At
this
point,
Sergeant
Bryant
was
standing
by
the
front
passenger
door,
Officer
Williams
was
standing
on
the
passenger
side
front
and
Officer
Campbell
was
at
the
rear
of
the
van
with
Ms.
Howard
as
she
“put
things
away”.
Ms.
Howard
then
heard
“tussling
and
words,
talking
words.”
(Doc.
23-‐2,
p.
52,
Ledora
Howard
deposition)
She
looked
up
and
saw
Sergeant
Bryant
“tussling
and
pulling”
Mr.
Howard
through
the
window
of
the
van.
She
stopped
repacking
and
went
to
see
what
was
going
on.
She
saw
Mr.
Howard
on
the
ground
with
Sergeant
Bryant.
She
did
not
see
Sergeant
Bryant
hit
Mr.
Howard,
but
Mr.
Howard’s
lip
was
bleeding.
Ms.
Howard
did
not
hear
any
statements
made
by
Mr.
Howard
to
the
officers.
Mr.
Howard
states
that
Sergeant
Bryant
approached
the
window
and
began
to
talk
to
him
and
in
response,
he
asked
Sergeant
Bryant
where
was
his
wife,
Ms.
Howard.
Sergeant
Bryant
kept
“hammering”
at
Mr.
Howard,
asking
“what
was
his
problem”
and
“kept
rattling
at”
him,
and
in
response,
“every
time
he
asked”
Mr.
Howard
asked
“where
is
my
wife”.
(Doc.
23-‐3,
p.
3,
Louis
Howard
deposition)
At
this
time,
the
door
to
the
van
was
closed
but
the
window
was
all
the
way
down.
Officer
Johnson
was
standing
by
the
passenger
door.
Officer
Williams
was
standing
two
feet
away
from
Sergeant
Bryant
and
4
Mr.
Howard.
Mr.
Howard
states
that
he
had
complied
with
the
officers’
instructions
to
remain
in
his
seat.
Mr.
Howard
states
that
he
did
not
try
to
hit
Officer
Johnson.
Instead,
while
Mr.
Howard
was
sitting
in
the
vehicle,
Sergeant
Bryant
punched
him
twice,
which
knocked
him
out
and
caused
him
to
slump
out
the
window.
When
Mr.
Howard
woke
up
he
was”
kind
of
whaling
his
arms”,
and
Sergeant
Bryant
grabbed
him
and
pulled
him
out
of
the
window
and
onto
the
ground.
(Doc.
23-‐4,
p.
2,
Campbell
deposition)
According
to
Mr.
Howard,
while
he
was
on
the
ground,
Sergeant
Bryant
hit
him
with
his
fist
and
busted
his
lip.
Mr.
Howard
did
not
strike
Sergeant
Bryant.
He
did
not
refuse
to
get
up
off
the
ground,
nor
fight
back,
struggle
or
try
to
resist.3
Officer
Johnson
testified
that
when
he
arrived
Mr.
Howard
was
agitated,
making
irrational
and
vulgar
statements
and
twice
tried
to
come
out
of
the
van
window.
Officer
Johnson
testified
that
Sergeant
Bryant
was
asking
Mr.
Howard
to
calm
down
and
then
Mr.
Howard
came
back
out
of
the
van
window
and
“just
started
swinging”
at
Sergeant
Bryant.
He
testified
that
Mr.
Howard
hit
Sergeant
Bryant
and
then
Bryant
hit
Mr.
Howard
twice
and
pulled
him
out
of
the
van.
(Doc.
20-‐4,
p.
3-‐4)
Officer
Williams
testified
that
when
he
arrived
Mr.
Howard
was
“lashing
out”
verbally,
threatening
his
wife,
threatening
the
officers,
“pointing
and
swinging
his
arms”,
and
acting
“violent
and
belligerent”.
(Doc.
20-‐5,
p.
2-‐3)
Officer
Williams
testified
that
Mr.
3
At
his
deposition,
defense
counsel
asked
Mr.
Howard
–
“Do
you
remember
hitting
a
police
officer?
Do
you
remember
taking
a
swing
at
a
police
officer?
He
answered
“No”.
(Doc.
20-‐
1,
p.
10)
Mr.
Howard
submitted
an
affidavit
wherein
he
states
that
he
did
not
hit,
punch
or
threaten
Sergeant
Bryant
or
any
other
police
officer.
He
explained
that
“[d]uring
the
deposition,
the
attorney
asked
me
if
I
remembered
taking
a
swing
at
a
police
officer.
I
answered
“no’
because
I
did
not
take
a
swing
at
any
police
officer.”
(Doc.
23-‐8)
The
court
does
not
find
the
affidavit
to
be
clearly
inconsistent
with
the
deposition.
5
Howard
threatened
Sergeant
Bryant
who
then
told
him
to
calm
down,
but
Mr.
Howard
“leaped
out
the
window”
and
“slapped”
or
“hit”
Sergeant
Bryant
“open
handed
in
the
face
twice.”
(Id.,
p.
4)
Officer
Campbell
stated
that
Mr.
Howard
became
irate
with
Sergeant
Bryant
while
he
was
questioning
him.
She
stated
that
Mr.
Howard
yelled
and
cursed
at
Sergeant
Bryant,
threatened
to
beat
him
and
tried
to
start
a
fight.
Mr.
Howard
then
came
half
way
out
the
window
and
hit
Sergeant
Bryant
on
the
cheek
on
the
left
side
and
Sergeant
Bryant
hit
Mr.
Howard
two
times
in
the
face.
Mr.
Howard
then
slumped
over
the
vehicle
and
Sergeant
Bryant
pulled
him
out
the
window.
(Doc.
20-‐8)
Sergeant
Bryant
testified
that
when
he
first
arrived
the
officers
were
trying
to
get
Mr.
Howard
to
take
his
medication
and
after
he
took
his
medication,
they
were
“waiting
on
the
medication
to
take
hold”
and
that
Mr.
Howard
was
“irate”.
(Doc.
20-‐3,
p.
4)
He
also
testified
that
Mr.
Howard
was
acting
and
talking
irrationally
and
making
threats
to
the
officers
and
Ms.
Howard.
Sergeant
Bryant
testified
that
Mr.
Howard
came
out
of
the
van
window,
up
to
his
waist,
and
struck
him
twice
before
he
struck
Mr.
Howard
and
knocked
him
out.
(Doc.
20-‐3,
p.
6-‐7,
12)
Sergeant
Bryant
pulled
Mr.
Howard
out
of
the
window,
placed
him
on
the
ground,
and
he
arrested
Mr.
Howard
for
assaulting
an
officer.4
Mr.
Howard
resisted
but
was
handcuffed
by
Sergeant
Bryant
with
the
assistance
of
Officer
Williams,
placed
in
leg
restraints
by
Sergeant
Bryant,
put
in
the
patrol
car,
and
taken
to
the
jail
by
Officer
Williams.
(Doc.
20-‐3,
p.
7,
12,
Bryant
Deposition;
Doc.
20-‐5,
p.
8,
Williams
deposition)
Officer
Williams
testified
that
it
took
four
officers
to
place
Mr.
Howard
in
the
jail
cell
because
of
his
resistance.
(Doc.
20-‐5,
p.
8,
Williams
deposition)
4
The
charge
was
later
reduced
to
harassment.
6
III.
Conclusions
of
law
A.
Summary
judgment
should
be
granted
“if
the
movant
shows
that
there
is
no
genuine
Summary
judgment
standard
dispute
as
to
any
material
fact
and
the
movant
is
entitled
to
judgment
as
a
matter
of
law.”
Fed.
R.
Civ.
P.
56(a).
If
a
party
asserts
“that
a
fact
cannot
be
or
is
genuinely
disputed”,
the
party
must
(A)
cit[e]
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)
show[]
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.
Fed.
R.
Civ.
P.
56(c)(1)(A)(B).
Defendants,
as
the
party
seeking
summary
judgment
bear
“the
initial
burden
to
show
the
district
court,
by
reference
to
materials
on
file,
that
there
are
no
genuine
issues
of
material
fact
that
should
be
decided
at
trial.”
Clark
v.
Coats
&
Clark,
Inc.,
929
F.2d
604,
608
(11th
Cir.
1991).
The
party
seeking
summary
judgment
“always
bears
the
initial
responsibility
of
informing
the
district
court
of
the
basis
for
its
motion,
and
identifying
those
portions
of
‘the
pleadings,
depositions,
answers
to
interrogatories,
and
admissions
on
file,
together
with
the
affidavits,
if
any,’
which
it
believes
demonstrate
the
absence
of
a
genuine
issue
of
material
fact.”
Clark,
929
F.2d
at
608
(quoting
Celotex
Corp.
v.
Catrett,
477
U.S.
317,
323,
106
S.
Ct.
2548,
2553
(1986)).
Once
defendants
have
satisfied
their
responsibility,
the
burden
shifts
to
plaintiffs
as
the
non-‐movant,
to
show
the
existence
of
a
genuine
issue
of
material
fact.
Id.
“In
reviewing
7
whether
the
nonmoving
party
has
met
its
burden,
the
court
must
stop
short
of
weighing
the
evidence
and
making
credibility
determination
of
the
truth
of
the
matter.
Instead,
the
evidence
of
the
non-‐movant
is
to
be
believed,
and
all
justifiable
inferences
are
to
be
drawn
in
his
favor.”
Tipton
v.
Bergrohr
GMBH-‐Siegen,
965
F.2d
994,
999
(11th
Cir.
1992)
(citing
Anderson
v.
Liberty
Lobby,
477
U.S.
242,
255,
106
S.
Ct.
2505
(1986));
Adickes
v.
S.H.
Kress
&
Co.,
398
U.S.
144,
158-‐159,
90
S.
Ct.
1598,
1608-‐1609
(1970);
see
Feliciano
v.
City
of
Miami
Beach,
707
F.3d
1244,
1252
(11th
Cir.2013)
(“Even
if
a
district
court
believes
that
the
evidence
presented
by
one
side
is
of
doubtful
veracity,
it
is
not
proper
to
grant
summary
judgment
on
the
basis
of
credibility
choices.”).
However,
“[a]
moving
party
is
entitled
to
summary
judgment
if
the
nonmoving
party
has
‘failed
to
make
a
sufficient
showing
on
an
essential
element
of
her
case
with
respect
to
which
she
has
the
burden
of
proof.’”
In
re
Walker,
48
F.
3d
1161,
1163
(11th
Cir.
1995)
(quoting
Celotex
Corp.,
477
U.S.
at
323,
106
S.
Ct.
at
2552).
Additionally,
the
mere
existence
of
any
factual
dispute
will
not
automatically
necessitate
denial
of
a
motion
for
summary
judgment;
rather,
only
factual
disputes
that
are
material
preclude
entry
of
summary
judgment.
Lofton
v.
Secretary
of
Dept.
of
Children
and
Family
Services,
358
F.3d
804,
809
(11th
Cir.
2004).
“An
issue
of
fact
is
material
if
it
is
a
legal
element
of
the
claim
under
the
applicable
substantive
law
which
might
affect
the
outcome
of
the
case.
It
is
genuine
if
the
record
taken
as
a
whole
could
lead
a
rational
trier
of
fact
to
find
for
the
nonmoving
party.”
Reeves
v.
C.H.
Robinson
Worldwide,
Inc.,
594
F.3d
798,
807
(11th
Cir.
2010)
(citation
omitted).
Overall,
the
court
must
“resolve
all
issues
of
material
fact
in
favor
of
the
[non-‐
movant],
and
then
determine
the
legal
question
of
whether
the
[movant]
is
entitled
to
judgment
as
a
matter
of
law
under
that
version
of
the
facts.”
McDowell
v.
Brown,
392
F.3d
8
1283,
1288
(11th
Cir.
2004)
(citing
Durruthy
v.
Pastor,
351
F.3d
1080,
1084
(11th
Cir.
2003)).
B.
Analysis
1.
The
Howards’
claims
against
the
Demopolis
Police
Department.
Defendants
argue
that
the
Demopolis
Police
Department
is
not
a
proper
defendant
because
it
is
not
a
separate
legal
entity
capable
of
being
sued.
The
Howards
did
not
respond
to
this
argument.
Thus,
the
Court
concludes
that
they
have
abandoned
their
claims
against
the
Demopolis
Police
Department.
Edmondson
v.
Bd.
of
Trustees
of
Univ.
of
Ala.,
258
Fed.
Appx.
250,
253
(11th
Cir.
2007)
(“In
opposing
a
motion
for
summary
judgment,
a
party
may
not
rely
on
her
pleadings
to
avoid
judgment
against
her.
There
is
no
burden
upon
the
district
court
to
distill
every
potential
argument
that
could
be
made
based
upon
the
materials
before
it
on
summary
judgment.
Rather,
the
onus
is
upon
the
parties
to
formulate
arguments;
grounds
alleged
in
the
complaint
but
not
relied
upon
in
summary
judgment
are
deemed
abandoned.”)
(citing
Resolution
Trust
Corp.
v.
Dunmar
Corp.,
43
F.3d
587,
599
(11th
Cir.1995));
Floyd
v.
Home
Depot
USA,
274
Fed.
Appx.
763,
765
(11th
Cir.
2008)
(finding
that
the
district
court
properly
determined
that
Floyd
had
abandoned
his
ADA
retaliation
termination
claim
because
he
did
not
respond
to
Home
Depot's
argument
on
that
claim)
(citing
Resolution
Trust
Corp.,
43
F.3d
at
599).
Moreover,
in
Dean
v.
Barber,
the
Eleventh
Circuit
Court
of
Appeals
explained
that
“Sheriff's
departments
and
police
departments
are
not
usually
considered
legal
entities
subject
to
suit”
.
.
.
but
“capacity
to
sue
or
be
sued
shall
be
determined
by
the
law
of
the
state
in
which
the
district
court
is
held.”
951
F.2d
1210,
1214
(11th
Cir.1992),
(quoting
Fed.R.Civ.P.
17(b)).
In
that
regard,
this
Court
has
previously
determined
that
police
9
departments
are
not
a
proper
legal
entity
capable
of
being
sued.
Blunt
v.
Tomlinson,
2009
WL
921093,
*4
-‐5
(S.D.
Ala.
Apr.
1,
2009)
(“In
Alabama,
a
city's
police
department
is
not
a
suable
entity
or
a
proper
party
under
state
law
or
for
§
1983
purposes.”)
(citing
Hawkins
v.
City
of
Greenville,
101
F.Supp.2d
1356,
1363
(M.D.Ala.
2000);
accord
Lee
v.
Wood,
2007
WL
2460756,
at
*7
(S.D.Ala.
Aug.27,
2007)
(finding
that
the
City
of
Mobile
Police
Department
is
not
a
suable
entity
under
state
law);
Pierre
v.
Schlemmer,
932
F.Supp.
278,
279–80
(M.D.Fla.1996)
(finding
the
Eleventh
Circuit
adheres
to
the
approach
that
a
city
police
department
is
not
a
separate
legal
entity
which
is
subject
to
suit
and
is
not
a
“person”
for
§
1983
purposes);
Eddy
v.
Miami,
715
F.Supp.
1553,
1556
(S.D.Fla.1989)
(“Where
a
police
department
is
an
integral
part
of
the
city
government
as
the
vehicle
through
which
the
city
government
fulfills
its
policing
functions,
it
is
not
an
entity
subject
to
suit.”);
Reese
v.
Chicago
Police
Dept.,
602
F.Supp.
441,
443
(N.D.Ill.1984)
(finding
a
police
department
does
not
have
a
legal
existence
separate
from
the
city
and,
therefore,
is
not
a
suable
entity).”);
Cheatham
v.
City
of
Tallassee,
2012
WL
3890127,
*6
(M.D.
Ala.
Sept.
7,
2012)
(finding
that
the
Tallassee
Police
Department
was
due
summary
judgment
as
to
all
claims
brought
against
it).
Accordingly,
the
Howards’
claims
against
the
Demopolis
Police
Department
are
dismissed.
2.
The
Howards’
claims
against
Mayor
Grayson
in
his
official
or
individual
capacity.
Defendants
argue
that
there
are
no
factual
allegations
or
legal
claims
against
Mayor
Grayson
but
instead
his
name
only
appears
in
the
style
of
the
case.
They
specifically
point
out
that
the
Howards
did
not
allege
that
Mayor
Grayson
supervised
or
trained
Sergeant
Bryant
or
developed
any
policies
for
the
Demopolis
Police
Department.
The
Howards
did
not
respond
to
this
argument.
Thus,
the
Court
concludes
that
they
have
abandoned
any
10
claims
against
Mayor
Grayson.
Edmondson,
258
Fed.
Appx.
at
253
(“grounds
alleged
in
the
complaint
but
not
relied
upon
in
summary
judgment
are
deemed
abandoned”);
Floyd,
274
Fed.
Appx.
at
765;
Resolution
Trust
Corp.,
43
F.3d
at
599
(“[T]he
onus
is
upon
the
parties
to
formulate
arguments;
grounds
alleged
in
the
complaint
but
not
relied
upon
in
summary
judgment
are
deemed
abandoned”);
Fils
v.
City
of
Aventura,
647
F.3d
1272,
1284
(11th
Cir.
2011)
(the
“district
courts
cannot
concoct
or
resurrect
arguments
neither
made
nor
advanced
by
the
parties.”);
Case
v.
Eslinger,
555
F.3d
1317,
1329
(11th
Cir.
2009)
(a
party
“cannot
readily
complain
about
the
entry
of
a
summary
judgment
order
that
did
not
consider
an
argument
[they]
chose
not
to
develop
for
the
district
court
at
the
time
of
the
summary
judgment
motions”)
(citation
omitted).
Additionally,
any
claims
against
Mayor
Grayson
in
his
official
capacity
are
essentially
claims
against
the
City
of
Demopolis,
which
has
been
sued
directly.
Kentucky
v.
Graham,
473
U.S.
159,
165–166,
167
n.14
(1985)
(“As
long
as
the
government
entity
receives
notice
and
an
opportunity
to
respond,
an
official-‐capacity
suit
is,
in
all
respects
other
than
name,
to
be
treated
as
a
suit
against
the
entity.
.
.
.
It
is
not
a
suit
against
the
official
personally,
for
the
real
party
in
interest
is
the
entity.”
.
.
.
“[T]here
is
no
longer
a
need
to
bring
official-‐
capacity
actions
against
local
government
officials
for
...
local
government
units
can
be
sued
directly
for
damages
and
injunctive
and
declaratory
relief”)
(italics
in
original)
(internal
citations
omitted).
Accordingly,
summary
judgment
is
granted
in
favor
of
Mayor
Grayson
and
the
Howards’
claims
against
him
in
his
individual
and
official
capacity
are
dismissed.
3.
The
Howards’
claims
against
Chief
Reese
in
his
official
capacity.
In
the
complaint,
the
Howards
allege
generally
that
Chief
Reese
“in
his
capacity
as
Chief
of
Police,
.
.
.
is
responsible
for
making
and/or
implementing
policies
and
practices
11
used
by
law
enforcement
officers
employed
by
the
City
regarding
arrests
and
the
use
of
force.”
(Doc.
1-‐1,
p.
3)
Defendants
argue
that
any
claims
against
Chief
Reese
in
his
official
capacity
should
be
dismissed
because
the
City
of
Demopolis
is
named
as
a
defendant.
The
Howards
did
not
respond
to
this
argument.
Thus,
the
Court
concludes
that
the
Howards
have
abandoned
their
claims
against
Chief
Reese
in
his
official
capacity.
Edmondson,
258
Fed.
Appx.
at
253
(“grounds
alleged
in
the
complaint
but
not
relied
upon
in
summary
judgment
are
deemed
abandoned”);
Floyd,
274
Fed.
Appx.
at
765;
Resolution
Trust
Corp.,
43
F.3d
at
599;
Fils,
647
F.3d
at
1284;
Case,
555
F.3d
at
1329.
Moreover,
the
claims
against
Chief
Reese
in
his
official
capacity
are
essentially
claims
against
the
City
of
Demopolis,
which
has
been
sued
directly.
Kentucky
v.
Graham,
473
U.S.
at
165–166,
167
n.14.
Accordingly,
summary
judgment
is
granted
in
favor
of
Chief
Reese
in
his
official
capacity
and
the
Howards’
claims
against
him
in
his
official
capacity
are
dismissed.
4.
The
Howards’
claims
of
constitutional
violations
(42
U.S.C.
§
1983,
Count
One)
In
Count
One,
the
Howards
alleged
that
the
“defendants”
violated
their
constitutional
rights
under
the
Fourth,
Fifth
and
Fourteenth
Amendment
including
but
not
limited
to
“a)
the
right
to
be
free
from
unreasonable
searches
and
seizures;
b)
the
right
not
to
be
deprived
of
liberty
without
due
process
of
law;
c)
the
right
not
to
be
deprived
of
property
without
due
process
of
law;
d)
the
right
to
be
free
from
excessive
use
of
force
by
persons
acting
under
color
of
state
law;
e)
the
right
to
be
free
from
false
arrest;
and
the
right
to
just
compensation
for
taking
of
property”
(doc.
1-‐1,
Count
One,
p.
5).
In
support,
the
Howards
re-‐alleged
and
incorporated
by
reference
all
of
the
factual
allegations
set
forth
in
pages
1
through
8
of
their
complaint,
but
without
specifying
which
factual
allegations
support
which
constitutional
violation
except
to
state
that
defendants
“conducted
an
12
unauthorized
and
warrantless
search
and
seizure
of”
Mr.
Howard,
and
“used
excessive
force
in
violation
of”
Mr.
Howard’s
rights.
On
motion
for
summary
judgment,
defendants
argue
that
substantive
due
process
is
not
implicated
since
excessive
force
claims,
unreasonable
search
and
seizure
claims,
and
false
arrest
claims
are
analyzed
under
the
Fourth
Amendment
and
not
under
a
substantive
due
process
standard.
They
also
argue
that
there
was
an
adequate
post-‐deprivation
remedy
such
that
procedural
due
process
violations
were
not
implicated.
Defendants
point
out
that
since
they
are
unaware
of
any
property
taken
from
the
Howards,
the
Fifth
Amendment’s
“takings
clause”
is
not
applicable
to
the
facts
in
this
case.
The
Howards
did
not
respond
to
the
defendants’
argument
except
to
argue
that
certain
rights
under
the
Fourth
Amendments
have
been
violated
by
the
defendants.5
Thus,
the
Court
concludes
that
they
have
abandoned
any
claims
pursuant
to
the
Fifth
Amendment.
Edmondson,
258
Fed.
Appx.
at
253;
Floyd,
274
Fed.
Appx.
at
765;
Resolution
Trust
Corp.,
43
F.3d
at
599;
Fils,
647
F.3d
at
1284;
Case,
555
F.3d
at
1329.
Accordingly,
5
Specifically,
the
right
to
be
free
from
unreasonable
searches
and
seizures,
excessive
use
of
force,
and
false
arrest;
all
of
which
are
analyzed
under
the
Fourth
Amendment.
Graham
v.
Connor,
490
U.S.
386,
395,
109
S.Ct.
1865,
1871,
104
L.Ed.2d
443
(1989)
(holding
that
“all
claims
that
law
enforcement
officers
have
used
excessive
force
–
deadly
or
not
–
in
the
course
of
an
arrest,
investigatory
stop,
or
other
‘seizure’
of
a
free
citizen
should
be
analyzed
under
the
Fourth
Amendment
and
its
‘reasonableness’
standard,
rather
than
under
a
‘substantive
due
process’
approach.”)
(italics
in
original);
Brown
v.
City
of
Huntsville,
608
F.3d
724,
737
(11th
Cir.2010)
(“The
Fourth
Amendment's
[right
to]
freedom
from
unreasonable
searches
and
seizures
encompasses
the
plain
right
to
be
free
from
the
use
of
excessive
force
in
the
course
of
an
arrest.”);
Davis
v.
Williams,
451
F.3d
759,
764
n.
8
(11th
Cir.
2006)
(“.
.
.
it
is
clearly
established
that
an
arrest
made
without
probable
cause
violates
the
Fourth
Amendment.”);
Hamm
v.
Powell,
893
F.2d
293,
294
(11th
Cir.1990)
(acknowledging
that
wrongful
arrest
and
use
of
excessive
force
claims
under
§
1983
are
analyzed
under
the
Fourth
Amendment
).
Moreover,
the
Fourth
Amendment
has
been
made
applicable
to
the
States
through
the
Fourteenth
Amendment.
See
Brescher
v.
Von
Stein,
904
F.
2d
572,
578
(11th
Cir.
1990).
13
summary
judgment
is
granted
in
favor
of
defendants
as
to
any
claims
for
constitutional
violations
under
the
Fifth
Amendment,
and
those
claims,
if
any,
are
dismissed.
5.
The
Howards’
claim
of
excessive
force
against
Sergeant
Bryant
In
Count
One,
the
Howards
allege
that
Mr.
Howard’s
constitutional
right
under
the
Fourth
Amendment
to
be
free
from
excessive
force
has
been
violated
because
Sergeant
Bryant
struck
him
twice
in
the
face,
pulled
him
out
of
the
van
window,
hit
him
again
while
he
was
on
the
ground,
and
then
restrained
him.
Mr.
Howard’s
claim
of
excessive
force
occurring
during
his
arrest
is
construed
as
arising
under
the
Fourth
Amendment.6
See
Hadley
v.
Gutierrez,
526
F.3d
1324,
1329
(11th
Cir.2008)
(“In
an
excessive
force
case
arising
out
of
an
arrest,
whether
a
constitutional
violation
occurred
is
governed
by
the
Fourth
Amendment's
‘objective
reasonableness'
standard.”)
(quoting
Brosseau
v.
Haugen,
543
U.S.
194,
197,
125
S.Ct.
596
(2004))).
In
that
regard,
the
Court
must
consider
certain
factors
“in
determining
whether
an
officer's
use
of
force
was
objectively
reasonable,
including
‘(1)
the
need
for
the
application
of
force,
(2)
the
relationship
between
the
need
and
the
amount
of
force
used,
(3)
the
extent
of
the
injury
inflicted
and,
(4)
whether
the
6
The
Eleventh
Circuit
has
held
that
“a
claim
that
any
force
in
an
illegal
stop
or
arrest
is
excessive
is
subsumed
in
the
illegal
stop
or
arrest
claim
and
is
not
a
discrete
excessive
force
claim.”
Lee
v.
Ferraro,
284
F.3d
1188,
1193
(11th
Cir.2002)
(quoting
Jackson
v.
Sauls,
206
F.3d
1156,
1171
(11th
Cir.2000)
(in
turn
citing
Williamson
v.
Mills,
65
F.3d
155,
158–59
(11th
Cir.1995))).
The
Howards’
complaint
contains
a
claim
of
false
arrest
against
Sergeant
Bryant.
Thus,
arguably
their
excessive
force
claim
is
“subsumed”
in
that
claim.
However,
in
the
response,
the
Howards
assume
for
purpose
of
argument
that
if
Mr.
Howard
did
hit
Sergeant
Bryant
and
that
Sergeant
Bryant
knocked
Mr.
Howard
unconscious,
then
“any
further
force
to
subdue
him
was
unnecessary.”
(Doc.
23,
p.
14)
Therefore,
the
claims
of
excessive
force
and
false
arrest
are
analyzed
separately.
See
Rigas
v.
City
of
Rogersville,
Ala.,
2013
WL
5229998
(N.D.
Ala.
Sept.
17,
2013)
(slip
copy)
(stating
that
because
Rigas
did
“not
allege
excessive
force
during
the
commission
of
a
legal
arrest,
even
as
an
alternative
basis
for
recovery,
any
claim
for
excessive
force
is
subsumed
under
[his]
false
arrest
claims”)
(italics
in
original).
14
force
was
applied
in
good
faith
or
maliciously
and
sadistically.’
“
Hadley,
526
F.3d
at
1329
(quoting
Slicker
v.
Jackson,
215
F.3d
1225,
1233
(11th
Cir.
2000)).
Defendants
argue
that
there
is
no
dispute
of
fact
that
Mr.
Howard
struck
Sergeant
Bryant
and
that
the
amount
of
force
applied
during
the
arrest
was
not
excessive.
Alternatively,
they
argue
that
if
the
amount
of
force
applied
was
found
to
be
excessive,
Sergeant
Bryant
is
still
entitled
to
qualified
immunity.
Defendants
argue
that
the
testimony
of
the
four
police
officers
is
un-‐contradicted
evidence
that
Mr.
Howard
struck
Sergeant
Bryant,
despite
Mr.
Howard’s
statements
to
the
contrary.
However,
the
Court
finds
that
there
is
a
material
issue
of
fact
as
to
whether
Mr.
Howard
struck
Sergeant
Bryant
and
whether
the
use
of
this
force
was
excessive.
Defendants
argue
that
there
is
no
evidence
in
Mr.
Howards’
favor
because
he
cannot
remember
whether
he
struck
Sergeant
Bryant
and
because
his
post-‐deposition
affidavit
contradicts
his
deposition
testimony.
The
Court
disagrees
and
finds
that
the
affidavit
does
not
contradict
the
deposition.
Mr.
Howard’s
statements
that
he
did
not
strike
Sergeant
Bryant
are
based
on
his
“first-‐hand
personal
knowledge,
not
[his]
subjective
beliefs”
and
“they
directly
contradict
the
officers’
assertions”.
Feliciano
v.
City
of
Miami
Beach,
707
F.
3d
1244,
1253
(11th
Cir.
2013)
(“The
contradiction
presents
a
classic
swearing
match,
which
is
the
stuff
of
which
jury
trials
are
made.”)
“When
considering
a
motion
for
summary
judgment,
including
one
asserting
qualified
immunity,
courts
must
construe
the
facts
and
draw
all
inferences
in
the
light
most
favorable
to
the
nonmoving
party
and
when
conflicts
arise
between
the
facts
evidenced
by
the
parties,
[they
must]
credit
the
nonmoving
party's
version.
Even
if
a
district
court
15
believes
that
the
evidence
presented
by
one
side
is
of
doubtful
veracity,7
it
is
not
proper
to
grant
summary
judgment
on
the
basis
of
credibility
choices.”
Feliciano,
707
F.
3d
at
1252
(citations
omitted)
(internal
quotations
omitted).
“This
is
because
credibility
determinations
and
the
weighing
of
evidence
‘are
jury
functions,
not
those
of
a
judge.’”
Id.
(citing
Anderson
v.
Liberty
Lobby,
Inc.,
477
U.S.
242,
255,
106
S.Ct.
2505,
2513
(1986)).
A
determination
as
to
whether
Mr.
Howard
struck
Sergeant
Bryant
is
material
to
whether
Sergeant
Bryant
needed
to
apply
the
force
used
to
arrest
Mr.
Howard
and
to
whether
the
force
was
applied
in
good
faith
or
maliciously
or
sadistically.
Moreover,
the
prohibition
against
excessive
force
is
clearly
established
such
that
Sergeant
Bryant
could
not
claim
immunity
if
he
engaged
in
the
alleged
behavior.
Accordingly,
summary
judgment
is
denied
as
to
Mr.
Howard’s
claim
of
excessive
force
against
Sergeant
Bryant.
6.
The
Howards’
claims
pursuant
to
42
U.S.C.
§
1983
against
the
City
of
Demopolis
(Use
of
Excessive
Force,
Count
Two)
The
City
may
be
a
defendant
under
Section
1983.
Title
42
United
States
Code,
Section
1983
sets
forth
as
follows:
Every
person
who,
under
color
of
any
statute,
ordinance,
regulation,
custom,
or
usage,
of
any
State
or
Territory
or
the
District
of
Columbia,
subjects,
or
causes
to
be
subjected,
any
citizen
of
the
United
States
or
other
person
within
the
jurisdiction
thereof
to
the
deprivation
of
any
rights,
privileges,
or
immunities
secured
by
the
Constitution
and
laws,
shall
be
liable
to
the
party
7
“As
a
general
principle,
a
plaintiff's
testimony
cannot
be
discounted
on
summary
judgment
unless
it
is
blatantly
contradicted
by
the
record,
blatantly
inconsistent,
or
incredible
as
a
matter
of
law,
meaning
that
it
relates
to
facts
that
could
not
have
possibly
been
observed
or
events
that
are
contrary
to
the
laws
of
nature.”
Feliciano,
707
F.
3d
at
1253-‐1254
(citing
Scott
v.
Harris,
550
U.S.
372,
380–81,
127
S.Ct.
1769,
1776,
167
L.Ed.2d
686
(2007)
(holding
that
a
court
should
not
adopt
a
party's
version
of
the
facts
when
it
is
“blatantly
contradicted
by
the
record”
in
the
form
of
videotaped
evidence)).
16
injured
in
an
action
at
law,
suit
in
equity,
or
other
proper
proceeding
for
redress
.
.
.
42
U.S.C.
§
1983.
Local
governments,
such
as
the
City
of
Demopolis,
are
considered
“persons”
for
the
purposes
of
the
statute
and
may
be
subject
to
liability.
Monell
v.
Dept.
of
Soc.
Servs.,
436
U.S.
658,
690,
98
S.
C.t
2018
(1978);
McDowell
v.
Brown,
392
F.3d
1283,
1289
(11th
Cir.
2004).
The
Howards
allege
that
the
City
adopted
policies,
procedures,
practices
or
customs
within
the
Demopolis
Police
Department
that
allow
the
use
of
excessive
force
and
that
the
City’s
actions
“amount
to
deliberate
indifference”
to
Mr.
Howard’s
constitutional
right
to
be
free
from
excessive
force.8
On
motion
for
summary
judgment,
the
defendants
argue
that
the
Howards
cannot
show
that
the
City
has
an
unconstitutional
policy,
which
can
be
attributed
to
a
municipal
policymaker
or
inadequate
police
training.
The
defendants
point
out
that
the
Police
Department’s
Standard
Operating
Procedure
(SOP)
includes
Use
of
Force
policies
and
procedures
and
that
Sergeant
Bryant
had
been
trained
on
the
Use
of
Force
and
had
been
trained
in
regard
to
addressing
the
mentally
ill.
The
Howards
“cannot
rely
upon
the
theory
of
respondeat
superior
to
hold
the
C[ity]
liable”
for
Sergeant
Bryant’s
actions.
McDowell,
392
F.
3d
at
1289.
Instead,
the
Howards
must
“prove
that
[the
City]
had
a
‘policy
or
custom’
of
deliberate
indifference
that
led
to
the
violation
of
[Mr.
Howard’s]
constitutional
right.”
Craig
v.
Floyd
County,
Ga.,
643
F.3d
1306,
8
Embedded
in
Count
Two
is
the
allegation
that
Mr.
Howard’s
right
to
be
free
of
unreasonable
seizure
was
violated.
However,
in
the
response
to
the
motion
for
summary
judgment,
the
Howards
addressed
only
the
City’s
liability
for
his
alleged
use
of
excessive
force.
Therefore,
the
Court
concludes
that
the
Howards
have
abandoned
any
claim
against
the
City
for
liability
for
Sergeant
Bryant’s
alleged
unreasonable
seizure.
Edmondson,
258
Fed.
Appx.
at
253;
Floyd,
274
Fed.
Appx.
at
765;
Resolution
Trust
Corp.,
43
F.3d
at
599;
Fils,
647
F.3d
at
1284;
Case,
555
F.3d
at
1329.
17
1310
(11th
Cir.
2011)
(quoting
Monell,
436
U.S.
at
694,
98
S.
Ct.
2037-‐2038).
To
do
so,
they
must
show
“a
direct
causal
link
between
a
municipal
policy
or
custom
and
the
alleged
constitutional
deprivation.”
Snow
ex
rel.
Snow
v.
City
of
Citronelle,
AL,
420
F.3d
1262,
1271
(11th
Cir.2005)
(quoting
City
of
Canton
v.
Harris,
489
U.S.
378,
385,
109
S.Ct.
1197
(1989)).
To
do
so,
Mr.
Howard
must
show:
“(1)
that
his
constitutional
rights
were
violated;
(2)
that
the
municipality
had
a
custom
or
policy
that
constituted
deliberate
indifference
to
that
constitutional
right;
and
(3)
that
the
policy
or
custom
caused
the
violation.”
McDowell,
392
F.3d
at
1289
(citing
Canton,
489
U.S.
at
388).
Since
municipalities
generally
do
not
have
official
policies
that
endorse
a
constitutional
violation,
the
Howards
must
show
that
the
City
had
a
custom
or
practice
of
permitting
the
alleged
violations.
Craig,
643
F.3d
at
1310
(quoting
Grech
v.
Clayton
County,
Ga.,
335
F.3d
1326,
1329
(11th
Cir.
2003)
(en
banc)).
Moreover,
the
policy,
custom,
or
practice
must
be
the
“moving
force”
behind
the
constitutional
violation
and
not
just
“tangentially
related
to
a
constitutional
deprivation.”
Cuesta
v.
Sch.
Bd.
of
Miami–Dade
Co.,
285
F.3d
962,
967
(11th
Cir.
2002).
The
Howards
argue
that
the
SOP
did
not
contain
written
procedures
for
the
use
of
force
when
interacting
with
the
mentally
ill,
but
instead
contained
only
generic
instructions
for
use
of
force.
They
argue
that
because
of
this
inadequacy,
the
City
failed
to
establish
policies
or
procedures
to
prevent
Fourth
Amendment
violations
for
use
of
excessive
force
when
dealing
with
the
mentally
ill,
and
therefore,
is
liable
to
Mr.
Howard.
The
Howards
appear
to
assert
that
the
absence
of
a
written
policy
specifically
addressing
the
mentally
ill,
shows
a
custom
or
practice
of
deliberate
indifference
to
his
constitutional
rights,
which
resulted
in
Sergeant
Bryant’s
use
of
excessive
force.
18
Assuming
for
purposes
of
summary
judgment
that
Mr.
Howard’s
constitutional
rights
were
violated,
“[p]roof
of
a
single
incident
of
unconstitutional
activity
is
not
sufficient
to
impose
liability
against”
the
City.
Craig,
643
F.3d
at
1310
(quoting
City
of
Okla.
City
v.
Tuttle,
471
U.S.
808,
823–24,
105
S.
Ct.
2427,
2436
(1985)
(plurality
opinion))
(internal
quotations
omitted).
The
Howards
would
need
to
show
a
“pattern
of
similar
constitutional
violations[.]”
Craig,
643
F.3d
at
1310.
“A
single
incident
would
not
be
so
pervasive
as
to
be
a
custom,
.
.
.
because
a
custom
must
be
such
a
longstanding
and
widespread
practice
[that
it]
is
deemed
authorized
by
the
policymaking
officials
because
they
must
have
known
about
it
but
failed
to
stop
it[.]”
Id.,
citing
Grech,
335
F.3d
at
1330
n.6,
and
Brown
v.
City
of
Fort
Lauderdale,
923
F.2d
1474,
1481
(11th
Cir.
1991))
(internal
citations
and
quotations
omitted).
The
Howards
have
presented
no
evidence
that
the
police
officers
for
the
City
of
Demopolis
have
used
excessive
force
against
other
mentally
ill
persons.
Moreover,
the
Howards
present
no
evidence
that
the
absence
of
a
written
policy
regarding
use
of
force
when
interacting
with
the
mentally
ill,
was
the
“moving
force”
behind
Sergeant
Bryant’s
actions.
Since
the
Howards
have
not
shown
a
series
of
“constitutional
violations
from
which
deliberate
indifference
can
be
inferred”
they
“must
show
that
the
policy
itself
is
unconstitutional.”
Craig,
643
F.3d
at
1311
(citing
Estate
of
Novack
ex
rel.
Turbin
v.
Cnty.
of
Wood,
226
F.3d
525,
531
(7th
Cir.2000)).
In
that
regard
they
appear
to
rely
on
the
decision
in
Rivas
v.
Freeman,
940
F.
2d
1491,
1495
(11th
Cir.
1991)
for
the
premise
that
if
a
final
policymaker,
such
as
the
City,
“fails
to
establish
policies
and
procedures
to
prevent
constitutional
intrusions
by
police
officer
under
[its]
command,
‘liability
may
be
imposed
due
to
the
existence
of
an
improper
policy
or
the
absence
of
a
policy.’”
From
this,
the
19
Howards
appear
to
reason
that
the
City’s
SOP
is
unconstitutional
because
it
does
not
have
a
written
policy
for
addressing
use
of
excessive
force
when
interacting
with
the
mentally
ill,
i.e.,
the
”absence
of
a
policy”.
However,
the
Howards
did
not
present
any
case
law
wherein
a
city’s
police
procedures
have
been
held
unconstitutional
because
there
were
no
specifically
delineated
procedures
for
use
of
force
when
interacting
with
the
mentally
ill.
The
Court
declines
to
make
the
Howards’
constitutional
argument
for
them.
See
Case,
555
F.3d
at
1329
(11th
Cir.
2009)
(a
litigant
“cannot
readily
complain
about
the
entry
of
a
summary
judgment
order
that
did
not
consider
an
argument
they
chose
not
to
develop
for
the
district
court
at
the
time
of
the
summary
judgment
motions”)
(citation
omitted).
Additionally,
in
Rivas,
the
sheriff
was
found
liable
for
wrongful
arrest
and
incarceration
resulting
from
mistaken
identity
where
similar
arrests
had
previously
occurred
but
the
sheriff
had
no
procedures
or
written
policy
to
monitor
or
account
for
inmates
in
the
jail.
Again,
the
Howards
present
no
evidence
that
Sergeant
Bryant
or
any
officer
with
the
Demopolis
Police
Department
had
had
a
similar
altercation
with
a
mentally
ill
person
such
that
the
City
would
have
been
aware
of
this
alleged
inadequacy
of
its
SOP,
and
acted
with
deliberate
indifference.
9
9
The
undisputed
evidence
shows
that
the
City
trained
its
officers
regarding
interaction
with
the
mentally
ill.
The
Howards
admit
as
much
in
their
statement
of
facts:
The
“Demopolis
Police
Department
had
mandatory
in-‐service
training
in
community
policing
and
the
mentally
ill.
The
goal
of
the
training
provided
to
the
Demopolis
Police
Department
was
to
help
police
officers
to
know
the
signs
and
symptoms
exhibited
by
persons
with
mental
illness
so
that
they
would
know
how
to
deal
effectively
with
them.
The
training
emphasized
that
there
are
some
circumstances
when
an
officer
should
stop
talking,
step
back
and
try
to
defuse
a
crisis
situation
when
it
involves
a
person
with
mental
illness.
The
training
taught
the
officers
to
be
sensitive
to
the
fact
that
a
person
has
a
mental
illness.
The
training
taught
the
officers
to
stay
a
reasonable
distance
from
the
mentally
ill
person
to
avoid
being
struck.
The
training
also
taught
officers
to
avoid
any
aggressive
moves
toward
the
mentally
ill
person.
‘You
are
to
treat
him
just
like
he
was
normal
and
try
not
to
insult
20
At
the
summary
judgment
stage,
the
Howards
must
“set
forth
specific
facts
supported
by
the
requisite
evidence
to
establish
the
existence
of
an
element
essential
to
[their]
case
and
on
which
they
will
bear
the
burden
of
proof
at
trial.”
Celotex,
477
U.S.
at
322;
see
Holifield
v.
Reno,
115
F.3d
1555,
1564
n.
6
(11th
Cir.1997)
(“Holifield's
conclusory
assertions
to
the
contrary,
in
the
absence
of
supporting
evidence,
are
insufficient
to
withstand
summary
judgment”)
(citations
omitted)).
Because
the
Howards
have
failed
to
present
sufficient
evidence
to
support
this
allegation
against
the
City,
defendants’
motion
for
summary
judgment
as
to
Count
Two
is
granted
and
this
claim
against
the
City
is
dismissed.
7.
False
arrest
pursuant
to
42
U.S.C.
§
1983
against
Sergeant
Bryant
(Count
Three)
The
Howards
allege
that
Sergeant
Bryant,
acting
under
color
of
law,
falsely
arrested
Mr.
Howard
and
violated
his
constitutional
rights.
Defendants
argue
that
viewing
the
evidence
in
the
light
most
favorable
to
the
Howards,
establishes
that
Sergeant
Bryant
had
probable
cause
to
arrest
Mr.
Howard
because
“[i]t
is
undisputed
by
the
four
officers
on
the
scene
that
Louis
Howard
struck
Sergeant
Bryant
in
the
face
as
he
swung
out
the
passenger
window.”
Defendants
assert
that
Mr.
Howard
cannot
remember
what
happened
and
cannot
dispute
the
officers’
testimony.
The
Howards
argue
that
because
Mr.
Howard
did
not
hit
Sergeant
Bryant,
neither
an
assault
nor
harassment
charge
was
appropriate.
The
Court
has
determined
that
there
is
a
dispute
of
fact
as
to
whether
Mr.
Howard
struck
Sergeant
Bryant.
This
fact
is
material
to
a
determination
whether
Sergeant
Bryant
had
probable
cause
to
arrest
Mr.
Howard
for
either
assault
under
Code
of
Alabama
§
13A-‐6-‐
him.’
The
training
further
taught
officers
to
de-‐escalate
the
situation
when
dealing
with
someone
who
has
a
mental
illness
or
disease.
The
training
emphasized
calling
the
paramedics
to
assist
with
someone
who
had
a
mental
illness.
“
(Doc.
23,
p.
7-‐8)
21
21
or
harassment
under
Code
of
Alabama
§13A-‐11-‐8,
and
thus
whether,
he
violated
Mr.
Howard’s
rights
under
the
Fourth
Amendment
to
be
free
from
an
unreasonable
seizure
or
arrest.
“A
warrantless
arrest
without
probable
cause
violates
the
Fourth
Amendment
and
forms
a
basis
for
a
section
1983
claim.”
Ortega
v.
Christian,
85
F.
3d
1521,
1525
(11th
Cir.
1996).
“If
probable
cause
for
arrest
exists,
however,
then
the
individual
has
no
claim
for
false
arrest
under
§
1983.”
Arrington
v.
Kinsey,
512
Fed.
Appx.
956,
958
(11th
Cir.
2013).
Accordingly,
summary
judgment
is
denied
as
to
Count
Three
against
Sergeant
Bryant.
8.
Negligent
Supervision
(Count
Four)
The
Howards
plead
Count
Four
for
negligent
supervision
alleging
that
Chief
Reese
“undertook
to
train
and
supervise”
the
City
of
Demopolis
police
officers
and
“negligently
supervised
Defendant
Sgt.
Bryant
by
failing
to
provide
proper
training
and
outline
proper
procedure
in
confronting
mentally
ill
persons.”
Defendants
argue
that
any
claims
against
Chief
Reese
in
his
personal
or
individual
capacity
for
negligent
training
and
supervision
should
be
dismissed
on
grounds
of
state-‐agent
immunity
because
his
conduct
falls
within
the
factors
identified
in
Ex
parte
Cranman,
792
So.
2d
392,
405
(Ala.
2003).
The
Howards
did
not
respond
to
the
defendants’
argument.
Thus,
the
Court
concludes
that
they
have
abandoned
this
claim
as
to
Chief
Reese.
Edmondson,
258
Fed.
Appx.
at
253;
Floyd,
274
Fed.
Appx.
at
765;
Resolution
Trust
Corp.,
43
F.3d
at
599;
Fils,
647
F.3d
at
1284;
Case,
555
F.3d
at
1329.
Defendants
also
argue
that
there
is
no
cause
of
action
under
Alabama
law
against
the
City
of
Demopolis
for
Chief
Reese’s
negligent
hiring,
supervising
or
training
a
subordinate,
Sergeant
Bryant,
and
therefore,
the
Howards
fail
to
state
a
claim
upon
which
relief
can
be
granted.
The
Howards
did
not
respond
to
the
defendants’
argument.
Thus,
the
22
Court
concludes
that
they
have
abandoned
this
claim
against
the
City.
Edmondson,
258
Fed.
Appx.
at
253;
Floyd,
274
Fed.
Appx.
at
765;
Resolution
Trust
Corp.,
43
F.3d
at
599;
Fils,
647
F.3d
at
1284;
Case,
555
F.3d
at
1329.
However,
while
historically,
“no
Alabama
court
has
expressly
recognized
a
cause
of
action
against
a
municipality
for
a
supervisor's
negligent
training
or
supervision
of
a
subordinate[,]
“
Borton
v.
City
of
Dothan,
734
F.
Supp.
2d
1237
(1258-‐1259)
(M.D.
Ala.
2010)
(citations
omitted);
Hamilton
v.
City
of
Jackson,
508
F.Supp.2d
1045,
1057–58
(S.D.
Ala.
2007);
Ott
v.
City
of
Mobile,
169
F.Supp.2d
1301,
1314–1315
(S.D.
Ala.2001),
in
Hughes
v.
City
of
Montgomery,
the
district
court
found
that
“[a]lthough
many
federal
district
courts
have
made
this
statement
over
the
years,
the
statement
may
no
longer
be
accurate[]”
because
the
“Alabama
Supreme
Court
recently
recognized
the
potential
for
a
negligent
hiring,
training,
and
supervision
claim
against
the
City
of
Montgomery”.
2013
WL
5945078,
*2
(M.D.
Ala.
Nov.
6,
2013)
(slip
copy)
(citing
Ex
parte
City
of
Montgomery,
99
So.
3d
282
(Ala.
2012)).
Based
upon
the
decision
in
Ex
parte
City
of
Montgomery,
the
district
court
analyzed
whether
the
City
of
Montgomery
was
entitled
to
immunity
from
suit
for
the
negligent
hiring,
training,
and
supervision
of
a
police
officer
pursuant
to
Alabama
statutory
and
case
law,
and
held
that
because
the
Police
Chief
was
a
“peace
officer,
state-‐agent
immunity
protects
him
and
the
city
from
suit
based
on
negligence
in
his
discretionary
acts
in
hiring,
training
and
supervising”
the
police
officer.
Id.
at
*3.
Thus,
even
should
such
a
cause
of
action
exist,
the
Howards
have
failed
to
present
any
evidence
that
Chief
Reese
was
not
entitled
to
immunity
from
suit
and
thus,
he
and
the
City
of
Demopolis
are
protected
by
state-‐agent
immunity.
Moreover,
should
such
a
cause
of
action
exist
against
a
municipality,
23
the
Howards
must
proffer
affirmative
proof
that
Sergeant
Bryant’s
incompetence
was
actually
or
constructively
known
by
Chief
Reese
and
the
City.
Borton,
734
F.
Supp.
2d
at
1259.
They
have
provided
no
evidence
to
support
this
element.
Accordingly,
summary
judgment
is
granted
in
favor
of
the
City
and
Chief
Reese
and
the
Howards’
negligent
supervision
claim
is
dismissed.
9.
Negligence
against
Sergeant
Bryant
(Count
Five)
The
Howards
allege
that
Sergeant
Bryant
“negligently,
recklessly
or
unskillfully
assaulted
and
arrested”
Mr.
Howard.
Defendants
argue
that
Sergeant
Bryant
is
entitled
to
state-‐agent
immunity
as
to
this
state
law
claim
because
there
is
no
dispute
of
fact
that
he
was
exercising
judgment
in
the
enforcement
of
the
criminal
laws
of
the
state
while
arresting
Mr.
Howard,
i.e.,
a
discretionary
function.
Defendants
argue
that
there
is
no
evidence
that
Sergeant
Bryant’s
actions
fall
within
any
exception
to
state-‐agent
immunity.
The
Howards
argue
that
Sergeant
Bryant’s
striking
Mr.
Howard,
pulling
him
out
the
van
window,
throwing
him
on
the
ground,
and
handcuffing
him
establishes
that
he
acted
in
bad
faith,
with
malice
or
willfully,
and
therefore,
is
not
entitled
to
state-‐agent
immunity.
Under
Alabama
law,
Sergeant
Bryant,
as
a
city
police
officer,
is
immune
from
tort
liability
“arising
out
of
his
[]
conduct
or
performance
of
any
discretionary
function
within
the
line
and
scope
of
his
[]
law
enforcement
duties.”
Ala.
Code
§
6–5–338(a).
This
rule
of
immunity
was
initially
stated
in
Ex
parte
Cranman,
792
So.2d
392
(Ala.2000)
and
later
revised
in
Hollis
v.
City
of
Brighton,
950
So.2d
300
(Ala.2006).
In
relevant
part,
the
Court
in
Hollis
explained
that
category
(4)
of
Cranman,
was
modified
to
read
“A
State
agent
shall
be
immune
from
civil
liability
in
his
or
her
personal
capacity
when
the
conduct
made
the
basis
of
the
claim
against
the
agent
is
based
upon
the
agent's
24
“....
“(4)
exercising
judgment
in
the
enforcement
of
the
criminal
laws
of
the
State,
including,
but
not
limited
to,
law-‐enforcement
officers'
arresting
or
attempting
to
arrest
persons,
or
serving
as
peace
officers
under
circumstances
entitling
such
officers
to
immunity
pursuant
to
§
6-‐5-‐338(a),
Ala.Code
1975.”
Hollis,
950
So.
2d
at
309.
10
However,
Sergeant
Bryant
would
not
be
immune
from
civil
liability,
if
he
acted
“willfully,
maliciously,
fraudulently,
in
bad
faith,
beyond
his
[]
authority,
or
under
a
mistaken
interpretation
of
the
law.”
Hollis,
950
So.
2d
at
308
(quoting
Cranman,
792
So.
2d.
at
405).
The
Court
has
determined
that
there
is
a
dispute
of
fact
as
to
whether
Mr.
Howard
struck
Sergeant
Bryant
before
he
struck
Mr.
Howard.
This
issue
of
fact
is
material
to
a
determination
as
to
whether
Sergeant
Bryant
acted
in
a
manner
that
would
preclude
application
of
state-‐agent
immunity.
Accordingly,
summary
judgment
is
denied
as
to
Count
Five
against
Sergeant
Bryant.
9.
Malicious
prosecution
(Count
Seven)
a)
The
Howards’
plead
Count
Seven
for
malicious
prosecution
against
all
“defendants”,
which
possibly
could
include
a
claim
against
the
City.
However,
the
“Alabama
Supreme
Court
has
held
that
claims
alleging
intentional
torts
against
municipalities
are
barred
under”
Ala.
Code
§
11-‐47-‐190.11
Walker
v.
City
of
Huntsville,
62
So.3d
474,
501–02
10
In
Blackwood
v.
City
of
Hanceville,
936
So.2d
495,
504
(Ala.2006),
the
Court
explained
that
by
enacting
Ala.
Code
§
6-‐5-‐338,
the
Legislature
extended
to
municipal
law
enforcement
officers
the
same
immunity
as
that
of
state
law
enforcement
officers
“performing
their
discretionary
functions
within
the
line
and
scope
of
their
law
enforcement
duties”.
(citations
omitted).
11
“No
city
or
town
shall
be
liable
for
damages
for
injury
done
to
or
wrong
suffered
by
any
person
or
corporation,
unless
such
injury
or
wrong
was
done
or
suffered
through
the
neglect,
carelessness,
or
unskillfulness
of
some
agent,
officer,
or
employee
of
the
25
(Ala.
2010)
(finding
that
claims
of
malicious
prosecution,
tort
of
outrage,
and
invasion
of
privacy
against
the
City
of
Huntsville
are
intentional
torts
and
barred
by
§
11–47–190).
Therefore,
the
City
may
be
found
liable
for
the
negligent
acts
of
its
employees
but
not
their
intentional
torts.
Brown
v.
City
of
Huntsville,
Ala.,
608
F.3d
724,
743
(11th
Cir.
2010)
(“In
sum,
under
§
11–47–190,
a
city
is
liable
for
negligent
acts
of
its
employees
within
the
scope
of
their
employment,
but
not
intentional
torts
of
its
employees.”).
Accordingly,
summary
judgment
is
granted
in
favor
of
the
City
and
the
Howards’
malicious
prosecution
claim
against
the
City
is
dismissed.
b)
Because
they
have
pled
this
count
against
the
“defendants”,
the
Howards’
possibly
allege
a
claim
for
malicious
prosecution
against
Chief
Reese
in
his
individual
capacity
as
Sergeant
Bryant’s
supervisor.
Defendants
moved
to
dismiss
on
basis
that
the
Howards
could
not
produce
evidence
in
support
of
the
elements
of
the
claim.
In
response,
the
Howards
assert
that
the
elements
are
met
and
that
Sergeant
Bryant
maliciously
prosecuted
Mr.
Howard
by
filing
the
charge
of
harassment
against
him.
However,
to
the
extent
that
they
attempt
to
assert
this
claim
against
Chief
Reese,
“[i]t
is
[
]
well
established
in
this
[c]ircuit
that
supervisory
officials
are
not
liable
under
§
1983
for
the
unconstitutional
acts
of
their
subordinates
on
the
basis
of
respondeat
superior
or
vicarious
liability.”
Miller
v.
King,
384
F.3d
1248,
1261
(11th
Cir.
2004)
(quoting
Cottone
v.
Jenne,
326
F.3d
1352,
1360
(11th
Cir.
2003)),
vacated
on
other
grounds,
449
F.3d
1149
(11th
Cir.
2006).
Chief
Reese
as
a
supervisory
official
may
be
liable
under
§
1983,
only
if
he
personally
participated
in
the
alleged
malicious
prosecution
or
if
there
is
a
causal
municipality
engaged
in
work
therefor
and
while
acting
in
the
line
of
his
or
her
duty.”
Ala.
Code
§
11-‐47-‐190.
26
connection12
between
his
official
actions
and
the
alleged
constitutional
deprivation.
Ganstine
v.
Williams,
476
Fed.Appx.
361,
363
(11th
Cir.
2912)(quoting
Cottone,
326
F.3d
at
1360).
Thus,
the
Howards
must
plead
that
Chief
Reese,
through
his
individual
actions,
has
violated
Mr.
Howard’s
constitutional
rights.
Ashcroft
v.
Iqbal,
556
U.S.
662,
676
(2009).
The
Howards’
pled
in
their
complaint
and
delineated
in
their
response,
only
the
actions
taken
by
Sergeant
Bryant.13
They
did
not
present
any
evidence
from
which
a
jury
could
reasonably
infer
that
Chief
Reese
participated
in
or
was
connected
to
the
alleged
malicious
prosecution.
Accordingly,
summary
judgment
is
granted
in
favor
of
Chief
Reese
and
the
Howards’
malicious
prosecution
claim
against
Chief
Reese
is
dismissed.
c)
As
to
Sergeant
Bryant,
defendants
argue
that
the
Howards
have
failed
to
establish
the
necessary
elements
of
a
malicious
prosecution
claim.
The
Howards
distinguish
the
case
upon
which
defendants
rely
and
point
out
that
Sergeant
Bryant
completed
a
police
report
and
filed
a
complaint
in
the
municipal
court,
that
Ms.
Howard
had
to
post
a
bond,
and
assert
that
the
“decision
to
prosecute
hinged
solely
on
Sgt.
Bryant’s
complaint.”
(Doc.
23,
p.
20)
They
did
not
respond
to
the
defendants’
argument
that
the
prosecution
was
not
terminated
in
favor
of
Mr.
Howard.
12
“A
plaintiff
may
establish
a
causal
connection
by
showing
that:
(1)
a
history
of
widespread
abuse
puts
the
responsible
supervisor
on
notice
of
the
need
to
correct
the
alleged
deprivation
and
he
fail[ed]
to
do
so;
(2)
the
supervisor's
improper
custom
or
policy
le[d]
to
deliberate
indifference
to
constitutional
rights;
or
(3)
facts
support
an
inference
that
the
supervisor
directed
the
subordinates
to
act
unlawfully
or
knew
that
the
subordinates
would
act
unlawfully
and
failed
to
stop
them
from
doing
so.”
Hendrix
v.
Tucker,
-‐
-‐
-‐
Fed.
Appx.
-‐
-‐
-‐
,
2013
WL
4504595,
1
(11th
Cir.
2013)
(citations
omitted)(internal
quotation
marks
omitted).
13
Plaintiffs
state
that
“Defendants
maliciously
and
without
probably
cause
therefore,
arrested
Plaintiff
.
.
.”
(doc.
1-‐1).
However,
the
Howards
raised
no
allegation
of
fact
that
Chief
Reese
participated
or
was
causally
connected
to
the
arrest.
Instead,
their
factual
allegations
indicate
that
Sergeant
Bryant
arrested
Mr.
Howard.
27
In
Grider
v.
City
of
Auburn,
618
F.3d
1240
(11th
Cir.
2010),
the
Eleventh
Circuit
explained
that
it
had
“identified
malicious
prosecution
as
a
violation
of
the
Fourth
Amendment
and
a
viable
constitutional
tort
cognizable
under
§
1983”
and
that
while
both
state
and
federal
law
“inform[ed]
the
elements
of
the
common
law
tort
of
malicious
prosecution,
a
Fourth
Amendment
malicious
prosecution
claim
under
§
1983
remains
a
federal
constitutional
claim,
and
its
elements
and
whether
they
are
met
ultimately
are
controlled
by
federal
law.”
Id.,
at
1257
(citation
omitted).
The
Circuit
Court
then
explained
that
[t]o
establish
a
§
1983
malicious
prosecution
claim,
the
plaintiff
must
prove
two
things:
(1)
the
elements
of
the
common
law
tort
of
malicious
prosecution;
and
(2)
a
violation
of
his
Fourth
Amendment
right
to
be
free
from
unreasonable
seizures.
Kingsland
v.
City
of
Miami,
382
F.3d
1220,
1234
(11th
Cir.2004);
Wood
[v.
Kesler],
323
F.3d
[872,]
881
[(11th
Cir.2003)].
As
to
the
first
prong,
the
constituent
elements
of
the
common
law
tort
of
malicious
prosecution
are:
“(1)
a
criminal
prosecution
instituted
or
continued
by
the
present
defendant;
(2)
with
malice
and
without
probable
cause;
(3)
that
terminated
in
the
plaintiff
accused's
favor;
and
(4)
caused
damage
to
the
plaintiff
accused.”
Wood,
323
F.3d
at
882.
The
elements
under
Alabama
law
for
the
common-‐law
tort
of
malicious
prosecution
are
the
same,
except
that
they
require
only
a
“judicial
proceeding”
not
a
“criminal
prosecution.”
Delchamps,
Inc.
v.
Bryant,
738
So.2d
824,
831–32
(Ala.1999).
Id.,
at
1256
(11th
Cir.2010)
(footnote
omitted).
The
Court
has
determined
that
there
is
a
dispute
of
fact
as
to
whether
Mr.
Howard
struck
Sergeant
Bryant
before
he
struck
Mr.
Howard.
This
dispute
of
fact
is
material
to
a
determination
whether
Sergeant
Bryant
violated
Mr.
Howard’s
right
to
be
free
from
unreasonable
seizures
and
upon
whether
he
acted
with
malice
and
without
probable
cause
in
arresting
Mr.
Howard
for
harassment.
Additionally,
the
undisputed
facts
establish
that
the
Municipal
Court
Judge
for
the
City
of
Demopolis
dismissed
the
criminal
charges
against
Mr.
Howard
by
noting
“Dismissed.
28
Sheriff
Bates’
request.”
(Doc.
20-‐10,
Case
Action
Summary,
State
v.
Howard,
MC-‐11-‐
351,“Bench
Notes:
Dismissed.
Sheriff
Bates’
request”,
dated
June
6,
2011,
Demopolis
Municipal
Court).
In
Uboh
v.
Reno,
141
F.
3d
1000,
1004-‐1005
(11th
Cir.
1998),
the
Eleventh
Circuit
stated
that
“[c]ourts
have
[
]
reasoned
that
only
terminations
that
indicate
that
the
accused
is
innocent
ought
to
be
considered
favorable.
.
.
.
Thus,
courts
have
found
that
withdrawal
of
criminal
charges
pursuant
to
a
compromise
or
agreement
does
not
constitute
favorable
termination
.
.
.
Similarly,
courts
have
refused
to
permit
a
finding
of
favorable
termination
where
the
stated
basis
for
the
dismissal
of
criminal
charges
has
been
in
the
interests
of
justice,
or
where
a
conviction
has
been
reversed
and
the
cause
expressly
remanded
for
retrial[.]”
The
Circuit
Court
also
explained
that
“[c]onsistent
with
each
of
the
policies
underlying
the
favorable
termination
requirement,
however,
courts
have
found
favorable
termination
to
exist
by
virtue
of
.
.
.
an
order
of
dismissal
reflecting
an
affirmative
decision
not
to
prosecute,
.
.
.
[and]
an
entry
of
a
nolle
prosequi[.]”
Id.,
at
1005.
The
Municipal
Court
Judge’s
order
indicates
that
the
Sheriff’s
request
for
dismissal
was
granted.
From
the
Sheriff’s
actions,
a
finder
of
fact
could
reasonably
infer
that
there
had
been
an
affirmative
decision
not
to
prosecute
Mr.
Howard.
See
Woodard
v.
Town
of
Oakman,
885
F.
Supp.
2d
1216,
1233-‐1234,
(N.D.
Ala.
2012)
(drawing
all
reasonable
inferences
from
Woodard’s
assertion
that
the
Town
abandoned
the
criminal
charges
against
him,
the
district
court
found
it
likely
that
the
evidence
would
show
that
the
Town
“made
an
affirmative
decision
not
to
prosecute.”).
Accordingly,
summary
judgment
is
denied
as
to
Mr.
Howard’s
claim
for
malicious
prosecution
against
Sergeant
Bryant.
10.
The
Howards’
state
law
claims
for
outrage
and
assault
(Counts
Six
and
Eight)
29
Defendants
argue
that
the
Howards’
claim
for
outrage
should
be
dismissed
because
this
is
an
extremely
limited
cause
of
action
and
the
defendants’
actions
do
not
rise
to
the
level
of
outrage
as
established
by
Alabama
law.
Defendants
also
argue
that
the
Howards’
claim
for
assault
raises
the
identical
issues
as
the
§
1983
claim
alleging
excessive
force
and
that
the
force
used
was
not
excessive.
The
Howards
did
not
respond
to
either
argument.
Thus,
the
Court
concludes
that
they
have
abandoned
their
state
law
claims
for
outrage
and
assault
against
the
defendants.
Edmondson,
258
Fed.
Appx.
at
253;
Floyd,
274
Fed.
Appx.
at
765;
Resolution
Trust
Corp.,
43
F.3d
at
599;
Fils,
647
F.3d
at
1284;
Case,
555
F.3d
at
1329.
Therefore,
summary
judgment
is
granted
in
favor
of
the
defendants
and
the
Howards’
state
law
claims
for
assault
and
outrage
are
dismissed.
11.
Ledora
Howard’s
claim
for
loss
of
consortium
(Count
Nine)
Defendants
argue
that
Ms.
Howard’s
claim
fails
as
a
matter
of
law
because
she
did
not
meet
the
statutory
prerequisites
for
filing
a
tort
claim
against
the
City
of
Demopolis.
Specifically,
she
did
not
file
a
timely
notice
and
a
sworn
statement
with
the
City
Clerk
as
required
by
Alabama
Code
§
11-‐47-‐23
and
§
11-‐47-‐192.
Ms.
Howard
did
not
respond
to
this
argument
and
did
not
dispute
the
allegation
that
she
had
not
met
the
statutory
prerequisites.
Thus,
the
Court
concludes
that
she
has
abandoned
her
claim
for
loss
of
consortium.
Edmondson,
258
Fed.
Appx.
at
253;
Floyd,
274
Fed.
Appx.
at
765;
Resolution
Trust
Corp.,
43
F.3d
at
599;
Fils,
647
F.3d
at
1284;
Case,
555
F.3d
at
1329.
Moreover,
“[p]ursuant
to
Ala.
Code
§
§
11–47–23
and
11–47–192,
no
claim
will
lie
against
a
city
or
town
for
personal
injury
unless
a
sworn
statement
by
the
party
injured
is
filed
with
the
city
clerk
within
six
months
of
the
date
of
injury.”
Cobb
v.
Aponte,
2010
WL
30
2609279,
*2
(M.D.
Ala.
2010)(noting
that
the
statutes
are
to
be
read
“in
pari
materia”).
“The
law
is
well-‐settled
in
Alabama
that
a
sworn
statement
is
a
prerequisite
before
a
suit
against
a
city
or
municipality
is
allowed
to
proceed.”
Id.
Accordingly,
summary
judgment
is
granted
in
favor
of
defendants
and
Ms.
Howard’s
claim
is
dismissed.
IV.
Conclusion
In
accordance
with
foregoing
analysis,
the
defendants’
motion
for
summary
judgment
is
GRANTED
as
to
all
claims
against
the
City
of
Demopolis,
Mayor
Grayson,
Chief
Reese,
and
the
Demopolis
Police
Department;
summary
judgment
is
granted
in
favor
of
Sergeant
Bryant
as
to
Count
Six
for
assault,
Count
Eight
for
outrage,
and
Count
Nine
for
loss
of
consortium;
and
denied
as
to
Sergeant
Bryant
as
to
Count
One
for
excessive
force,
Count
Three
for
false
arrest,
Count
Five
for
negligence,
and
Count
Seven
for
malicious
prosecution.
DONE
and
ORDERED
this
the
25th
day
of
November
2013.
s/
Kristi
K.
DuBose
KRISTI
K.
DuBOSE
UNITED
STATES
DISTRICT
JUDGE
31
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?