Howard v. Hudson et al

Filing 48

ORDER granting in part and denying in part 30 Motion for Summary Judgment, as set out. The Court construes the Defendants' motions to strike (docs. 43, & 44) as Objections. The Objections are overruled in part and sustained in part, as set out. Signed by Judge Kristi K. DuBose on 10/30/2014. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BERNDETTA HOWARD,
Plaintiff,

)
)
)
)
)
)
)

v.
WILLIE HUDSON, et al.,
Defendants.

CIVIL ACTION NO. 13-0247-KD-N

ORDER
This matter is before the Court on Defendants’ Motion for Summary Judgment (Docs.
30-33, 35), Plaintiff’s opposition (Docs. 39-40) and Defendants’ reply (Doc. 45); and
Defendants’ motions to strike (Docs. 43, 44) and Plaintiff’s opposition (Doc. 47).
I.

Background
This case concerns Plaintiff Berndetta Howard (“Howard”) and her son Brandon

Robinson (“Robinson”), and the events surrounding his 2012 arrest in Greensboro, Alabama,
which resulted in Howard’s arrest for disorderly conduct and resisting arrest.
On May 7, 2012, Greensboro Officer Eugene Lyles (“Lyles”) came to Howard’s place of
business and informed her that she and her son Robinson needed to appear at city hall due to a
complaint about Robinson having discharged a firearm within the city limits on May 6, 2012.
(Doc. 31-1 (Arrest Report); Doc. 31-2 (Aff. Hudson); Doc. 31-3 (Aff. Hamilton); Doc. 31-4
(Aff. Lyles); Doc. 40-1 (Decltn. Howard)). Howard and Robinson arrived at city hall and were
met by Officer Lyles who read Robinson his Miranda rights; Robinson admitted to discharging a
firearm without a permit in the city limits. (Id.) Shortly thereafter, Chief Willie Hudson (“Chief
Hudson) and Assistant Chief Michael Hamilton (“Hamilton”) arrived. (Id.) Chief Hudson and
Howard met and talked, and Robinson was allowed to bond out and was released from custody
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on the condition that he bring the firearm to the police department the next day, May 8, 2012, or
have his bond revoked. (Id.) On May 8, 2012, Robinson -- along with his two (2) year old son
Isaiah Robinson, Howard (his mother), and his uncle (State Representative Ralph Howard,
Howard’s brother) -- took a firearm to the Greensboro police station to meet with police officers
to discuss the return of the discharged firearm. (Doc. 1 (Complaint); Doc. 31-1 (Arrest Report)).1
The facts of the case, beyond this point, are vehemently disputed. With specific respect
to the resolution of a motion for summary judgment based on qualified immunity and Section
1983 – as is the case here -- the Eleventh Circuit has declared:
…. we approach the facts from the plaintiff's perspective … “[t]he issues appealed here
concern … whether or not certain given facts showed a violation of clearly established
law.” …. the “facts, as accepted at the summary judgment … may not be the actual
facts[]” …. for summary judgment purposes, our analysis must begin with a description
of the facts in the light most favorable to the plaintiff ….
McCullough v. Antolini, 559 F.3d 1201, 1202 (11th Cir. 2009). “At this juncture, we outline the
[plaintiff's] version of the events.” Hawkins v. Carmean, 562 Fed. Appx. 740 (11th Cir. 2014).2
Howard’s version thus follows.
The meeting commenced in Chief Hudson’s office. While discussing Robinson’s crime,
Howard’s brother told the Chief that any personal animosity between them should not influence
his investigation (they are members of opposing political factions in Greensboro). (Doc. 1 at 34; Doc. 40-1 (Decltn. Howard)). Howard’s brother added: “I could have come here to curse you
1 Robinson was stabbed in 2007, suffering life threatening injuries, by an individual named Ryan
Washington who was later imprisoned for attempted murder. (Doc. 31-9 (Dep. Howard at 13-14)). Washington was
paroled in 2012 with 5 years probation. (Id.; Doc. 40-1 (Decltn. Howard)). Howard alleges that she also went to the
police station that day to discuss Washington’s harassment and threatening of Robinson (during Washington’s trial
and after his release from prison). (Doc. 1 at 3; Doc. 40-1 (Decltn. Howard)). Robinson allegedly discharged the
firearm in the presence of Washington and others. (Id.; Doc. 31-9 (Dep. Howard at 294-295)).
2 See also e.g., Tipton v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992) (same); Priester
v. City of Riviera Beach, 208 F.3d 919, 925 n. 3 (11th Cir. 2000) (same).

2

out but I didn’t.” (Doc. 40-1 (Decltn. Howard)). In response, Chief Hudson leapt from his chair
into Howard’s brother’s face, pointing his finger in his face, touching his nose, and screaming.
(Id.) At this point, Howard became involved.
Specifically, Howard, holding her two (2) year old grandson, stood up and stepped
between the men to act as a peacemaker (without touching Chief Hudson), telling Chief Hudson
he did not have to put his hands in her brother’s face. (Id.; Doc. 31-9 (Dep. Howard at 287)).
Chief Hudson pushed Howard on her shoulder with both of his hands with such force that she
and her grandson fell to the ground and her grandson was knocked out of her arms, but Chief
Hudson continued arguing with Howard’s brother. (Doc. 40-1 (Decltn. Howard); Doc. 40-3
(Dep. Howard at 286-287); Doc. 31-9 (Dep. Howard at 278-281)). Howard got up from the floor,
checked her grandson for injuries, and again tried to break the men apart. (Doc. 40-1 (Decltn.
Howard)). Howard told Chief Hudson he did not have to put his hands on either she or her
brother and Chief Hudson pushed Howard a second time. (Id.; Doc. 31-9 (Dep. Howard at 280282)). At that point, seeing that they were ”getting nowhere” Howard and her brother turned to
leave and Howard asked for her shoe (which she had apparently lost during the exchange) which
was kicked to her by Municipal Court Magistrate Singleton, who was also present. (Doc. 40-1
(Decltn. Howard); Doc. 31-9 (Dep. Howard at 287)).3
Howard and her brother prepared to leave, with Howard protesting that Chief Hudson had
assaulted her. (Doc. 40-1 (Decltn. Howard); Doc. 31-9 (Dep. Howard at 286)). Assistant Chief
Hamilton took Howard’s crying grandson out of the office. (Doc. 40-1 (Decltn. Howard)). Then
Chief Hudson, using “his size and strength to try and subdue her[,]” grabbed and began twisting

3 Chief Hudson said to Office Lyles “cuff Brandon [Robinson]” and he was escorted out of the building at
some point. (Doc. 40-1 (Decltn. Howard); Doc. 31-9 (Decltn. Howard)).

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Howard’s arm. (Doc. 1; Doc. 40-1 (Decltn. Howard)). Howard told Chief Hudson to “turn my
goddamn arm loose[,]” but he would not. (Doc. 40-1 (Decltn. Howard)). At this point, Chief
Hudson had not told Howard that she was under arrest. (Id.) Magistrate Singleton instructed
Chief Hudson to use “this” referencing his belt, and Chief Hudson had what appeared to be two
(2) firearms on his belt. (Id). Howard was afraid and more irate, asking “Red [Chief Hudson]
are you going to shoot me over this[,]” to which Magistrate Singleton said “no but he needs to
Taser you.” (Id.) Chief Hudson told Howard he was going to Taser her. (Id.; Doc. 31-9 (Dep.
Howard at 303)).
Howard continued to struggle with Chief Hudson as the pressure to her arm was causing
“excruciating pain” but he refused to stop. (Doc. 40-1 (Decltn. Howard)). At this point, Chief
Hudson had still not informed Howard that she was under arrest. (Id.) Howard did not threaten
him nor attempt to bite him, but “begged him to release” her. (Id.) Chief Hudson continued to
“manhandle” her, and then dragged her from the back of the police department to the front
(through city hall) and pushed her into a city employee’s desk making her hit her head on a
computer screen. (Id.) Chief Hudson continued to drag her again by her right arm and during
the struggle Howard then fell into the desk of Lorrie Cook (a city employee), knocking objects to
the floor. (Doc. 40-1 (Decltn. Howard); Doc. 31-9 (Dep. Howard at 258)). With this, Howard
fell to the floor landing flat on her back, hitting her head again on a desk on the way down.
(Doc. 40-1 (Decltn. Howard); Doc. 31-9 (Dep. Howard at 123, 266-268)). See also (Doc. 31-5
(Aff. Singleton); Doc. 31-7 (Aff. Cook)). Chief Hudson, who was still holding onto her arm, fell
on her stomach with his knee between her legs. (Id.) At this point, Howard told Chief Hudson
that she was going to “de-crotch” him. (Doc. 31-9 (Dep. Howard at 251, 261, 304)).

4

For the first time during the entire encounter, Chief Hudson told Howard she was “going
to jail.” (Doc. 40-1 (Decltn. Howard)). Howard responded “no,” “but I will go with Deputy
[Enoch] Rose[]” (whom she trusted and with whom she felt safe).

(Doc. 40-1 (Decltn.

Howard)). Howard also began cursing Chief Hudson and telling him that he was hurting her.
(Doc. 40-1 (Decltn. Howard); Doc. 31-9 (Dep. Howard at 258)). Around this time, 911 was
called. (Doc. 31-5 (Aff. Singleton); Doc. 35 (Audio Recording of 911 calls)). Howard heard
Chief Hudson tell Assistant Chief Hamilton to get his handcuffs. (Doc. 31-9 (Dep. Howard at
123)). “Hamilton told … [Howard that] he walked out the door, and he wasn’t coming back with
no handcuffs, because what he [Chief Hudson] did was wrong.” (Id.) After Deputy Rose arrived
at the scene, she helped Howard up, handcuffed one of her hands, and escorted her out of city
hall to jail where she remained in a holding cell for 3½ hours. (Id.; Doc. 31-9 (Dep. Howard at
123, 131, 134)).
Howard was admitted to the ER at Hale County Hospital where she claims to have
incurred over $10,000 in bills. (Doc. 1 at 5). Howard was treated for a sprained arm and a neck
bruise, and head soreness from hitting the desk. (Doc. 31-9 (Dep. Howard at 164, 187)).
Howard was later treated by her chiropractor who concluded she had swollen shoulders and
prescribed pain medicine. (Id. (Dep. Howard at 188)). Howard was ultimately charged with
disorderly conduct and resisting arrest, was tried in Greensboro Municipal Criminal Court on
November 15, 2012, and was convicted. (Doc. 31-10; Doc. 31-11 at 11-12). Howard appealed
her conviction by paying $1,388 to Municipal Magistrate Singleton, to the Hale County Circuit
Court.

(Doc. 40-1 (Decltn. Howard)). After paying her fee she periodically contacted the

Greensboro Circuit Court clerk and asked whether "the money had been transferred" and was
repeatedly told “no.” (Id.) In December 2013, Howard was contacted by the Clerk of the City of
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Greensboro, Lorrie Cook, who told her to pick up her appellate filing fee. (Id.) Per Howard,
Magistrate Singleton had not processed her appeal payment. (Id.)
On May 1, 2013, Howard filed a Section 1983 complaint against Chief Hudson (in his
individual and official capacities) for excessive force, assault and battery (also under state law
citing Ala. Code § 6-5-370), false arrest, and denial of due process; and against the City of
Greensboro, Alabama (“the City”) for denial of due process, and for the state law claims of
negligent training, supervision and retention. (Doc. 1). Howard claims physical injuries, mental
anguish, and emotional distress from “Chief Hudson’s unprovoked attack.” (Id.) Howard asserts
injuries to her back, neck, and right arm, for which she continues to receive treatment. (Doc. 401 (Decltn. Howard)). Howard also asserts that her grandson remains afraid when he sees law
enforcement, due to having witnessed Chief Hudson’s actions. (Id.)
II.

Motions to Strike
The Defendants filed motions to strike the deposition of Morris Polion (“Polion”) and the

Declaration of Howard, to which Howard has responded. (Docs. 43, 44, 47). With the December
1, 2010 rules change to Rule 56 of the Federal Rules of Civil Procedure, motions to strike
submitted on summary judgment are no longer appropriate. Revised Rule 56(c)(2) provides that
“[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.” The Advisory Committee Notes specify as follows:
“Subdivision (c)(2) provides that a party may object that material cited to support or
dispute a fact cannot be presented in a form that would be admissible in evidence. The
objection functions much as an objection at trial, adjusted for the pretrial setting. The
burden is on the proponent to show that the material is admissible as presented or to
explain the admissible form that is anticipated. There is no need to make a separate
motion to strike. If the case goes to trial, failure to challenge admissibility at the
summary-judgment stage does not forfeit the right to challenge admissibility at trial.”

6

Fed.R.Civ.P. 56, Adv. Comm. Notes, “Subdivision(c)” (2010 Amendments) (emphasis added).
As such, the Court construes the Defendants’ motions as Objections, to be overruled or
sustained.
A.

Deposition of Morris Polion (Doc. 40-2)
Howard relies upon six (6) pages of the deposition of former Greensboro police officer

Morris Polion,4 as taken in another case in this Court (also against Chief Hudson), Polion v. City
of Greensboro, et al, CV 13-00244-WS-M (S.D.Ala.). Howard asserts that Defendants’ summary
judgment as to her Section 1983 claim against the City should be denied as per Polion, “Chief
Hudson’s repeated and unlawful use of excessive force when dealing with Greensboro citizens
was well known by the Mayor and some of the elected officials.” (Doc. 39 at 2).
At the outset, Howard submitted the entirety of the deposition. However, Howard
exclusively relies upon six (6) pages of the deposition (Pages 40-41, 60-61, 150-151). (Doc. 39
at 22). Thus, the remaining pages are simply irrelevant and have not been considered on
summary judgment. As such, it is ORDERED that the Defendants’ Objection is MOOT as to
the remaining pages of Polion’s deposition.
Concerning the six (6) pages relied upon by Howard, Polion testified that he believes that
the Greensboro police department treated its citizens unjustly and unlawfully with intimidation,
and that the Assistant Chief “advised him” of such mistreatment. (Id. (Dep. Polion at 40-41)).
Polion testified that he witnessed incidents when Chief Hudson used a flashlight to hit citizens he

4 Polion was employed by the Greensboro Police Department as a police officer but was terminated in July
2012 after complaining about Chief Hudson’s actions to the mayor and councilmembers. (Doc. 40-2 (Dep. Polion at
16, 24-25, 44, 48-49)). Apart from simply obtaining this information about who Polion is (as Howard did not
indicate as such) the Court did not read the remaining pages of the deposition as Howard does not rely on same.

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was trying to arrest and/or during fights he was trying to break apart – he engaged in “aggressive
handling of people[]” in Greensboro. (Id. (Dep. Polion at 60-61, 150-151)).
In objection, the Defendants contend that Howard violated the Federal Rules of Civil
Procedure because Polion was never disclosed as a witness until summary judgment, preventing
the Defendants from conducting any discovery as to him or deposing him as to Howard’s
specific claims. The Defendants add that while it was aware of Polion’s identity as a City
employee and that his deposition testimony (upon which Howard relies) was provided in another
case in this Court, Polion v. City of Greensboro, et al, CV 13-244, the City’s current counsel was
not involved in that case and Howard’s failure to disclose him as a witness in this case as well
and his knowledge as to her claims, violates Rule 26. The Defendants argue that Howard’s
failure to disclose cannot be considered substantially justified or harmless under Rule 26 or Rule
37. However, the Defendants simultaneously admit that it listed Polion as a witness regarding
the “facts and circumstances of Berndetta Howard’s criminal behavior on May 8, 2012” as he
was the officer who filed the incident/offense report on Howard’s disorderly conduct charge.
Even so, the Defendants contend that such should not change the Court’s analysis as the City
never received any notice that Howard would or might offer testimony from Polion to support
her claims. Additionally, the Defendants generally contend that Polion’s deposition contains
hearsay,

lacks

evidentiary

foundation

and/or

personal

knowledge,

and

contains

inadmissible/irrelevant information.
Upon consideration, the Defendants cannot claim surprise or failure to disclose a witness
that it designated itself, and/or assert such simply because Howard intends to use that witness to
try to bolster her case. Additionally, one of the attorneys for the City was counsel in the Polion
case, which provided access/knowledge of the contents of Polion’s deposition. As for a lack of
8

personal knowledge, Polion testified to personal knowledge of the events on the six (6) pages (as
he was present). Concerning hearsay, inadmissible hearsay may be considered on summary
judgment provided that such hearsay could be reduced to admissible form at trial. Hosea v.
Langley, 2006 WL 314454, *8 (S.D. Ala. Feb. 8, 2006); Jones v. UPS Ground Freight, 683 F. 3d
1283, 1293-1294 (11th Cir. 2012); Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999).
Nevertheless, the pages upon which Howard relies concern Polion’s testimony about
incidents he witnessed as to Chief Hudson, and other individuals (individuals unrelated to this
case).

Additionally, the pages do not support Howard’s conclusory assertion that “Chief

Hudson’s repeated and unlawful use of excessive force when dealing with Greensboro citizens
was well known by the Mayor and some of the elected officials[.]” Rather, the pages reveal
Polion’s personal beliefs; that former Assistant Chief Coates possibly knew about Chief
Hudson’s actions; that he witnessed incidents where Chief Hudson used a flashlight to hit
citizens. These pages do not mention the Mayor and/or other elected officials, nor do they
establish that Chief Hudson was “repeatedly acting unlawfully using excessive force.” Thus,
while the Court overrules the objection, the Court also finds the testimony to be minimally
relevant.
B.

Declaration of Berndetta Howard (Doc. 40-1)
The Defendants contend that Howard’s declaration contains hearsay, legal conclusions,

lacks evidentiary foundation and/or personal knowledge, contains irrelevant information and
conclusory statements. The Defendants move for the Court to sustain its objections to Paragraphs
1-5, 10-17, 20, 23, 24, and 28-29 under Federal Rules of Evidence 401, 602, 701, 802.
Regarding the specific paragraphs objected to – to which Howard has declared under
penalty of perjury are true and correct and made “based on facts personally known to me[:]”
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1: Howard’s statement that she was “falsely arrested, assaulted and battered” is argument
and/or a legal conclusion and so the Defendants’ objection to that portion of the
paragraph is sustained, but the other objections are overruled.
2: Howard has personal knowledge of what she said because she said it and of what she
experienced because she experienced it, as well as her opinion of how local law
enforcement handled her reports and complaints about threats to her son, so the
Defendants’ objections are overruled. With regard to any hearsay objections, a court may
consider hearsay in passing on a motion for summary judgment if the statement could be
reduced to admissible evidence/form at trial. Hosea, 2006 WL 314454, *8; Jones, 683 F.
3d at 1293-1294; Macuba, 193 F.3d at 1322.
3: Howard has personal knowledge of what she said because she said it and of what she
experienced because she experienced it, so the Defendants’ objections are overruled.
With regard to any hearsay objections, a court may consider hearsay in passing on a
motion for summary judgment if the statement could be reduced to admissible
evidence/form at trial. Hosea, 2006 WL 314454, *8; Jones, 683 F. 3d at 1293-1294;
Macuba, 193 F.3d at 1322.
4: Howard has personal knowledge of what she said because she said it and of what she
experienced because she experienced it, so the Defendants’ objections are overruled.
With regard to any hearsay objections, a court may consider hearsay in passing on a
motion for summary judgment if the statement could be reduced to admissible
evidence/form at trial. Hosea, 2006 WL 314454, *8; Jones, 683 F. 3d at 1293-1294;
Macuba, 193 F.3d at 1322. As for Officer Lyles’ statements, she has personal knowledge
because she witnessed it and Officer Lyles is an agent of the City and thus on summary
judgment it is allowable under Rule 801(d)(2).5
5, 10, 13-15, 17: Howard has personal knowledge of what she said because she said it
and of what she experienced because she experienced it, so the Defendants’ objections
are overruled. With regard to any hearsay objections, a court may consider hearsay in
passing on a motion for summary judgment if the statement could be reduced to
admissible evidence/form at trial. Hosea, 2006 WL 314454, *8; Jones, 683 F. 3d at
5 See, e.g., Kidd v. Mando American Corp., 731 F.3d 1196, 1208 (11th Cir. 2013) (discussing a statement
made by a human resources director and explaining that Rule 801(d)(2)(D) provides that a statement is not hearsay
if it “is offered against a party and is ... a statement by the party's agent or servant concerning a matter within the
scope of the agency or employment, made during the existence of the relationship” and that an employees’ statement
may also be admissible as the statement of a party opponent). Rule 801(d)(2) provides:
An Opposing Party's Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party's agent or employee on a matter within the scope of that relationship
and while it existed; or
(E) was made by the party's coconspirator during and in furtherance of the conspiracy.

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1293-1294; Macuba, 193 F.3d at 1322. As for her brother’s statement and Chief
Hudson’s statement, she has personal knowledge because she witnessed it, her brother’s
statement can be made admissible at trial through his testimony, and Chief Hudson is
both a party and an agent of the City and thus on summary judgment it is allowable under
Rule 801(d)(2). See supra note 5. The only exception is a portion of for Paragraph 17:
as for her statement that “Chief Hudson assaulted and battered me,” that is an argument
and/or a legal conclusion and the Defendants’ objection is sustained as to same.
11, 12: Howard has personal knowledge of same, so the Defendants’ objections are
overruled.
16: The Defendants’ objection to the height and weight of her brother and Chief Hudson
is sustained. Howard has personal knowledge of her brother’s medical condition and so
that objection is overruled (and even if not, this can be made admissible at trial through
her brother’s testimony). Hosea, 2006 WL 314454, *8; Jones, 683 F. 3d at 1293-1294;
Macuba, 193 F.3d at 1322.
20: Howard has personal knowledge of what she said because she said these things, so
the Defendants’ objection are overruled. As to what Howard says Singleton and Chief
Hudson said, she has personal knowledge because she witnessed it. With regard to any
hearsay objections, a court may consider hearsay in passing on a motion for summary
judgment if the statement could be reduced to admissible evidence/form at trial. Hosea,
2006 WL 314454, *8; Jones, 683 F. 3d at 1293-1294; Macuba, 193 F.3d at 1322.
Moreover, Singleton is an agent of the City and Chief Hudson is a party and an agent of
the City; thus it is allowable under Rule 801(d)(2). See supra note 5.
23: These are not inconsistent statements, so the Defendants’ objection is overruled.
24: Howard has personal knowledge of what transpired, as well as she said because she
said it, so the Defendants’ objection is overruled. As for Chief Hudson’s statement, she
has personal knowledge because she witnessed it, and with regard to any hearsay
objections, a court may consider hearsay in passing on a motion for summary judgment if
the statement could be reduced to admissible evidence/form at trial. Hosea, 2006 WL
314454, *8; Jones, 683 F. 3d at 1293-1294; Macuba, 193 F.3d at 1322. Moreover,
Singleton is an agent of the City and Chief Hudson is a party and an agent of the City;
thus it is allowable under Rule 801(d)(2). See supra note 5.
28: Howard has personal knowledge of her case and her appeal (including her appellate
fee) and is entitled to her opinion as to how her appeal was handled, so the Defendants’
objection is overruled.
29: Howard has personal knowledge of her injuries and facts regarding her grandson are
based on her personal knowledge and are relevant to the circumstances of her excessive
force claim, so the Defendants’ objection is overruled. As to the cause of her injury being
“due to Chief Hudson’s assault on me” this speaks to causation and arguing her case,
11

which is essentially a legal conclusion and as such, the Defendants’ objection is sustained
to that portion of the paragraph.
III.

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) (Dec. 2010). Amended 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. Rule 56(c). Defendants, as the parties seeking summary judgment, bear 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 v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting
12

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the nonmoving party fails to make “a
sufficient showing on an essential element of her case with respect to which she has the burden
of proof,” the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. “In
reviewing whether the nonmoving party has met its burden, the court must stop short of
weighing the evidence and making credibility determinations 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, 998-999 (11th Cir. 1992) (internal
citations and quotations omitted).
IV.

Chief Hudson

A.

Count 1: Section 1983 Excessive Force, Assault, Battery6
Howard alleges that Chief Hudson violated her Fourth, Fifth, and Fourteenth Amendment

rights to be free from excessive force, assault, and battery under Section 1983.
1.

Official Capacity

As to Howard’s official capacity claim against Chief Hudson,“[a] claim asserted against
an individual in his … official capacity is … a suit against the entity that employs the
individual.” Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1309 (11th Cir. 2009). See also Penley v.
Eslinger, 605 F.3d 843, 855 (11th Cir. 2010) (such suits are “only another way of pleading an
action against an entity of which an officer is an agent[]”)). Thus, Howard’s official capacity
claim lacks merit as the City has been sued directly. Kentucky v. Graham, 473 U.S. 159, 165166 and 167 at note 14 (1985). Thus, Defendants’ motion on this claim is GRANTED.

6 The complaint asserts state law and § 1983 as the basis of its assault and battery claims. However, the court
will consider the assault and battery claim as excessive force when analyzing liability under § 1983.

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2.

Fifth Amendment

Howard’s Fifth Amendment claim against the Chief Hudson lacks merit because he was a
municipal not federal actor, and the Fifth Amendment restricts the activity of the federal
government. Bartkus v. State of Illinois, 359 U.S. 121, 124 (1959) (stating that the Fifth
Amendment’s due process clause applies only to the federal government); Buxton v. City of
Plant City, Fla., 871 F.2d 1037, 1041 (11th Cir. 1989) (providing that the Fifth Amendment
“restrains the federal government[]”); Hardy v. Town of Hayneville, 50 F. Supp.2d 1176, 1186
(M.D. Ala. 1999) (discussing the necessity of being a federal actor for this claim). As such,
Defendants’ motion on this claim is GRANTED.
3.

Fourteenth Amendment: Substantive Due Process

Howard’s Fourteenth Amendment claim is unclear.7 Nevertheless, “Graham foreclosed
the use of substantive due process analysis in claims involving the use of excessive force in
effecting an arrest and held that such claims are governed solely by the Fourth Amendment's
prohibitions against ‘unreasonable’ seizures, because the Fourth Amendment provided the
explicit source of constitutional protection against such conduct. 490 U.S. at 394–395, 109 S.Ct.
1865.” Chavez v. Martinez (2003) 538 U.S. 760, 773 at note 5 (2003) (emphasis in original). As
such, Defendants’ motion on this claim is GRANTED.

7 West v. Davis, 767 F.3d 1063, 1067 (11th Cir. 2014): “[u]nder substantive due process, the question
would be whether … [Chief Hudson’s] use of force shocks the conscience, a more onerous standard of proof than
under the Fourth Amendment. Fennell v. Gilstrap, 559 F.3d 1212, 1217 (11th Cir.2009).”

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4.

Fourth Amendment

As to Howard’s excessive force claim under the Fourth Amendment8 pursuant to Section
1983, Section 1983 provides a method for vindicating federal rights conferred by the
Constitution and federal statutes. Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979).

Section

1983 states:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State ... subjects, or causes to be subjected, any citizen of the United States ... to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress.
42 U.S.C. § 1983. To prevail in such an action a plaintiff must make a prima facie showing: 1)
the act or omission deprived plaintiff of a right, privilege or immunity secured by the
Constitution or laws of the United States, and 2) the act or omission was done by a person acting
under color of law. Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174
(11th Cir. 1993); Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992).
Chief Hudson contends that he is entitled to qualified immunity with regard to Howard’s
Section 1983 claims against him. Qualified immunity shields public officials acting within the
scope of their discretionary authority from liability so long as their acts do not violate clearly
established statutory or constitutional rights. Pearson v. Callahan, 555 U.S. 223 (2009); Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982); Autery v. Davis, 355 Fed. Appx. 253, 256 (11th Cir.
2009); Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288, 1291 (11th Cir. 2009). “The
purpose of this immunity is to allow government officials to carry out their discretionary duties
without the fear of personal liability or harassing litigation...protecting from suit all but the
8 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.

15

plainly incompetent or one who is knowingly violating the federal law.” Lee v. Ferraro, 284
F.3d 1188, 1194 (11th Cir. 2002). The initial inquiry is whether the public official “prove[s] that
he was acting within the scope of his discretionary authority when the allegedly wrongful acts
occurred,” Lee, 284 F.3d at 1194, by establishing that “the government employee was (a)
pursuing a legitimate job-related function (…pursuing a job-related goal), (b) through means that
were in his power to utilize.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th
Cir. 2004). “Once the defendant establishes … his discretionary authority, the burden shifts to
the plaintiff to show that qualified immunity is not appropriate.” Lee, 284 F.3d at 1194. From
there, the qualified immunity determination is comprised of a multi-part test. Courts determine:
1) whether the facts, taken in the light most favorable to the plaintiff, show that the defendant's
conduct violated the plaintiff's constitutional rights; and 2) whether the right at issue was clearly
established at the time of the constitutional violation. Harlow, 457 U.S. at 818. It is within a
court's discretion “which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at
235-236 (referencing the Saucier v. Katz, 533 U.S. 194 (2001) analysis).
Here, there is no dispute as to whether Chief Hudson was acting within the scope of his
discretionary authority during the relevant time period. As such, the burden shifts to Howard
such that she must demonstrate: 1) whether the facts, taken in the light most favorable to her,
show that Chief Hudson’s conduct violated her constitutional rights; and 2) whether the right at
issue was clearly established at the time of the constitutional violation. Harlow, 457 U.S. at 818;
Townsend v. Jefferson Cty., 601 F.3d 1152, 1158 (11th Cir. 2010)).
The Eleventh Circuit has given “clear notice to a reasonable officer that excessive force
used without justification” is unconstitutional. Mills v. Parker, 379 Fed. Appx. 852, 854 (11th
16

Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 230-233, 235-236 (2009)). See also
Payton v. City of Florence, Ala., 413 Fed. Appx. 126, 133 (11th Cir. 2011) (conduct of officer, as
described by plaintiff, was clearly a violation of the Constitution). Thus, the Court turns to
whether Howard has suffered evidence of unjustified force by Chief Hudson.
In considering Howard’s burden, the Court notes as follows. “The Fourth Amendment's
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.” Lee, 284 F.3d at 1197. “[G]ratuitous use of
force when a criminal suspect is not resisting arrest constitutes excessive force.” Hadley v.
Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008). However, “Fourth Amendment jurisprudence
has long recognized that the right to make an arrest … necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect it.” Lee, 284 F.3d at 1197.
Nevertheless, “while some force is permitted in effecting an arrest, whether the force is
reasonable depends on ‘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.’” Brown v. City of Huntsville, Ala., 608 F.3d 724, 737-738 (11th Cir. 2010). As such, the
Fourth Amendment's “objective reasonableness” standard governs whether a use of force is
excessive which includes assessing: the need for the application of force, the relationship
between the need and the amount of force used, the extent of the injury inflicted, and whether the
force was applied in good faith or maliciously or sadistically. Hadley, 526 F.3d at 1329.
As stated in Brown: “[a] law enforcement officer receives qualified immunity for use of
force during an arrest if an objectively reasonable officer in the same situation could have
believed the use of force was not excessive….[it] must be judged on a case-by-case basis ‘from
the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
17

hindsight.’…We judge use of force solely on an objective basis, and we do not consider an
officer's subjective belief.” Brown, 608 F.3d at 738. See also Graham v. Connor, 490 U.S. 386,
396-397 (1989) (citations omitted); Hamilton v. City of Jackson, Ala., 261 Fed. Appx. 182, 185
(11th Cir. 2008). “If an officer reasonably, but mistakenly, believed that a suspect was likely to
fight back, for instance, the officer would be justified in using more force than in fact was
needed.” Saucier v. Katz, 533 U.S. 194, 205 (2001), overruled in part, Pearson v. Callahan, 129
S.Ct. 808, 818 (2009). The standard “looks to the need for force, the amount of force used, and
the injury inflicted.” Jones v. City of Dothan, Ala., 121 F.3d 1456, 1460 (11th Cir. 1997) (per
curiam). Courts also account “for the fact that police officers are often forced to make splitsecond judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the
amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-397. While
suspects have a right to be free from force that is excessive, they are not protected against force
that is “necessary in the situation at hand.” Lee, 284 F.3d at 1197.
Moreover, to balance the necessity of use of force against the arrestee’s constitutional
rights, the reasonableness test is not mechanically applied, but instead “requires careful attention
to the facts and circumstances of each particular case” by consideration of the “Graham factors:”
1) the severity of the crime; 2) whether the suspect posed an immediate threat to the safety of the
officers or others; and 3) whether the suspect actively resisted arrest or attempted to evade arrest
by flight. See, e.g., Fils v. City of Aventura, 647 F.3d 1272, 1288 (11th Cir. 2011); Vinyard v.
Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002). See also Borton v. City of Dothan, 2010 WL
3328361, *7 (M.D. Ala. Aug. 24, 2010).
The parties significantly dispute what transpired between Chief Hudson and Howard on
May 8, 2012. Defendants contend that Chief Hudson did not use excessive force. Chief Hudson
18

disputes that he pushed Howard in his office and claims that while trying to arrest her, he “barely
held” on to her arm so as “to not let go[]” as he tried to lead her through the building to effect the
arrest, except for when she pulled him to the ground and fell with him landing on her and putting
pressure on her stomach -- but that during the incident she was violent, aggressive, screaming,
threatening him, cursing, trying to bite him, and resisting arrest.9 As detailed supra Section I,
according to Howard’s version of events which this Court is bound to follow on summary
9 According to Defendants, the firearm Robinson brought to the police station was not the one he had
discharged, but instead, was a “b-b” gun. (Doc. 31-2 (Aff. Hudson); Doc. 31-3 (Aff. Hamilton); Doc. 31-4 (Aff.
Lyles)). Chief Willie Hudson (“Chief Hudson”),9 while meeting with Robinson, Howard and Howard’s brother,
explained that Robinson’s bond would be revoked and he would be placed in jail unless he brought in the discharged
firearm. (Id.) Howard’s brother then stated he was leaving and Chief Hudson rose from his seat along with
Howard’s brother, to continue the conversation as he left. (Id.) However, at that point, Howard stood up and forced
herself between them, obstructing Chief Hudson’s path. (Doc. 31-9 (Dep. Howard at 287)). Chief Hudson may have
touched Howard slightly in an effort to move around her. (Doc. 31-2 (Aff. Hudson)). Assistant Chief Michael
Hamilton (“Hamilton”), who was also present, states that Chief Hudson placed his hands on Howard slightly, to
move around her. (Doc. 31-3 (Aff. Hamilton)). At this time, Officer Eugene Lyles (“Lyles”) and Robinson walked
out the back of the police station and Hamilton escorted Robinson’s son (also present) out the same door. (Doc. 312 (Aff. Hudson); Doc. 31-3 (Aff. Hamilton); Doc. 31-4 (Aff. Lyles)). While Howard’s brother was leaving, Chief
Hudson instructed Lyles to place Robinson under arrest as no one had any intention of providing the discharged
firearm. (Id.) Then, with everyone standing outside the police station, Howard exclaimed that Robinson was not
going to be arrested and that they were going home. (Doc. 31-2 (Aff. Hudson); (Doc. 31-5 (Aff. Singleton)).
Chief Hudson instructed Howard -- who had started yelling at him inches from his face -- to sit down and
calm down, giving her several opportunities to do so. (Doc. 31-2 (Aff. Hudson); (Doc. 31-5 (Aff. Singleton); Doc.
31-6 (Aff. Wilson)). She did not, so he placed Howard under arrest, taking Howard by one arm and leading her to
the front of and through the city hall building (he lacked handcuffs). (Id.) Howard started screaming wildly,
directing profanity and threats to Chief Hudson, as well as trying to hit and bite him and escape his grasp –
strenuously resisting arrest. (Id.; Doc. 31-7 (Aff. Cook); Doc. 31-9 (Dep. Howard at 258)). Howard exclaimed that
she was going to “beat his ass[],” “fuck him up,” “bust him in the face” and “kill him.” (Doc. 31-2 (Aff. Hudson);
(Doc. 31-5 (Aff. Singleton); Doc. 31-7 (Aff. Cook); Doc. 31-8 (Aff. Williams); Doc. 31-11). Howard, in this state,
knocked objects off of the desks in the City Clerk’s office, lost her balance, and fell to the floor bringing Chief
Hudson, who was holding her, down with her. (Doc. 31-2 (Aff. Hudson); Doc. 31-3 (Aff. Hamilton); Doc. 31-4
(Aff. Lyles); Doc. 31-5 (Aff. Singleton); Doc. 31-6 (Aff. Wilson); Doc. 31-7 (Aff. Cook); Doc. 31-9 (Dep. Howard
at 267)). After the fall, Chief Hudson held on to Howard to “keep hold of her until assistance arrived and only used
the minimal force necessary to do so.” (Doc. 31-2 (Aff. Hudson)). Chief Hudson asserts that he never pushed, hit,
kicked, punched or struck Howard, but simply held on to her arm to prevent her from fleeing while he waited for
assistance to place her under arrest and subdue her violent and aggressive behavior. (Id.) One witness asserts that
Chief Hudson did not hit or attempt to hit Howard and he did not see Chief Hudson even touch her until after he told
her she was under arrest: “[t]he only force he used was holding her arm as he led her down the hall while she was
continuing to thrash about and to try to pull away from him.” (Doc. 31-6 (Aff. Wilson)). Alarmed at Howard’s
behavior, a City employee witnessing the event called 911 as other officers were not in the building. (Doc. 31-5
(Aff. Singleton); Doc. 31-9 (Dep. Howard at 125)). In response, Deputy Enoch Rose (“Rose”) arrived and arrested
Howard, placing her in handcuffs and transporting her to the jail where she booked and placed in a holding cell.
(Doc. 31-2 (Aff. Hudson); Doc. 31-3 (Aff. Hamilton); Doc. 31-4 (Aff. Lyles); Doc. 31-5 (Aff. Singleton); Doc. 31-7
(Aff. Cook); Doc. 31-9 (Dep. Howard at 125, 131, 134)). See also (Doc. 31-8 (Aff. Williams)).

19

judgment: an unprovoked Chief Hudson assaulted and battered Howard by repeatedly
grabbing/twisting her arm, pushing her twice on the shoulders with such force that she and her
two (2) year old grandson fell to the ground, falling on her after painfully dragging her by the
arm through the police station, causing her to knock her head into a computer and a desk in city
hall making her lose her balance, telling her he was going to taser her, and making her think he
might shoot her. Moreover, according to Howard, all this transpired while she was a nondangerous, non-resisting subject, before she was told she was under arrest (so could not have
been actively resisting arrest or attempting to evade arrest), when she was not an immediate
threat to the safety of officers/others, and for an arrest for a minor offense (disorderly conduct).10
With Howard’s version, a reasonable jury could find that this type of conduct, if
occurred, would be a constitutional violation of Howard’s right to be free from excessive force.
With Chief Hudson’s version, a jury could find this conduct, if occurred, objectively reasonable
and thus, not a violation of Howard’s constitutional rights. While a law enforcement officer's
right to arrest carries with it the ability to use some force in making an arrest, Lee, 284 F.3d at
1197-1198, here there is a vigorous dispute as to the amount and level/severity of force used by
Chief Hudson and even whether he was making an arrest when the physical contact began.
These dramatically differing versions of events underscore the existence of a genuine
issues of material fact, and Howard’s version is based on her “first-hand personal knowledge, not
[her] subjective beliefs” which “directly contradict the officers’ assertions.” Feliciano v. City of
Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013) (noting that such “contradiction presents a
10 Fils, 647 F.3d at 1288-1289: “Disorderly conduct is not a serious offense … Similarly, resisting arrest
without force does not connote a level of dangerousness that would justify a greater use of force….unprovoked force
against a non-hostile and non-violent suspect who has not disobeyed instructions violates that suspect's rights under
the Fourth Amendment.”

20

classic swearing match, which is the stuff of which jury trials are made[]”). See also Ramirez v.
James, 2012 WL 5511045, *3 (N.D. Ala. Oct. 19, 2012) (noting that summary judgment is not
the procedure to resolve swearing matches between parties in excessive force claims as such
instead “calls for the fact-finder to examine several factors, including the need for the application
of force, the amount of force used in relation to the need, the restraint used in the application of
force, and the extent of injuries suffered[]”). And even if a district court believes that evidence
presented by one side is of “doubtful veracity,” it is not proper to grant summary judgment on
the basis of credibility choices. Feliciano, 707 F.3d at 1252. The credibility of Chief Hudson’s
or Howard’s version of events and the weighing of evidence are matters for a jury, not the
undersigned. Thus, Defendants’ motion on this claim is DENIED.
B.

Count 1: State Law Assault and Battery
Howard alleges a state law claim for assault and battery against Chief Hudson. In

Alabama, the elements of an assault and battery claim are:
“‘[A]n intentional, unlawful offer to touch the person of another in a rude or angry
manner under such circumstances as to create in the mind of the party alleging the assault
a well founded fear of an imminent battery, coupled with the apparent present ability to
effectuate the attempt if not prevented.’” …. A successful assault becomes a battery,
which consists of the touching of another in a hostile manner.
Wright v. Wright, 654 So.2d 542, 544 (Ala. 1995). In a civil case, the elements of battery are: 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. Ex parte Atmore
Community Hosp., 719 So.2d 1190, 1193 (Ala. 1998). Additionally, “[a] battery consists in an
injury actually done to the person of another in an angry or revengeful or rude or insolent
manner, as by spitting in the face, or in any way touching him in anger, or violently jostling him
out of the way, or in doing any intentional violence to the person of another.” Surrency v.
21

Harbison, 489 So.2d 1097, 1104 (Ala. 1986). See also Perkins v. City of Creola, 2010 WL
1960915, *18 (S.D. Ala. May 14, 2010) (same).
Under Alabama law, “[s]tate-agent immunity protects state employees, as agents of the
State, in the exercise of their judgment in executing their work responsibilities.” Ex parte Hayles,
852 So.2d 117, 122 (Ala. 2002). Alabama's state-agent immunity doctrine bars suit against law
enforcement officers effecting arrests, except to the extent the officer acted willfully,
maliciously, fraudulently, in bad faith, beyond his legal authority, or under a mistaken
interpretation of law, or if the Constitution or laws of the United States or Alabama require
otherwise. Ex parte Cranman, 792 So.2d 392, 405 (Ala. 2000).11 Indeed, the test for state-agent
immunity is set forth in Cranman, as modified in Hollis v. City of Brighton, 950 So.2d 300 (Ala.
2006). See, e.g., Suttles v. Roy, 2010 WL 2034827, *3-4 (Ala. May 21, 2010) (explaining same).
Under Cranman, state-agent immunity is subject to a burden-shifting framework. The police
officer bears the burden of demonstrating that the plaintiff's claims arise from a function that
would give rise to immunity. Brown, 608 F.3d at 741. When the police officer has shown this,
the burden shifts to the plaintiff to show that the police officer “‘acted willfully, maliciously,
fraudulently, in bad faith, or beyond his or her authority.’” Id.
Alabama Code § 6-5-338(a) provides that “every peace officer ... shall have immunity
from tort liability arising out of his or her conduct in performance of any discretionary function
within the line and scope of his or her law enforcement duties.” Cranman elaborated as follows:
“[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 .. exercising

11 The Alabama Supreme Court formally adopted the Cranman plurality's state-agent immunity test in Ex
parte Butts, 775 So.2d 173, 177-78 (Ala. 2000).

22

judgment in the enforcement of the criminal laws of the State, including, but not limited to, lawenforcement officers' arresting or attempting to arrest persons....” 792 So.2d at 405 (emphasis in
original). To constitute a “discretionary function,” the defendant must have had at least arguable
probable cause to arrest. Compare Borders v. City of Huntsville, 875 So.2d 1168, 1179-1180,
1181 (Ala. 2003) (not entitled to discretionary immunity) with Wood v. Kesler, 323 F.3d 872,
883 (11th Cir. 2003) (entitled to discretionary immunity).
As noted supra, Chief Hudson was acting within the scope of his discretionary function.
Whether Chief Hudson acted willfully, maliciously, fraudulently, or in bad faith is a matter of
dispute to be decided by a jury. Accordingly, Defendants’ motion on this claim is DENIED.
C.

Count 1: Section 1983 False Arrest
Howard alleges a Section 1983 claim for false arrest against Chief Hudson, in his

individual and official capacities, suggesting that Chief Hudson lacked probable cause to arrest
her and those conducted an unlawful arrest (to which Howard was entitled to resist). (Doc. 39 at
11-16). However, following Howard’s arrest, she was tried for disorderly conduct and resisting
arrest, and was convicted of both charges. While she disagrees with her conviction and claims to
have appealed same and that her appeal was essentially blocked, at present, Howard’s conviction
has not been invalidated. “If [a] plaintiff cannot show that his conviction or sentence has been
invalidated, then [s]he is barred from bringing a § 1983 claim for false arrest.” Simpson v.
Stewart, 386 Fed.Appx. 859, 860 (11th Cir.2010) (citing Heck v. Humphrey, 512 U.S. 477, 486–
487 (1994)). As such, Defendants’ motion on this claim is GRANTED.

23

V.

The City

A.

Count 2: Section 1983
Howard alleges that the City committed violations of her civil rights under Section 1983:

Chief Hudson, while acting under color of law and as an authorized agent of the City, did
“intentionally and deliberately assault and batter” her and “caused her to be falsely arrested
causing a constitutional deprivation of her right to be free from punishment and to due process of
law by the Fourteenth Amendment[.]” (Doc. 1 at 6): Howard asserts that the City violated her
Fourteenth Amendment substantive due process rights by failing to train officers to not assault
and batter citizens, and that the constitutional deprivation was caused by the City’s lack of
training and supervision with regards to officers appropriately interacting with citizens without
causing the deprivation of constitutional rights. (Id. at 6-7) Howard alleges further that the City
“has a history of police actions which conclude with the wrongful detention or physical injury of
African-American pretrial detainees. These constitutional violations stem from an express
failures of policies and/or widespread customs of City of Greensboro police officers.” (Id. at 7).
The City may be a defendant under Section 1983. Municipalities and other local
government entities are considered “persons” for the purposes of the statute and may be subject
to liability. Monell v. Dept. of Social Services of N.Y. City, 436 U.S. 658 (1978). Howard
essentially claims that she suffered a constitutional injury that was caused by “a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.”
However, Howard cannot rely solely upon the theory of respondeat superior to hold the City
liable for Chief Hudson’s actions. Blunt v. Tomlinson, 2009 WL 921093, *5 (S.D. Ala. Apr. 1,
2009); McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). Rather, “to impose § 1983
liability on a municipality, a plaintiff must show: (1) that [her] constitutional rights were
24

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 1289.12 As set forth in Am. Fed'n of Labor & Cong. of Indus. Orgs. v. City of Miami,
FL, 637 F.3d 1178, 1187 (11th Cir. 2011):
…A court's first inquiry in assessing municipal liability is whether there is a direct causal
link between a municipal policy and the alleged constitutional injury. City of Canton v.
Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). “It is not sufficient
for a government body's policy to be tangentially related to a constitutional deprivation.”
Cuesta v. Sch. Bd. of Miami–Dade Co., 285 F.3d 962, 967 (11th Cir.2002). The policy
must be the “moving force” behind the constitutional injury. Id. (quoting Gilmere v. City
of Atlanta, 737 F.2d 894, 901 (11th Cir.1984)). When a municipal policy itself violates
federal law, or directs a municipality to do so, resolving “issues of fault and causation is
straightforward.” Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137
L.Ed.2d 626 (1997). But when that is not the case, determining causation is more
difficult. Id. at 406, 117 S.Ct. 1382. If a facially-lawful municipal action is alleged to
have caused a municipal employee to violate a plaintiff's constitutional rights, the
plaintiff must establish “that the municipal action was taken with ‘deliberate indifference’
as to its known or obvious consequences.” Id. at 407, 117 S.Ct. 1382 (quoting City of
Canton, 489 U.S. at 388, 109 S.Ct. 1197).
While alleging that her constitutional rights were violated, Howard has not presented
sufficient evidence of much else. The entirety of Howard’s evidence to support her Section 1983
claim against the City consists of six (6) pages of Polion’s deposition – to assert that Chief
Hudson’s propensity for unnecessary violence against the citizens of Greensboro was well
known by the Mayor and other elected officials. (Doc. 39 at 22-25). Per Howard, the City was
on notice of Chief Hudson’s violent tendencies yet took no corrective action, instead letting
Chief Hudson continue to physically attack its citizens. However, as already detailed supra, that
portion of Polion’s deposition does not support such a sweeping and conclusory claim by
12 “A policy is a decision that is officially adopted by the municipality, or created by an official of such
rank that he or she could be said to be acting on behalf of the municipality.... A custom is a practice that is so settled
and permanent that it takes on the force of law.” Mingo v. City of Mobile, Ala., 2013 WL 6094674, *9 (S.D. Ala.
Nov. 20, 2013) (citations omitted).

25

Howard, establish that Greensboro had a policy or custom of violating its citizens’ constitutional
rights, or that the Mayor and elected officials had notice of a need to train or supervise Chief
Hudson. Also, Polion’s deposition is insufficient to establish notice on the part of the City that
additional training was needed in a specific area relevant to the facts of this case. Moreover,
Howard has not submitted any evidence that establishes an alleged inadequacy in the City’s
training program. In sum, Howard has failed to submit sufficient evidence to support her Section
1983 claim against the City. As such, Defendants’ motion is GRANTED as to this claim.
B.

Counts 3-5: State Law Claims for Negligence
Howard alleges state law claims against the City for negligent training, supervision, and

retention. Specifically, Howard alleges that the City negligently, wantonly, or consciously failed
to train and supervise its police officers in proper treatment of its citizens while “knowing that
they had caused injuries in the past by using excessive force to effectuate arrest and for falsely
arresting citizens[],” that from failing to properly train and supervise its officers, injury would
likely or probably result, and this failure proximately caused great physical injury to her. (Doc. 1
at 7-9).

Additionally, for negligent retention Howard alleges that the City had a duty to

discharge Chief Hudson who had in the past improperly violated the rights of the City’s citizens
by use of excessive force and false arrest, but negligently or wantonly or consciously failed to
discharge him and so violated Howard’s constitutional rights, doing so “knowing that they had
caused injuries in the past by using excessive force to effectuate arrest and for falsely arresting
citizens[],” and this failure proximately caused great physical injury to Howard. (Id. at 9-10).
However, on summary judgment Howard failed to present any evidence of the City’s
negligent training, supervision, and/or retention. In fact, Howard fails to even address these
claims in response to Defendants’ motion, indicating abandonment of same. See, e.g., Howard v.
26

City of Demopolis, Ala., 984 F. Supp. 2d 1245, 1252 and 1260 (S.D. Ala. 2013) (finding
similarly with regard to negligence claims against the City of Demopolis).13 Regardless, Howard
failed to allege or identify, in the Complaint, the existence of a municipal policy or custom that
allegedly caused her injuries. Instead, Howard simply alleges in conclusory fashion (and in a
separate count) that there are “express failures of policies and/or widespread customs” of City
officers. (Doc. 1 at 7). Additionally, Howard failed to present any evidence that the City is not
protected by immunity, much less affirmative proof that Chief Hudson’s alleged incompetence
was known by the City. As such, Defendants’ motion on this claim is GRANTED.
VI.

Conclusion
Accordingly, it is ORDERED that Defendants’ motion for summary judgment (Docs.

30-33) is GRANTED in part and DENIED in part, and the Defendants’ Objections (Docs. 4344) are OVERRULED in part and SUSTAINED in part, as set forth herein.14
DONE and ORDERED this the 30th day of October 2014.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

13 See also e.g., 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 …. the onus is upon the parties to formulate arguments; grounds alleged in
the complaint but not relied upon in summary judgment are deemed abandoned[]”); Brasseler, U.S.A. I, L.P. v.
Stryker Sales Corp., 182 F.3d 888, 892 (Fed.Cir.1999) (It could properly treat as abandoned a claim alleged in the
complaint but not even raised as a ground for summary judgment, explaining that where plaintiff failed to address a
claim in its opposition to defendant’s motion and “did not raise the theory in its own motion for summary
judgment,” the Eleventh Circuit properly treated the claim as abandoned).
14 In so finding, Howard’s request for oral argument is DENIED.

27