Rogers v. City Of Selma et al
ORDER GRANTING Dfts' 21 Motion for Summary Judgment as set out. Signed by Senior Judge Callie V. S. Granade on 4/8/2016. (tot)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
MICHAEL DONALD ROGERS
CITY OF SELMA, et al.,
) CIVIL ACTION NO. 14-586-CG-M
Plaintiff Michael Donald Rogers (“Plaintiff”) brought suit against the City of
Selma (the “City”), Police Chief William Riley (“Chief Riley”), Officer Curtis
Muhannad (“Muhannad”), and Detective Ray Blanks (“Blanks”) (collectively,
“Defendants”) under 42 U.S.C. §1983 and various state law claims. (Doc. 1).
Presently, this matter is before the Court on Defendants’ Motion for Summary
Judgment and supporting brief (Docs. 21, 22), Plaintiff’s response (Doc. 25), and
Defendants reply (Doc. 27). This matter is now ripe for resolution. Based on the
following, Defendants’ motion is due to be GRANTED.
I. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a) instructs that “[t]he 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.” The trial
court’s mission is to “determine whether there is a genuine issue for trial” and not
to “weigh the evidence.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
The burden is on the moving party to show that there is no genuine dispute
as to any material fact. Id. at 256. In conducting its summary judgment analysis,
the Court must construe all evidence “in the light most favorable to the party
opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
After the movant meets its burden, the burden shifts to the nonmoving party
“to make a showing sufficient to establish the existence of an element essential to
that party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the
nonmoving party fails to do so, the “complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other facts
immaterial.” Id. at 323. Further, Rule 56 “requires the nonmoving party to go
beyond the pleadings and by [his] own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is
a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). There is
no genuine issue for trial “[w]here the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
II. PROPER EVIDENCE TO OPPOSE SUMMARY JUDGMENT
As an initial matter, Plaintiff offers the self-described “affidavit” of Dorother
Rogers, Plaintiff’s wife, and Faya Toure, Plaintiff’s attorney, as evidence opposing
Defendants’ Motion for Summary Judgment. See (Doc. 25-9; Doc. 26). An affidavit
or declaration can be “used to support or oppose a motion” as long as either are
“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 matter stated.”
Fed. R. Civ. P. 56(c)(4). An affidavit has three elements: “(1) a written oath
embodying the fact as sworn to by the affiant; (2) the signature of the affiant; and
(3) the attestation by an officer authorized to administer the oath that the affidavit
was actually sworn by the affiant before the officer.” 3 Am. Jur. 2d Affidavits § 8;
see also Auito v. Auito, 704 S.E. 2d 789, 790 (Ga. 2011) (laying out the three
elements of an affidavit). Of particular importance is the third element. Under
Alabama law, a notary public may “[a]dminister oaths in all matters incident to the
exercise” of his or her office. Ala. Code § 36-20-73 (1975). And when an officer does
not administer an oath for the affiant in relation to the statement, it is improper
evidence to oppose a motion for summary judgment. See Dudley v. City of
Monroeville, Ala., 446 Fed. App’x 204, 207 (11th Cir. 2011) (“Unsworn statements
do not meet the requirements of Rule 56, so the district court could not—and
properly did not—rely on the content of the [unsworn] statement.”) (citing Carr v.
Tatangelo, 338 F.3d 1259, 1273 n. 26 (11th Cir. 2003)); see also Estrella v. Ltd.
Financial Services, LP, 2015 WL 6742062, at *3 (M.D. Fla. Nov. 2, 2015).1
In the absence of an oath affirming an affidavit, federal law recognizes
certain unsworn declarations as competent evidence to oppose a motion for
Also, as Defendants assert, there is authority from our sister circuit that an
unsworn declaration or affidavit is not competent summary judgment evidence. See
Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1998) (“It is a settled
rule in this circuit that an unsworn affidavit is incompetent to raise a fact issue
precluding summary judgment.”)
summary judgment. 28 U.S.C. § 1746. Section 1746 directs that whenever a rule
requires “any matter” be supported by a “sworn declaration, … oath, or affidavit”
such mater may be supported, “with like force and effect,” by an unsworn
declaration. Such unsworn declaration must be “subscribed by [the declarant], as
true under penalty of perjury, and dated, in substantially the following form:”
(2) If executed within the United States, its territories, possessions, or
commonwealths: “I declare (or certify, verify, or state) under penalty of
perjury that the foregoing is true and correct. Executed on (date).
Id. Strict compliance with § 1746 is not required as long as the unsworn declaration
“substantially” satisfies the statute. See United States v. Roberts, 308 F.3d 1147,
1154–55 (11th Cir. 2002), cert. denied, 538 U.S. 1064 (2003) (finding § 1746 met
when the unsworn declaration included the disclaimer “to the best of [the
declarant’s] knowledge, information or belief”); Schroeder v. McDonald, 55 F.3d 454,
460 n.10 (9th Cir. 1995) (finding § 1746 met where it stated that “the facts stated in
… the complaint [are] true and correct as known to me”).
In this case, both statements include a summary of what each individual
alleges occurred during the time surrounding Plaintiff’s arrest. At the close of each
document, an Alabama Notary Public completed the following acknowledgement:
On this, the 4th day of December, 2015, before me a notary public, the
undersigned officer, personally appeared [Faya Toure (Doc. 25-9);
Dorother Rogers (Doc. 26)], known to me (or satisfactorily proven) to be
the person whose name is subscribed to the within instrument, and
acknowledged that he executed the same for the purposes therein
contained. In witness hereof, I hereunto set my hand and official seal.
(Doc. 25-9; Doc. 26). Defendants agree that a party may oppose summary judgment
with an affidavit or declaration. (Doc. 27, p. 2). But Defendants argue that neither
statement is a valid affidavit or declaration. Id. Thus, Defendants argue that the
Court should not consider the two self-described “affidavits.” Id. at 4. The Court
agrees. Neither witness in her self-described “affidavit” declared her statement to
be true, believed to be true to the best of her ability, made the statement under
oath, or made it under penalty of perjury. All the notary did was acknowledge that
the person who signed the statement was actually who she proclaimed herself to be.
Thus, neither statement is proper evidence to oppose a motion for summary
But this decision is not to be interpreted as creating an insurmountable
hurdle or hypertechnical formality in opposing a motion for summary judgment that
serves no legitimate purpose. The assurance provided by requiring a witness to
make a statement under oath or under penalty of perjury is critical. Without either,
an affiant or declarant is free to fabricate a genuine issue of material fact with no
fear of recourse. Moreover, this decision should not be interpreted to say that a
timely motion to correct such an error would be denied in every case. But here,
three months have passed since Defendants made the deficiency known and
Plaintiff has neither corrected the error not requested the opportunity to correct the
error.2 Therefore, the Court will not consider either statement in making its
It bears mentioning that the self-described “affidavit” is not the only problem in
Plaintiff’s response and supporting material. Civil Local Rule 7(e) directs that a
motion in opposition to summary judgment “must not exceed thirty (30) pages.”
General Local Rule 5(a)(1) states that the text of the motion “must be double-spaced
The chain of events leading up to Plaintiff’s arrest began when Butler Truax
Jewelers of Selma, Alabama was burglarized on three different occasions during
November 2013. (Doc. 22-7). In the subsequent investigation, Detective Charles
Clark of the Selma Police Department obtained surveillance footage depicting the
same person, later identified as Fortune Hoppins, committing one of the burglaries.
Id. After his arrest, Hoppins implicated Dorother Rogers, Plaintiff’s wife, as his
getaway driver. Id. Hoppins’s statement and surveillance footage of one of the
burglaries indicated that Dorother Rogers drove her Nissan Altima during the
commission of that burglary. (Doc. 22-7; Doc. 25-3, p. 9, ll. 3–4). Based on this
information, police contacted Dorother Rogers and asked her to come to the station
for an interview. Mrs. Rogers drove a rented Nissan Sentra to the station for the
interview. Police arrested Mrs. Rogers after interviewing her. While Mrs. Rogers
was at the station, officers went to her home and impounded the Nissan Altima.
….” And Civil Local Rule 56(b) provides that “..The non-movant’s brief must
include: (1) all facts relied upon, each supported by a specific, pinpoint citation to
the record; (2) all challenges to the movant’s asserted facts; and (3) argument
supported by legal authority as appropriate.” Plaintiff’s counsel, who opens her selfdescribed “affidavit” with the qualifier that she has “been a practicing attorney in
the State of Alabama for over 40 years,” submitted a twenty-one page, single-spaced
brief containing a copious amount of uncited assertions of both fact and law.
Furthermore, the Court finds it problematic that Plaintiff’s counsel appears not
only to be an advocate, but also a material witness in this case based on her selfdescribed “affidavit.” See Putman v. Head, 268 F.3d 1223, 1246 (11th Cir. 2001)
(“[R]ules of professional conduct generally disapprove of lawyers testifying at
proceedings in which they are also advocates.”)
(Doc. 22-1, p. 36, ll. 3–18; Doc. 25-3, p. 16, ll. 2–4). Plaintiff Rogers was at the house
when officers impounded the Altima. (Doc. 25-3, p. 16).
Later, Plaintiff went to the police station to post his wife’s bail and found out
that she had been charged with burglary based on her allegedly driving the Altima
during the burglaries. (Doc. 22-1, p. 37, ll. 10–13). After making bail, Mrs. Rogers
asked the processing clerk for her property, which included the Altima key. (Doc.
25-2, p. 10, ll. 20–23). Unable to release the property without officer approval, the
clerk called Detective Clark. Detective Clark came to the processing desk to give
Dorother back her property. The clerk testified that she did not remember the
conversation that took place between Mrs. Rogers and Clark but does remember
Clark returning the Altima keys to her. Id. at 13, ll. 14–15. Officer Walter Curtis
testified that he did not see Mrs. Rogers get the Altima keys but did know that she
asked for them and got them somehow. (Doc. 25-5, p. 20, ll. 6–16). Clark testified
that he gave Mrs. Rogers the rental car key and permission to remove the rental car
but not the Altima. (Doc. 25-3, p. 35, ll. 8–18). Either way, Plaintiff was not
present for the conversation between Clark and Mrs. Rogers, neither was Officer
Muhannad or Detective Blanks. When Plaintiff and Mrs. Rogers left the police
station, he drove the Altima out of the impound lot and home. (Doc. 22-1, p. 51, ll.
21–p. 52, ll. 3).
Approximately thirteen days later, officers discovered the Altima missing.
(Doc. 22-3, p. 3). Officers began reviewing the impound lot surveillance recordings
and discovered that Plaintiff removed the Altima on the same day he bailed his wife
out of jail: January 10, 2014. (Doc. 22-3, p. 3; Doc. 25-5, p. 27, ll. 16–18). At around
8:00 a.m. on the morning of January 27, 2014, five officers, including Officer
Muhannad, Detective Blanks and Detective Jones, went to Plaintiff’s home. (Doc.
25-4, p. 9, ll. 20–23; Doc. 22-3, p. 3). Upon arrival, officers found the Altima on
Plaintiff’s property. Officers knocked on the door, and Plaintiff answered, dressed
in his pajamas. (Doc. 22-1, p. 59, ll. 4–17). They informed him they needed to speak
with him at the station, and Plaintiff asked to change into jeans before they left. Id.
Officers escorted Plaintiff into his bedroom to change. Id. Detective Blanks then
handcuffed Plaintiff and took him to the station. Id. at 67, ll. 1–3. Upon arrival, he
was placed in an interview room where Detectives Blanks and Jones began
administering a Miranda warning. (Doc. 22-2; Doc. 25-7, p. 9, ll. 18–23). Before he
could be could be interviewed, Plaintiff’s attorney arrived and instructed police to
cease the interview.
At approximately 10:20 a.m. that same morning, police arrested Plaintiff for
evidence tampering. He made bail that afternoon and was released.3 (Doc. 22-5).
That same day, an arrest report and incident report were completed that indicates
Blanks is the reporting officer. (Doc. 22-3). Subsequently, the City dismissed the
evidence tampering charge against Plaintiff due to missing paperwork. (Doc. 22-
As the Court notes below, there is uncertainty in the deposition testimony
regarding the identity of the arresting officer. Further, there is dispute of whether
Plaintiff was under arrest before or after his attorney arrived at the station. The
Miranda warning report is the only evidence offered of the time at which Plaintiff
was arrested, regardless of whether it was before or after his attorney’s arrival. See
(Doc. 22-5). Since Plaintiff offers no evidence to refute the time of arrest being
10:20 a.m., it is presumed undisputed.
12). Based on his arrest, Plaintiff brought suit alleging violations of both federal
and state law.
IV. LEGAL ANALYSIS OF FEDERAL CLAIMS
Plaintiff’s § 1983 federal claims contain both an individual capacity aspect
(unlawful arrest and false imprisonment -- Count I, malicious prosecution -- Count
VI, and excessive force -- Count VII) and an official capacity aspect (negligent
training and supervision -- Count V).
A. Section 1983 Individual Capacity Claims
Section 1983 provides a federal forum for citizens to remedy deprivations of
civil liberties. 42 U.S.C. § 1983. However, a government official who is sued in his
or her individual capacity under § 1983 may seek summary judgment on the ground
that he or she is entitled to qualified immunity. Crosby v. Monroe County, 394 F.3d
1328, 1332 (11th Cir. 2004). Muhannad and Blanks seek the protection of qualified
immunity for the individual capacity claims brought against them. As the Supreme
Court explained, qualified immunity protects government officials performing
discretionary functions from civil trial and liability if their conduct violates no
“clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “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 plainly incompetent or one who is knowingly violating the federal
law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal citation
To receive qualified immunity, the public official “must first prove that he
was acting within the scope of his discretionary authority when the allegedly
wrongful acts occurred.” Id. Once proven, “the burden shifts to the plaintiff to show
that qualified immunity is not appropriate.” Id. Under Saucier v. Katz, the
“threshold question” is: “[t]aken in the light most favorable to the party asserting
the injury, do the facts alleged show the officer's [discretionary] conduct violated a
constitutional right?” 533 U.S. 194, 201 (2001). Only if the answer to that question
is affirmative may the court proceed to determine “whether the right was clearly
established.” Id. A plaintiff can establish that a right was clearly established and
provides notice or warning to officers that the conduct was unconstitutional by
submitting fact-specific precedents, or demonstrating that the very conduct “lies so
obviously at the very core of what the Fourth Amendment prohibits that the
unlawfulness of the conduct was readily apparent.” Vinyard v. Wilson, 311 F.3d
1340, 1355 (11th Cir. 2002). The Court notes that the two-step inquiry established
in Saucier is no longer mandatory. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
If no constitutional right was violated, the court need not inquire further. Id. If,
however, a constitutional violation occurred, the court must then determine
whether the right was clearly established. Id.
1. Unlawful Arrest (Count I)
As his anchor claim, Plaintiff alleges that his Fourth Amendment right
against unreasonable seizure was violated because he was unlawfully arrested. It
is well established that an arrest is within the discretionary authority of a police
officer. Wood v. Kesler, 323 F.3d 872, 877 (11th Cir. 2003) (finding that a trooper
was “within the course and scope of his discretionary authority when he charged
and arrested” someone). And it is undisputed that an “arrest without probable
cause to believe a crime has been committed violates the Fourth Amendment.”
Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997) (citing Von Stein v.
Brescher, 904 F.2d 572, 579 (11th Cir. 1990)). “Probable cause exists where the
facts and circumstances within the collective knowledge of the law enforcement
officials, of which they had reasonably trustworthy information, are sufficient to
cause a person of reasonable caution to believe an offense has been or is being
committed.” United States v. Jimenez, 780 F.2d 975, 978 (11th Cir. 1986) (internal
quotations and citation omitted). “Probable cause does not require the same type of
specific evidence of each element of the offense as would be needed to support a
conviction.” Adams v. Williams, 407 U.S. 143, 149 (1972). Instead, it is a nontechnical, pragmatic approach that evaluates the facts of the case using the totality
of the circumstances. Maryland v. Pringle, 540 U.S. 366, 370 (2003). “While an
officer who arrests an individual without probable cause violates the Fourth
Amendment, this does not inevitably remove the shield of qualified immunity.”
Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1137 (11th Cir. 2007).
To be shielded by qualified immunity from a claim of unlawful arrest, an
officer need not have actual probable cause, but only arguable probable cause.
Holmes v. Kucynda, 321 F.3d 1069, 1079 (11th Cir. 2003). Arguable probable cause
exists where “reasonable officers in the same circumstances and possessing the
same knowledge as the [d]efendants could have believed that probable cause existed
to arrest [the] [p]laintiff.” Kingsland v. City of Miami, Fla., 382 F.3d 1220, 1232
(11th Cir. 2004) (citing Von Stein, 904 F.2d at 579). “Indeed, it is inevitable that
law enforcement officials will in some cases reasonably but mistakenly conclude
that probable cause is present, and in such cases those officials should not be held
personally liable.” Von Stein, 904 F.2d at 579 (internal quotations and ellipses
omitted); see also Hunter v. Bryant, 502 U.S. 224, 227 (1991) (“Even law
enforcement officials who reasonably but mistakenly conclude that probable cause
is present are entitled to immunity.”) (internal quotations and citation omitted).
This objective standard does not evaluate the officer’s subjective intent or beliefs.
Rushing v. Parker, 599 F.3d 1263, 1266 (11th Cir. 2010). Thus, “even law
enforcement officials who reasonably but mistakenly conclude that probable cause
is present are entitled to immunity.” Holmes, 321 F.3d at 1079 (internal quotations
and citation omitted). The plaintiff bears the burden to “demonstrate that no
reasonable officer could have found probable cause under the totality of the
circumstances.” Kingsland, 382 F.3d at 1232.
Whether an officer possesses arguable probable cause depends on the
elements of the alleged crime and the operative fact pattern. Skop, 485 F.3d at
1137–38. Like the standard for probable cause, arguable probable cause does not
require an arresting officer to prove every element of a crime before making an
arrest. Scarbrough v. Myles, 245 F.3d 1299, 1303 (11th Cir. 2001). Thus, the
inquiry is “whether [the defendant] violated clearly established law in making the
arrests based on the objective factors that gave rise to his probable-cause
determination and not whether the arrestees’ actions actually constituted a crime.”
Id. at 1303 n. 8.
Under Alabama law, “[a] person commits the crime of tampering with
physical evidence if, believing that an official proceeding is pending or may be
instituted, and acting without legal right or authority, he … [d]estroys, mutilates,
conceals, removes or alters physical evidence with intent to impair its use, verity or
availability in the pending prospective official proceeding….” Ala. Code § 13A-10129(a)(1) (1975). Tampering with physical evidence is a misdemeanor. Id.
Plaintiff argues that Muhannad, “the real arresting officer,” is liable under §
1983 for unlawful arrest. (Doc. 25, p. 8). Plaintiff bases this on Officer Curtis
allegedly telling Muhannad before Plaintiff was arrested that he “legally removed
the subject vehicle from police premises.” (Doc. 25, p. 7; Doc. 25-5, p. 26, l. 5–p. 27,
l. 11). Defendants counter that any conversation that took place between
Muhannad and Officer Curtis took place the day after Plaintiff’s arrest (Doc. 22, p.
11; Doc. 25-4, p. 34, ll. 14–16),and moreover, that Muhannad “did not arrest
Plaintiff [and] did not make the decision to arrest him” (Doc. 21, p. 12) and that
therefore he cannot be liable for unlawful arrest.
Reading this evidence in Plaintiff’s favor, there is factual a question as to the
when the conversation between Muhannad and Officer Curtis occurred. If this was
the only question, it would be enough to survive summary judgment on the
unlawful arrest claim, but it is not. A more pivotal issue exists. Was Muhannad
the arresting officer? Plaintiff’s response is filled with assertions unsupported by
fact that Muhannad is the arresting officer. The only assertion concerning
Muhannad being the arresting officer that Plaintiff supports with an evidentiary
cite is the assertion that Detective Blanks testified that “Muhannad made the
decision to arrest Plaintiff.…” (Doc. 25, p. 8). After examining Plaintiff’s Blanks’
testimony in a light most favorable to Plaintiff, the Court finds that Blanks’
testimony does not support Plaintiff’s proposition. In pertinent part, the following
exchange took place between Plaintiff’s attorney and Blanks regarding the events
leading up to Plaintiff’s arrest:
Q: (Plaintiff’s Attorney): In fact, he wasn’t arrested until I told you not
to question him because I was his attorney; is that correct?
A: (Blanks): He was not placed under arrest until Detective Clark
decided to arrest him.
Q: But that was after I told you not to question him.
. . .
Q: Did you talk to Officer Clark that day?
A: Yes, I did.
Q: At what point did you talk to him?
A: After the Miranda was read, he decided that we had probable cause
to place him under arrest.
Q : Did he talk to you before that decision?
A : No.
Q: Who did he talk to?
A: He was talking back and forth with Lieutenant Muhannad.
Q: Okay. So after I arrived Clark and Muhannad had a conversation
and decided to arrest him, even though there had been no questioning?
A: I guess so, ma’am.
(Doc. 25-7, p.10 l. 18 thru p.11, l. 4; p.12, l. 18 thru p.13, l. 13). At best, Blanks
“guess” is an assumption that Muhannad had taken part in the decision to arrest,
which Plaintiff’s attorney invited with her leading question, and not an affirmative
answer, particularly since Blanks identified Detective Clark as the one who made
the decision to arrest. Beyond this, no witness testified that Muhannad arrested
Moreover, the incident report and arrest document do not reflect that
Muhannad is the arresting officer. (Doc. 22-3; Doc. 22-5). It is the arresting officer
that is listed on and completes the arrest report and complaint. (Doc. 25-4, p. 44, ll.
3–8). Blanks is the listed officer.4 Plaintiff himself testified that Officer Muhannad
had no involvement in his arrest other than being at the station when he was
brought in. (Doc. 22, Ex.1, P.68, ll. 1-23; p.70, l. 16 thru p.71, l. 4). Nor did Plaintiff
dispute in his deposition testimony that Blanks and Jones were the arresting
officers. (Id., p.71, l. 23 thru p.72, l. 5). Because the evidence does not support the
Additionally, the incident report lists Clark as the assisting officer (Doc. 22-3), and
the arrest report lists Jones as an arresting officer (Doc. 22-5). Neither is named as
defendants in this matter, so the Court does not consider their liability.
assertion that Muhannad made the arrest, the claim against him for unlawful
arrest cannot survive summary judgment. See Brown v. City of Huntsville, 608
F.3d 724, 737 (11th Cir. 2010). Defendants’ motion is GRANTED in regard to
Plaintiff’s claim of unlawful arrest against Muhannad.
The complaint also names Blanks as a defendant in the § 1983 claim of
unlawful arrest (Doc. 1, pp. 2–3). But in his response to the motion for summary
judgment, Plaintiff focuses on Muhannad as the arresting officer. In doing so,
Plaintiff concedes that Blanks was not the arresting officer. (Doc. 25, p. 8) (“Other
Defendants like Chief Riley and Blanks participated in the cover-up although they
did not participate in the arrest.”).5 However, deposition testimony from several
police officers, although contradictory, raises the possibility that Blanks was the
arresting officer. See (Doc. 25-4, p. 64, ll. 1–4) (Muhannad testifying that Detective
Clark made the arrest); (Doc. 25-7, p. 10, ll. 21–22) (Blanks testifying that Detective
Clark made the arrest); (Doc. 25-3, p. 47, ll. 2–4) (Clark testifying that he did not
make the arrest); (Doc. 25-6, p. 10, ll. 11–15) (Jones testifying that Blanks made the
Throughout his response, Plaintiff alleges a “cover up” by Defendants to shield
Muhannad from liability. Beyond the contradictory depositions about who arrested
Plaintiff, he offers nothing but bald speculation regarding this “cover up,” which is
not considered in this Order. See Cooper v. Southern Co., 390 F.3d 695, 745 (11th
Cir. 2004) (holding that summary judgment was appropriate where the plaintiff
relied on conclusory assertions that were based entirely on her own subjective
beliefs), overruled on other grounds Ash v. Tyson Foods, Inc., 546 U.S. 454, 457–58
(2006); Stewart v. Booker T. Washington Ins., 232 F.3d 844, 850 (11th Cir. 2000)
(holding that “bare and self-serving” allegations that are not based on personal
knowledge are inadequate to survive summary judgment).
arrest). In addition, the arrest report list Blanks and Jones as the arresting
officers. (Doc. 22-5). Therefore, the Court finds it necessary to evaluate whether
Blanks, as the arresting officer, is due summary judgment.
In support of summary judgment, Blanks raises the defense of qualified
immunity. Assuming Blanks is the arresting officer, he acted with discretionary
authority. See Wood, 323 F.3d at 877. Thus, the burden shifts to Plaintiff to show
that qualified immunity is inappropriate. In other words, do the facts, taken in a
light most favorable to Plaintiff, show that Blanks acted without at least arguable
Here, Plaintiff was aware that his wife was the alleged getaway driver who
used the Nissan Altima in three burglaries. (Doc. 22-1, p. 48, ll. 18–20). He also
knew that that the Altima was impounded as a result. Id. When the Altima was
discovered missing, Blanks obtained information that helped form probable cause
from officers whom viewed surveillance footage of Plaintiff removing the Altima
from police impound. See Madiwale v. Savaiko, 117 F.3d 1231, 1324 (11th Cir.
1997) (finding the collective knowledge of law enforcement officials derived from
reasonably trustworthy information can establish probable cause). Investigator
Cole and Sergeant Hardy had informed Blanks that Plaintiff knew the Altima
“could not be released [from impound] and was being held for processing.” (Doc. 223, pp. 2–3) When Blanks went to Plaintiff’s home, he found the Altima. (Doc. 22-3,
p. 3) Blanks detained Plaintiff, escorted him to the police station, and subsequently
placed him under arrest. Id.
Objectively considering all these facts under the totality of circumstances
Plaintiff has not shown that Blanks did not have probable cause to believe that
Plaintiff. Probable cause, or at least arguable probable cause, existed that Plaintiff
tampered with physical evidence. Nonetheless, Plaintiff posits that because the
elements of the applicable offense were not present at the time of the arrest
probable cause was an impossibility. (Doc. 25, p. 6). This argument misses its
mark. The evidence it takes to support a conviction is not the litmus test for
probable cause. Adams v. Williams, 407 U.S. 143, 149 (1972); see also Scarbrough,
245 F.3d at 1302–03.
Additionally, Plaintiff’s attempt to align his position with the unlawful arrest
in Grider v. City of Auburn, Alabama, 618 F.3d 1240 (11th Cir. 2010), is unavailing.
This case is materially distinguishable from Grider. In Grider, the Eleventh Circuit
upheld the denial of qualified immunity on a motion for summary judgment. 618
F.3d at 1258. In his opposition, Grider unambiguously denied offering money in an
alleged bribery. Id. Assuming Grider’s version of events true, the court found the
denial created a genuine issue of material fact of whether the officer fabricated the
bribery allegation that formed the basis of arguable probable cause. Here, Plaintiff
admits to taking the car and has supplied no probative evidence that Blanks knew
of Officer Curtis’ statement about the Altima being legally removed. In fact,
Plaintiff cites evidence that Blanks was not present when the statement was made.
(Doc. 25, p. 8) (citing Doc. 25-2, p. 14, ll. 14–15 (Smith testifying that she doesn’t
remember seeing Blanks present for Curtis’ statement)). Therefore, Plaintiff had
not shown that a reasonable officer possessing the information Blanks possessed
would not find probable cause. Based on this, Blanks is entitled to qualified
immunity and Defendants’ Motion for Summary Judgment on Plaintiff’s unlawful
arrest claim against Blanks is GRANTED.
2. False Imprisonment (Count II)
As an analogous claim under his allegation of unlawful arrest, Plaintiff
contends Defendants are liable for false imprisonment in violation of the Fourth
Amendment.6 (Doc. 1, p. 2). “A false imprisonment claim under section 1983 is
based on the protection of the Fourteenth Amendment against deprivations of
liberty without due process of law.” Ortega v. Christian, 85 F.3d 1521, 1527 (11th
Cir. 1996) (citing Baker v. McCollan, 443 U.S. 137, 142 (1979)). When probable
cause is lacking to make the arrest, “the arrestee has a claim under section 1983 for
false imprisonment based on the detention pursuant to that arrest.” Id.
As discussed above, probable cause existed to detain Plaintiff. Plaintiff failed
to put forth substantial and probative evidence that disputes the claim of probable
cause. Therefore, as a matter of law, Defendants are GRANTED summary
judgment on Plaintiff’s unlawful imprisonment claim.
3. Malicious Prosecution (Count VI)
It is unclear whether Plaintiff brought a cause of action for false imprisonment
strictly under state law or under both state and federal law. The caption of Count
Two indicates state law and Plaintiff cites the applicable Alabama statute.
However, he also alleges that Defendants’ conduct violated § 1983 in the same
count. Therefore, the Court will address the federal aspect of this claim, too. The
Court addresses the state law claim for false imprisonment infra at p. 31 et seq.
Plaintiff also alleges a § 1983 claim of malicious prosecution based on his
arrest and subsequent charge of evidence tampering.7 (Doc. 1, p. 6). The Eleventh
Circuit “has identified malicious prosecution as a violation of the Fourth
Amendment and a viable constitutional tort cognizable under § 1983.” Wood v.
Kesler, 323 F.3d 872, 881 (11th Cir. 2010); accord Knellsen v. Mills, 517 F.3d 1232,
1237 (11th Cir. 2008). A viable § 1983 malicious prosecution claim requires a
plaintiff to prove two things: (1) the elements of a 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). The common law tort of malicious prosecution has four elements: “(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.
Alabama’s elements for malicious prosecution follow the common law elements.
Delchamps, Inc. v. Bryan, 738 So. 2d 824, 831–32 (Ala. 1999).
As established above, an arrest becomes constitutionally unreasonable if done
without probable cause. Madiwale, 117 F.3d at 1324. Therefore, if probable cause
In their reply, Defendants argue that Plaintiff added a state law malicious
prosecution claim in his response to their motion for summary judgment and
abandoned his federal malicious prosecution claim. Although Plaintiff spells out his
malicious prosecution claim in his state law section of his response, he cites Wood v.
Kesler, 323 F.3d 872 (11th Cir. 2003), which dealt with a § 1983 claim of malicious
prosecution. Thus, Plaintiff’s incorporation of this response in the state law section
is likely in error. The Court will evaluate the response against Defendants’ §1983
malicious prosecution argument.
can be shown, a § 1983 malicious prosecution claim fails. Kjellsen, 517 F.3d at
1237. Also, as with a claim of unlawful arrest, an officer raising the defense of
qualified immunity must only show arguable probable cause to defeat a malicious
prosecution claim. Grider, 618 F.3d at 1257 n. 25 (applying the “same ‘arguable
probable cause’ standard in the qualified immunity context” for a § 1983 malicious
Defendants again raise the defense of qualified immunity. It has been
established that probable cause, or at least arguable probable cause, existed. This
is enough to bar Plaintiff’s § 1983 malicious prosecution claim. But even it was not,
Plaintiff’s malicious prosecution claims fails for another reason. The deprivation of
liberty alleged in a malicious prosecution claim must arise in conjunction with the
judicial proceeding. Kingsland, 382 F.3d at 1235. “In the case of a warrantless
arrest, the judicial proceeding does not begin until the party is arraigned or
indicted.” Id. Therefore, an arrest is an insufficient deprivation of liberty because it
occurred before the arraignment and “was not one that arose from malicious
prosecution as opposed to false arrest.” Id. The only deprivation of liberty alleged
is the point of arrest. A few hours later Plaintiff made bond and was released.
Plaintiff presented no evidence that he was detained after arraignment.
Therefore, as a matter of law, Defendants’ are GRANTED summary
judgment on Plaintiff’s malicious prosecution claim.
4. Excessive Force (Count VII)
In conjunction with his claim of unlawful arrest, Plaintiff contends that the
force used against him was unconstitutionally excessive. (Doc. 1, p. 8). Defendants
counter with a claim of qualified immunity and argue that simply being handcuffed
and placed in a police car is not excessive. (Doc. 22, p. 17). It is agreed that the
Fourth Amendment prohibits officers from using more force than is “objectively
reasonable” under the circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989).
A court, in evaluating this claim, must presume that the plaintiff’s version of events
is true. Saucier, 533 U.S. at 201. The Supreme Court described the “objectively
reasonable” standard to be applied in excessive force cases as a “careful balancing of
the nature and quality of the intrusion on the individual’s Fourth Amendment
interest against the countervailing governmental interests at stake.” Graham, 490
U.S. at 396 (internal quotations omitted).
Despite this protection, the Fourth Amendment recognizes some necessary
degree of physical force in an arrest. Id.; Durruthy v. Pastor, 351 F.3d 1080, 1094
(11th Cir. 2003) (“This circuit has made clear that some use of force by a police
officer when making a custodial arrest is necessary and altogether lawful,
regardless of the severity of the alleged offense.”) And the proper degree of force
requires “careful attention to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. The 20/20
vision of hindsight is not the proper measure to judge reasonableness. Instead, it is
judged from the perspective of the officer on the scene and must consider the fact
that officers are often forced to make split second decisions in often uncertain and
rapidly evolving situations. Id. “[T]o determine whether the amount of force used
by a police officer was proper, a court must ask whether a reasonable officer would
believe that this level of force is necessary in the situation at hand” Lee v. Ferraro,
284 F.3d 1188, 1197 (11th Cir. 2002) (internal quotations omitted).
Given that some force is necessary to complete an arrest, the Eleventh
Circuit recognized that “the application of de minimis force, without more, will not
support a claim for excessive force in violation of the Fourth Amendment.” See
Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000). But the issue of de minimis
force is not the same in an unlawful arrest situation. Bashir v. Rockdale County,
445 F.3d 1323, 1332 (11th Cir. 2006). In such a case, any force is excessive. Id.
And “[u]nder this Circuit’s law …, 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.” Id. at 1331. Therefore, when there is a claim that the arrest
or detention was illegal, the excessive force claim must present a “discrete
constitutional violation relating to the manner in which an arrest was carried out,”
which “is independent of whether law enforcement had the power to arrest.” Id. at
1332. Such a rule is based on the rationale that to allow recovery for damages
based on the illegal arrest and excessive force individually “would allow [a plaintiff]
to receive double the award for essentially the same claims.” Id.
Plaintiff maintains that an objective interpretation of the facts show
summary judgment should be denied. (Doc. 25, p. 11). He avers that the force used
was excessive because “he was handcuffed and shoved into a police car,” despite
being accused of a misdemeanor, having no history of violence or criminal behavior,
and not resisting. Id. Thus, “any force under these circumstances can be arguably
excessive.” Id. In support of his claim, Plaintiff relies on Tennessee v. Garner, 471
U.S. 1 (1985). But what Plaintiff fails to consider is that a claim of “any force”
applied being excessive equates to a de minimis force claim, which fails if probable
cause is found. As established supra, sufficient probable cause, or at least arguable
probable cause, was present. Thus, handcuffing and placing Plaintiff in the police
car is within the constitutional boundaries. Nolin, 207 F.3d at 1258 n. 4 (finding
officer who shoved arrestee against a vehicle, placed him in handcuffs, and pushed a
knee into arrestee’s back used de minimis force when the arrest was lawful).
Therefore, Plaintiff’s excessive force claim fails as a matter of law.
Even if the excessive force claim were viable, Plaintiff’s evidence does not
show objectively unreasonable force. Although the crime Plaintiff was arrested for
was a misdemeanor offense, Plaintiff and the officers knew that his wife was
suspected of taking part in a spree of burglaries while using the Nissan Altima.
Recorded surveillance footage of the impound lot showed Plaintiff making away
with Altima, which constituted seized evidence associated with the burglaries. His
association with evidence pertaining to the burglaries created a situation of
heightened alert for officers. (Doc. 25-6, p. 9, ll. 5–7). It was reasonable, even if
mistakenly so, for officers to believe that Plaintiff might fight back or flee,
regardless of the charge being a misdemeanor or Plaintiff’s lack of criminal history.
Saucier, 533 U.S. at 205. Plaintiff even testified that officer Blanks told him he was
being handcuffed for safety purposes. (Doc. 22-1, p. 66, l. 22–p. 67, l. 3). Given this,
the present situation is the antithesis of the excessive force used by the police in
Garner. See 471 U.S. at 1 (finding officer’s use of deadly force against a fleeing
burglary suspect excessive where officer was “reasonably sure” suspect was
unarmed and underage).
Defendants’ motion for summary judgment on Plaintiff’s excessive force claim
B. Failure to Train and Supervise (Count V) 8
Plaintiff alleges in his complaint that the City “was deliberately indifferent in
its failure to provide adequate training and supervision to” its officers.9 (Doc. 1, p.
6). He contends that “[t]his deliberate indifference is part and parcel of the culture
It is unclear whether Plaintiff pleads Count V as a state law claim, federal claim,
or both. In each of his other federal claims, he cites specifically to § 1983. He does
not in Count V. However, he alleges deliberate indifference (constitutional
terminology) on the part of the City and addresses it as a federal claim in his
response to summary judgment. Thus, for safe measure, the Court reads this count
as alleging both a state and federal claim.
9 Although Chief Riley is a named defendant, Plaintiff does not specifically name
him in any one count. In fact, under the present claim, he specifically names the
City as the culprit of the alleged constitutional deprivation. Plaintiff’s response to
Defendants’ motion offers little, if any, clarification. Even if Plaintiff meant to
allege an individual capacity claim against Chief Riley for failure to train and
supervise, summary judgment would be due in Defendants’ favor. Plaintiff failed to
put forth evidence that Chief Riley was personally involved in the arrest or has an
unconstitutional policy or custom causally related to the arrest. See West v.
Tillman, 496 F.3d 1321, 1328 (11th Cir. 2007). Further, Plaintiff failed to show that
Chief Riley had actual or constructive notice that his officers or their training
caused the violation of individuals’ constitutional rights in the past. Id. Instead,
Plaintiff relies on what Chief Riley did or did not do after the arrest. He failed to
show how action or inaction after this event is a constitutional violation.
of the Selma Police Department.” Id. Based on this, he brought suit against the
City. Defendants counter that Plaintiff did not present evidence that the City had
an unconstitutional policy or custom linked to Plaintiff’s arrest. (Doc. 22, p. 8).
In order to state a claim under § 1983 against the City, Plaintiff must allege
that he suffered a constitutional injury, and that his injury was caused by “a policy
statement, ordinance, regulation, or decision officially adopted and promulgated by
that body’s officers.” Monell, 436 U.S. at 690. A municipality cannot be held liable
under § 1983 solely because it employs a tortfeasor. Id. In Board of the County
Commissioners of Bryan County v. Brown, the Supreme Court narrowed the Monell
test when it stated:
[I]t is not enough for a § 1983 plaintiff to identify conduct properly
attributable to the municipality. The plaintiff must also demonstrate
that, through its deliberate conduct, the municipality was the “moving
force” behind the injury alleged. That is, a plaintiff must show that
the municipal action was taken with the requisite degree of culpability
and must demonstrate a direct causal link between the municipal
action and the deprivation of federal rights.
520 U.S. 397, 404 (1997). A plaintiff’s burden is heavy in a § 1983 official capacity
claim. As the Eleventh Circuit articulated:
This high standard of proof is intentionally onerous for plaintiffs;
imposing liability on a municipality without proof that a specific policy
caused a particular violation would equate to subjecting the
municipality to respondeat superior liability—a result never intended
by section 1983. As the Supreme Court has explained, “‘[t]o adopt
lesser standards of fault and causation would open municipalities to
unprecedented liability under § 1983. In virtually every instance
where a person has had his or her constitutional rights violated by a
city employee, a § 1983 plaintiff will be able to point to something the
city “could have done” to prevent the unfortunate incident. Thus,
permitting cases against cities for their “failure to train” employees to
go forward under § 1983 on a lesser standard of fault would result in
de facto respondeat superior liability on municipalities ….’” Id. at 391–
92 [(citing City of Canton v. Harris, 489 U.S. 378 (1989)].
Gold v. City of Miami, 151 F.3d 1346, 1351 n.10 (11th Cir. 1998). Under § 1983, the
“requisite degree of culpability” is that the municipality acted with at least
“deliberate indifference” to the consequences of its actions.
If an unconstitutional policy or custom is alleged, plaintiff must identify the
policy or custom, connect the policy or custom with the government entity itself, and
show that the particular injury was incurred because of the execution of that policy.
Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984) (en banc). If plaintiff
fails to allege an official policy or custom, then his claim against the municipality is
subject to dismissal. See Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d
521, 535–33 (5th Cir. 1996). Moreover, the Eleventh Circuit has held that without
notice of a need to train or supervise in a particular area, a municipality is not
liable as a matter of law for any failure to train or supervise. Church v. City of
Huntsville, 30 F.3d 1332, 1342–46 (11th Cir. 1994) (holding that the plaintiffs were
not likely to succeed on the merits of their failure-to-train claim without proof that
the City was aware of a prior incident in which constitutional rights were similarly
violated); see also Popham v. City of Talladega, 908 F.2d 1561, 1564–65 (11th Cir.
1990) (finding no liability for failure to train when no pattern of incidents put the
City on notice of a need to train).
Here, Plaintiff builds his deliberate indifference allegation on what he
classifies as an obvious inadequacy in training based upon officers being unable to
discuss department policies during depositions, inability to identify the arresting
officer, and the arrest report “not provid[ing] any specifics.” (Doc. 25, 12). Plaintiff,
however, fails to show that the City was the moving force behind these actions or
draw a causal connection to Plaintiff’s alleged harm. And as Defendants point out,
just because an officer cannot give a perfect answer during a deposition regarding a
policy or the law does not mean a municipality is liable for a failure to train. (Doc.
27, p. 7) (citing Wynn v. City of Lakeland, 727 F. Supp. 2d 1309, 1316–17 (M.D. Fla.
2010) (reasoning in analysis that an officer’s inability to correctly answer a question
during deposition at most reflects that the officer “did not learn his training
perfectly, not that the city failed to train properly”)).
Moreover, Plaintiff’s claim against the City fails because he provided no
evidence that the City had prior notice that its training was constitutionally
lacking. Instead, Plaintiff relies on what he alleges the City did after the fact -failed to “talk with officers or investigate” the situation. (Doc. 25, p. 12). Without a
showing of prior notice to accompany it, this allegation is insufficient to carry
Plaintiff’s official capacity claim as a matter of law. See Skop, 485 F.3d at 1145
(affirming a district court’s dismissal of a failure to train claim where no evidence of
prior notice was provided). Thus, the City is GRANTED summary judgment on
Plaintiff’s federal claim of inadequate training and supervision.
In addition to the city, Plaintiff sued each individual officer in his official
capacity. Official capacity lawsuits, in contrast to individual capacity actions,
“generally represent only another way of pleading an action against an entity of
which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 465 (1985)
(quoting Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690 n.55 (1978). “Such suits
against municipal officers are therefore, in actuality, suits directly against the city
that the officer represents.” Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir.
1991). Accordingly, the claims against Chief Riley, Muhannad, and Blanks in their
official capacities are identical to, and duplicative of the charges against the City.
Therefore, Chief Riley, Muhannad, and Blanks are GRANTED summary judgment
on the official capacity claims. See Hardy v. Town of Hayneville, 50 F. Supp. 2d
1176, 1185 (M.D. Ala. 1999) (dismissing § 1983 claims against city officials in their
official capacity as duplicative under Graham).
V. LEGAL ANALYSIS OF STATE LAW CLAIMS
In addition to his federal claims, Plaintiff alleges six state law claims. (Doc.
1). The claims of false imprisonment (Count II), negligence (Count III), assault and
battery (Count VIII), invasion of privacy (Count IX), and wantonness (Count X) are
brought against the officers in their individual capacities. Negligent hiring (Count
IV) and negligent training and supervision (Count V) are brought against the City.
A. Individual Capacity Claims
In response to each individual capacity claim, Defendants contend summary
judgment is due both as a matter of law and under Alabama’s statutory immunity
afforded police officers. Before discussing each individual claim, it is necessary to
outline the boundaries of the immunity in question.
In 1994, the Alabama Legislature enacted law providing immunity for
municipal police officers exercising discretionary authority in certain
circumstances.10 Ala. Code § 6-5-338(a) (1975). Section 6-5-338(a) provides:
Every peace officer … who is employed or appointed pursuant to the
Constitution or statutes of this state, whether appointed or employed
as such peace officer by the state or a county or municipality thereof …
shall at all times be deemed to be officers of this state, and as such
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.
Later on, the Alabama Supreme Court explained that “‘[t]he restatement of
State-agent immunity as set out by this court in Ex parte Cranman, [792 So. 2d 392
(Ala. 2000)], governs the determination of whether a peace officer is entitled to
immunity under § 6-5-338(a).’” Ex parte City of Midfield, 161 So. 3d 1158, 1163
(Ala. 2014) (quoting Ex parte City of Tuskegee, 932 So. 2d 895, 904 (Ala. 2005))
(alteration in original). Cranman outlined the test for State-agent immunity, in
pertinent part, 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
(2) exercising his or her judgment in the administration of a
department or agency, including, but not limited to, examples such as:
(d) hiring, firing, transferring, assigning, or supervising personnel; or
(4) exercising judgment in the enforcement of the criminal laws of the
State, including, but not limited to, law-enforcement officers’ arresting
Although case law and the statute use the term peace officer, this term is
interchangeable or analogous to police officer. See Ex parte Brown, 182 So. 3d 495
(Ala. 2015) (applying the statutory term “peace officer” to a “police officer” of the
Fultondale Police Department).
or attempting to arrest persons….
792 So. 2d at 405. However, a police officer’s immunity is not without its limits.
Section 6-5-388(a) has two exceptions:
(1) When the Constitution or law of the United States, or the Constitution
of this State, or law, rules, or regulations of this State enacted or
promulgated for the purposes of regulating the activities of a
government agency require otherwise; or
(2) When the State agent acts willfully, maliciously, fraudulently, in bad
faith, beyond his or her authority, or under a mistaken interpretation
of the law.
Id. Later, the court addressed the fact that the immunity initially set for in § 6-5338(a) was broader than that enunciated in Cranman. Hollis v. City of Brighton,
950 So. 2d 300, 309 (Ala. 2006). To reconcile this difference, immunity extends to
all “circumstances entitling such officers to” the immunity originally anticipated in
§ 6-5-338(a). Id. at 309. Much like the federal analysis of qualified immunity, the
police officer bears the original burden of proving that a “plaintiff’s claims arise
from a function that would entitle the [police officer] to immunity,” a discretionary
action. Ex parte City of Montgomery, 99 So. 3d 282, 293 (Ala. 2012). Once this
initial burden is met, the burden shifts to the plaintiff to show that an exception
applies. Ex parte Kennedy, 992 So. 2d 1276, 1283 (Ala. 2008).
1. False Imprisonment (Count II)
In conjunction with his federal unlawful arrest claim, Plaintiff brought suit
for false imprisonment under Alabama law, which “consists of the unlawful
detention of the person of another for any length of time whereby he is deprived of
his personal liberty.” Ala. Code § 6-5-170 (2001). An unlawful arrest will support a
claim for false imprisonment. Upshaw v. McArdle, 650 So. 2d 875, 878 (Ala. 1994).
Defendants argue that the existence of probable cause for Plaintiff’s federal
claim shows that, as a matter of law, summary judgment should be granted. (Doc.
22, p. 19). In Alabama, “probable cause must exist to make a lawful arrest.”
Franklin v. City of Huntsville, 670 So. 2d 848, 852 (Ala. 1995). Alabama’s standard
for the existence of probable cause is the same as the federal standard. See
Nesmith v. Alford, 318 F.2d 110, 122 (5th Cir. 1963) (“The Alabama standard of
probable cause in actions for malicious prosecution appears to be the traditional
one.”)11; see also Walker v. Briley, 140 F. Supp. 2d 1249, 1262 (N.D. Ala. 2001)
(applying the federal probable cause standard in a state law claim of false
Plaintiff relies on his federal unlawful arrest argument to survive summary
judgment for this state law claim. (Doc. 25, p. 15). Because the Court has already
established that probable cause was present, his state law false imprisonment claim
fails as a matter of law.
Additionally, Blanks and Muhannad are due immunity under § 6-5-338(a).
The actions leading up to and including an arrest are actions spelled out in
Cranman. 792 So. 2d at 405. Thus, it was Plaintiff’s burden to show the willful,
malicious, or bad faith actions of Blanks or Muhannad. Plaintiff fails to put forth
any evidence towards this burden. Instead, he relies on being handcuffed and
Fifth Circuit cases decided before October 1, 1981 are binding precedent in the
Eleventh Circuit. Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir.
detained until he made bond. (Doc. 25, p. 15). This is not enough. Thus,
Defendants’ Motion for Summary Judgment on the state law claim of false
imprisonment is GRANTED.
2. Negligence and Wantonness Claim (Count III & Count X)
In Counts Three and Ten, Plaintiff alleges negligence and wantonness,
respectively, on the part of Muhannad and Blanks. (Doc. 1, pp. 5, 10). “This Court
has previously held that poor judgment or wanton misconduct, an aggravated form
of negligence, does not rise to the level of willfulness and maliciousness necessary to
put the State agent beyond the immunity recognized in Cranman.” Ex parte
Randall, 971 So. 2d 652, 664 (Ala. 2007); see also Adams v. City of Mobile, 2008 WL
4531768, at * 10–11 (S. D. Ala. Oct. 9, 2008) (applying this principle). Because a
police officer is immunized from liability for his negligent conduct, count Three
must be dismissed. Likewise, Count Ten must be dismissed to the extent it
purports to rest on the alleged wantonness of the officers. Adams, 2008 WL
4531768, at *10-11. Therefore, Defendants are GRANTED summary judgment on
Counts Three and Ten.
3. Assault and Battery (Claim VIII)
In Count Eight, Plaintiff alleges a state law claim of assault and battery
based on being handcuffed and placed in the police car. (Doc. 1, p. 9). In Alabama,
the elements of assault and battery 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 touching another in a hostile
Wright v. Wright, 654 So. 2d 542, 544 (Ala. 1995). The Alabama Supreme Court,
however, has stated, “In making the arrest, a police officer may use reasonable force
and may be held liable only if more force is used than is necessary to effectuate the
arrest.” Franklin 670 So. 2d at 852 (citing Ala. Code § 13A-3-27(a) (“A peace officer
is justified in using that degree of physical force which he reasonably believe to be
necessary, upon a person in order: (1) To make an arrest for a misdemeanor,
violation or violation of a criminal ordinance … unless the peace officer knows that
arrest is unauthorized.”)) The evaluation of whether an assault and battery took
place in regards to an arrest mirrors whether excessive force was used in a federal
claim. See Walker v. City of Huntsville, 62 So. 3d 474, 494 (Ala. 2010); see also
Johnson v. Ashworth, 2014 WL 1331019, at *12 (S.D. Ala. Mar. 27, 2014) (applying
the federal excessive force standard in an assault and battery claim).
Plaintiff insists that the Blanks handcuffing and pushing him in the police
car was done in rudeness, anger, and/or in a hostile manner. (Doc. 1, p. 9; Doc. 25,
p. 15). Plaintiff only offers his conclusory statements of officers’ attitude and failed
to provide evidence of an actual “hostile manner.” Harper v. Winston County, 892
So. 2d 346, 354 (Ala. 2004). As established supra, it was reasonable for officers to
handcuff Plaintiff before taking him to the station given the heightened alert
brought on by the burglaries. The video evidence showing Plaintiff removing the
car added to this alert. Moreover, Plaintiff produced no evidence supporting the
proposition that officers “acted with the intent to injure or with ill will towards” him
in their actions leading up to and including his arrest, which is necessary to prove
the willfulness, maliciousness, or bad faith exception to § 6-5-338(a) immunity.
Rachel v. City of Mobile, Ala., 112 F. sup. 3d 1263, 1296 (S.D. Ala. 2015) aff’d sub
nom. Rachel v. McCann, 2016 WL 424684 (11th Cir. Feb. 4, 2016). Thus, summary
judge is GRANTED for Defendants on Plaintiff’s assault and battery claim.
4. Invasion of Privacy (Count IX)
In Count Nine, Plaintiff contends that Muhannad and Blanks intruded upon
his solitude and seclusion when they entered his home on January 27, 2014. (Doc.
1, p. 10). He bases this allegation on what he classifies as officers pursuing an
unfounded investigation, five police vehicles coming to his home, and entering his
home without a warrant or probable cause while he was “undressed.” (Doc. 25, p.
Under Alabama law, a plaintiff has a viable claim for invasion of privacy in
four distinct situations: “(1) the intrusion upon the plaintiff’s physical solitude or
seclusion; (2) publicity which violates the ordinary decencies; (3) putting the
plaintiff in a false, but not necessarily defamatory, position in the public eye; and
(4) the appropriation of some element of the plaintiff’s personality for commercial
use.” I.C.U. v. Investigations, Inc. v. Jones, 780 So. 2d 685, 689 (Ala. 2000). In this
case, Plaintiff alleges an intrusion of the first nature. When the alleged intrusion
deals with an investigation, the reviewing court must “determine the purpose for
the investigation and ‘whether the thing into which there is intrusion or prying is,
and is entitled to be, private.’” Id. (quoting Hogin v. Cottingham, 553 So. 2d 525,
528 (Ala. 1988)). Additionally, the investigation “must not be pursued in an
offensive or improper manner.” Johnson v. Corporate Special Services, Inc., 602 So.
2d 385, 387–88 (Ala. 1992). In other words, was the investigation done in such a
manner “so as to outrage or to cause mental suffering, shame or humiliation to a
person of ordinary sensibilities”? Jones, 780 So. 2d at 689 (internal quotations
Defendants contend that summary judgment is due based on the protections
of § 6-5-338(a). Further, Defendants argue that the facts show the investigation
and subsequent entry into Plaintiff’s home is in accordance with the law above.
(Doc. 22, p. 21). A police officer’s investigation is a “discretionary function within
the line and scope of … law enforcement duties” for the purpose of § 6-5-338(a).
Grider, 618 F.3d at 1268; see also Ex parte Butts, 775 So. 2d 173, 178 (Ala. 2000).
Therefore, Plaintiff bears the burden to show malice, willfulness, actions beyond
authority, bad faith, or actions taken under a mistaken interpretation of law to
remove immunity. Plaintiff puts forward no evidence showing Blanks or Muhannad
“had a personal ill will against [Plaintiff] and that they either maliciously or in bad
faith [entered his home] solely for purpose of harassment.” Couch v. City of
Sheffield, 708 So. 2d 144, 153–54 (Ala. 1998) overruled on other grounds Ex parte
City of Tuskegee, 932 So. 2d 895, 904 (Ala. 2005). Thus, § 6-5-338(a) immunity
applies to this count.
Even if immunity is improper, the facts are not present to reach the required
standard when read in a light most favorable to Plaintiff. It has already been
established that the car, which had been seized as evidence, was missing and
surveillance footage established that Plaintiff removed it. Thus, the purpose of the
investigation was legitimate. How officers chose to investigate Plaintiff’s culpability
fell within their discretion. Key v. City of Cullman, 826 So. 2d 151, 158 (Ala. Crim.
App. 2001). It was reasonable to take more than one officer to Plaintiff’s house to
investigate the removal of evidence connected with a spree of burglaries.
With that said, the Court does recognize that what a person wears behind
closed doors is protected from prying eyes based on the law above. But when
Plaintiff decided to answer the door in like manner, he presented it for those who
come to call. See Jones, 780 So. 2d at 689 (finding an investigator’s filming of Jones
urinating from his front porch that was open to a passerby is not a wrongful
invasion of privacy). Furthermore, by his own account, Plaintiff is the one that
allowed officers into his home when he asked to change clothes. (Doc. 22-1, p. 59, ll.
2–17). For safety purposes, the officers had a right to escort Plaintiff into the house.
Washington v. Chrisman, 455 U.S. 1, 5 (1982) (reasoning that an officer has a right
to remain at an arrestee’s elbow because every arrest is presumed to present a risk
of danger). If a police escort after making a request to change clothes is an invasion
of privacy under state law, Plaintiff failed to put before this Court the relevant
authority. Therefore, Defendants’ Motion for Summary Judgment of Count Nine,
the invasion of privacy claim, is GRANTED.
B. Negligent Hiring, Training, and Supervision (Count IV & V)
In Counts Four and Five, Plaintiff alleges that the City is liable for
negligently hiring unqualified officers (Doc. 1, p. 5) and negligently training and
supervising its officers in light of the serious consequences that could result from its
negligence (Doc. 1, p. 6). Defendants argue that, although there may be a question
of whether a cause of action against the City is available, it nonetheless fails in this
case because of the City’s immunity. (Doc. 22, p. 22).
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, 1258–59 (M.D. Ala.
2010); 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, 1314–15 (S.D. Ala. 2001). The parties
point out, however, that the Alabama Supreme Court recently called the foundation
of this principle into question. Ex parte City of Montgomery, 99 So. 3d 282, 289
(Ala. 2012); see also Howard v. City of Demopolis, Ala., 984 F. Supp. 2d 1245, 1260
(S.D. Ala. 2013) (evaluating Montgomery in the context of a negligent hiring,
training, and supervision claim against a municipality). In Montgomery, the court
rejected a municipality’s claim of immunity because of its “fail[ure] to identify the
individual or individuals specifically charged with the hiring, training, and
supervision of the police officers, much less whether the individual or individuals
are police officers entitled to State-agent immunity.” Id. at 299; see also Ex parte
City of Midfield, 161 So. 3d 1158, 1169 (Ala. 2014) (reaffirming the principle that it
is necessary for the municipality to identify whether the hiring, training, or
supervising person is a police officer in deciding whether a municipality is immune).
The need to identify the hiring training and supervising individual is based on the
well-established principle that, “if a municipal peace officer is immune pursuant to
§ 6-5-338(a), then pursuant to § 6-5-338(b), the city by which he is employed is also
immune.” Montgomery, 99 So. 3d 282 at 298.
In deciding the present motion, the undersigned need not evaluate whether,
generally speaking, a cognizable claim lies against a municipality if the hiring,
supervising, and training employee is not a police officer. Defendants assert that
Chief Riley is the person in charge of hiring, training, and supervising Selma’s
police officers. (Doc. 22, p. 23; Doc. 27, p. 14). Plaintiff does not contest this point,
and indeed identifies the nexus of this claim as a failure of the “leadership of Chief
Riley.” (Doc. 25, pp. 18–19). Hiring, training, and supervising a subordinate officer
are specifically spelled out as actions protected by immunity. Cranman, 792 So. 2d
at 405. Thus, Plaintiff needs to show malice, willfulness, fraudulent behavior, bad
faith, or actions beyond Chief Riley’s authority. Moreover, if a cognizable claim lies,
Plaintiff must put forth “affirmative proof” that, assuming the officers were
incompetent, Chief Riley or the City had actual or constructive notice of such.
Howard, 984 F. Supp. 2d at 1260. Plaintiff failed to provide evidence of either
requirement. Thus, Plaintiff’s final claim fails as a matter of law, and Defendants
are GRANTED summary judgment on Counts IV and V.
For the reasons stated above, Defendants’ Motion for Summary Judgment
(Doc. 21) is GRANTED.
DONE and ORDERED this 8th day of April, 2016.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE
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