T. MICHAEL PUTNAM, United States Magistrate Judge.
This cause is before the Court on the motion for summary judgment filed by defendants City of Birmingham ("the City"), Police Chief A.C. Roper ("Roper"), and Officer Terry Davis ("Davis") on February 19, 2013.
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. There is no requirement, however, "that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Id. at 323, 106 S.Ct. 2548.
Once the moving party has met his burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions of file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548 (quoting Fed. R.Civ.P. 56(e)). The nonmoving party need not present evidence in a form necessary for admission at trial; however, he may not merely rest on his pleadings. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. 2548.
For purposes of summary judgment, the facts viewed favorably to the non-moving plaintiff, are as follows.
On July 7, 2010, Davis, who was on duty with the Birmingham Police Department and patrolling nearby, responded to a call at 320 Beta Street. Voltaire McGinnis, who lives next door to the lot owned by plaintiff and her family, had reported to the Birmingham Police Department that a woman was cleaning off her family land and putting the garbage in an alley behind McGinnis's house. Plaintiff Willie Fannett Thompson had called the City sanitation department on or around July 7, 2010, regarding the garbage pick-up schedule and informed the City that the trash would be in the alley behind the property. She was told that garbage pick-up would occur on Friday, July 16, 2010. (Doc. 57-1, pp.
Plaintiff and McGinnis had conflicts about trash in the alley on earlier occasions. On July 7, McGinnis again confronted plaintiff, telling her not to put the picked-up trash in the alley behind his house because he would have to move it from there. When plaintiff did not respond to McGinnis, he said that he would have to call the police, to which plaintiff replied that it was a good idea.
Officer Davis approached plaintiff, who standing inside the fence around her property, and informed her that she could not put garbage in the alley and instructed her to put the garbage in front of the house for the City to pick up. (Doc. 57-1, p 27). Officer Davis volunteered to help plaintiff carry the box of trash to the front curb. Plaintiff informed Davis that she always put the garbage in the alley and that the City was aware of this and would pick it up. (Doc. 57-1, p. 27). Plaintiff stated that she was unable to lift the full box by herself and that she did not want to take the box out front because it was a very hot day, she was experiencing "hot flashes," and she was irritated with McGinnis, who had called the police about the trash. (Doc. 57-1, p. 28). At this point, Willie Lee Thompson ("Mr. Thompson"), plaintiff's father, arrived and began collecting trash off the property and putting it into the box. Davis informed Mr. Thompson that if he saw Mr. Thompson put anything in the alley Davis would issue him a $500.00 citation for "criminal littering." (Doc. 57-2, p. 26). Plaintiff told Davis that she was "fine" with him issuing the citation and that she would dispute it in court.
Up to this point, plaintiff and her father had not put anything in the alleyway; she and her father were filling boxes she had brought from work and planned to move them to the alley when they were full. (Doc. 57-1, pp. 32-34). Before plaintiff or Mr. Thompson moved any boxes to the alley, Davis placed Mr. Thompson under arrest. (Doc. 57-1, p. 33). Mr. Thompson immediately dropped the box he was holding and put his hands behind his back, in compliance with Davis's instructions, and Davis placed Mr. Thompson in handcuffs. (Id.) Plaintiff, who was facing away from Davis and her father, placed her hands behind her back where Davis could see them, anticipating that she also would be arrested. (Doc. 57-1, p. 36). Instead of handcuffing plaintiff, Davis ran around from behind plaintiff and began choking her and shaking her neck "relentlessly." (Id.) Then, Davis punched plaintiff in the face
Finally, Davis placed handcuffs on plaintiff and told her to sit up. (Id.) When Davis turned to walk toward his vehicle, plaintiff noticed her cellphone had fallen out of her pocket and was on the ground. (Id.) She maneuvered her hand to reach her phone and then called her sister. (Doc. 57-1, p. 42-43). As plaintiff was yelling into the phone for her sister to come because plaintiff and Mr. Thompson were being arrested, Davis came back and kicked her phone down the alley, saying, "bitch, I didn't tell you you could use no fucking phone." (Doc. 57-1, p. 46). Davis then pulled plaintiff's hairpiece
Fannett suffered severe bruising and scrapes to her face during her encounter with Davis.
Plaintiff testified that she had an MRI between four and five months after her
After plaintiff filed a formal complaint (called a 131 form) against Davis with the Internal Affairs Division ("IAD") of the Birmingham Police Department ("BPD"), the IAD investigated the circumstances surrounding the arrests of plaintiff and Mr. Thompson, and exonerated Davis of all claims and allegations against him, based on the testimony of McGinnis and Davis. Neither plaintiff nor her father, Mr. Thompson, were interviewed as part of the investigation. Davis's supervisor at the time of the incident, Sergeant Phyllis Jones ("Jones"), at the time of her deposition, had never reviewed plaintiff's arrest report. (Doc. 58-1, p. 65-66). During her time as Davis's supervisor, Jones never reviewed his Internal Affairs Reports and had no idea if or how many times Davis had been in trouble for using excessive force. (Doc. 58-1, p. 71). Neither Jones nor her supervisor, Captain McCaskey, reviewed the Use of Force report filed by Officer Davis, and neither discovered that it was inaccurate and incomplete. According to the criminal trial docket, all charges stemming from Davis's arrest of plaintiff (Case Number 011290721) were dismissed because Davis failed to appear for at least three settings of the case.
As early as 2009, Police Chief Roper acknowledged that Birmingham police supervisors need to do a better job of reporting and documenting uses of force by police officers. In January 2008, police officers were videotaped beating an unconscious man. Seventeen officers failed to report this incident. When revealed later, one supervising officer was reprimanded for failing to report the incident, and that officer has since been promoted. Five police officers were terminated by the City, but reinstated by the Jefferson County Personnel Board.
Davis had only one complaint of excessive force against him prior to the events giving rise to the instant case. Hai Luu made the complaint in December 2009, alleging that Davis kicked and slammed him to the ground during an arrest. Jail personnel noted Luu had injuries and sent him to Cooper Green Hospital, where he was told that he had a cracked vertebra. (Doc. 58-2, pp. 50-51). Davis failed to complete the necessary reports for his use of force in that incident.
Davis was deposed on July 26, 2012, at which time he was on leave for investigation of an incident that occurred in March 2011 (after the incident involving plaintiff). At the time of his deposition, Davis had not received anything from the IAD reflecting whether the excessive force complaint filed in 2011 was sustained. Davis testified that, as of the date of his deposition, he had never been disciplined by the BPD.
The BPD uses an "Internal Affairs Early Warning System," to keep superior officers and the Internal Affairs Department ("IAD") abreast of any issues the officers may be having. The system places a flag in a police officer's file when any addition is made to the file in a 365-day cycle. The additions may be negative, positive, or purely informational. When an officer has three flags, the IAD will receive an alert the next time the file is opened (on the fourth flag). The IAD then sends an e-mail notice of the fourth flag and, depending on the nature of flag, investigates or sends the issue to the precinct for investigation.
The IAD investigates citizen complaints of excessive force by police officers. These investigations are triggered only by the filing of a formal 131 complaint with IAD, either by a citizen or another police officer. Although formal 131 complaints can be initiated by telephone, in person, or by letter written to the police department, the complainant must sign the complaint before an investigation commences.
Birmingham Police Department policy requires a Use of Force report any time force is used to make an arrest.
Birmingham police officers receive training though the Birmingham Police Academy, consisting of 800 hours of training, almost twice that required by the Alabama
Plaintiff's claims set forth as Counts I and II, for unlawful arrest without probable cause and use of excessive force in making the arrest, arise under 42 U.S.C. § 1983, which provides a right of action for the "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" when the deprivation is caused by anyone acting under color of state law. Essentially, Plaintiff asserts that she was unlawfully arrested while clearing off her property, and that Davis employed excessive force in effectuating the arrest.
Under federal law, it is well settled that qualified immunity protects government officials performing discretionary functions from civil suit and liability where their conduct does not violate "clearly established statutory or constitutional rights." Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The shield of qualified immunity has been expanded to include acts that may not involve the exercise of "actual discretion," and can include acts that may be ministerial but are "job-related functions" and are carried out through means that are within the official's authority to utilize. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265-66 (11th Cir.2004), quoting Hill v. Dekalb Reg'l Youth Detention Ctr., 40 F.3d 1176, 1185 n. 17 (11th Cir.1994). Furthermore, it is the general rule that qualified immunity will protect government actors from liability, and only in "exceptional cases" will the immunity be unavailable as a shield. Harris v. Board of Educ. of Atlanta, 105 F.3d 591, 595 (11th Cir.1997). Evenso, qualified immunity does not apply in those instances where the case law establishes a "bright line" in such a "concrete and factually defined context" to make it obvious to all reasonable government actors, in the defendant's position, that the actions violate federal law. Scarbrough v. Myles, 245 F.3d 1299, 1301 (11th Cir.2001).
The initial burden of demonstrating that the public official is acting within the scope of his position lies with the defendant asserting that defense. Holloman, 370 F.3d at 1264. The test is not whether the defendant had the authority to effectuate an illegal act, but whether their jobs entailed engaging in the act in general. See id. at 1266. In other words, the court does not ask whether the defendant had the right to illegally arrest the plaintiff, or to use excessive force against the plaintiff, but simply whether making arrests was within the general scope of the officer's duties. The answer, of course, is in the affirmative.
Once the defendant has met this burden, which Davis has done, the burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity. Id. To prevail against an assertion of qualified immunity, the plaintiff must demonstrate that: "(1) the defendant violated a constitutional right, and (2) this right was clearly established at the time of the alleged violation." Id. at 1264, citing Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 1697, 143 L.Ed.2d 818 (1999).
In Count I of the complaint, Plaintiff argues that Davis conducted an unlawful and unwarranted arrest in violation of Plaintiff's constitutional right to be free from unlawful search and seizure when he arrested her and physically assaulted her. Davis appears to be the only defendant sued in Count I. Plaintiff claims she posed no threat to the officer or any members of the community, nor was she involved in any criminal activity. She claims that there was no probable cause for her arrest. As the Eleventh Circuit Court of Appeals explained concerning an alleged illegal arrest in Von Stein v. Brescher, 904 F.2d 572 (1990), law enforcement officials will sometimes "mistakenly conclude that probable cause" exists, but in those instances the officials still are shielded by qualified immunity. Id. at 579, citing Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
An arrest without a warrant and lacking probable cause violates the constitution and can support a claim pursuant to 42 U.S.C. § 1983, but the existence of probable cause at the time of arrest is an absolute bar to such a claim. Brown v. City of Huntsville, Ala., 608 F.3d 724, 734 (11th Cir.2010) (citing Case v. Eslinger, 555 F.3d 1317, 1326-27 (11th Cir.2009); Kingsland v. City of Miami, 382 F.3d 1220, 1226, 1232 (11th Cir.2004); Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir.1996)). The issue is whether there existed at the time "arguable" probable cause. See Von Stein, 904 F.2d at 579, and cases cited therein. Actual probable cause need not be proved, but only "whether an officer reasonably could have believed that probable cause existed, in light of the information the officer possessed." Wood v. Kesler, 323 F.3d 872, 878 (11th Cir.2003), cert. denied, 540 U.S. 879, 124 S.Ct. 298, 157 L.Ed.2d 143 (2003). "Even law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to immunity." 323 F.3d at 878, quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991).
The question, therefore, is whether Davis could reasonably (even if mistakenly) have believed that plaintiff's behavior at the point she was arrested constituted disorderly conduct under Alabama Code § 13A-11-7, infra. Taking Plaintiff's version of the facts as true, she had not engaged in any of the behavior outlined in Alabama's Disorderly Conduct statute. She explicitly denies fighting, scratching, or creating tumult, and there is no assertion that she disrupted a public meeting or gathering or obstructed vehicle traffic. When her father was placed under arrest, she placed her hands behind her back, anticipating that she too would be placed under arrest. Defendants' version of the facts varies widely from this account, but that variation only strengthens the conclusion that there is a dispute of material fact as to whether Davis had probable cause to place plaintiff under arrest.
To establish a claim for use of excessive force in violation of the Fourth Amendment, the plaintiff is required to present evidence from which a reasonable jury could conclude that the force used against her in effectuating the arrest and after she was handcuffed was "objectively unreasonable," that is, whether a reasonable officer in the same situation would have believed that the force used was excessive. Thornton v. City of Macon, 132 F.3d 1395, 1400 (11th Cir.1998). "Whether the force used is reasonable turns on `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.'" Id. (quoting Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989)); see also Smith v. Mattox, 127 F.3d 1416 (11th Cir.1997).
The United States Supreme Court has recognized that officials can be on notice that their conduct violates federal law, even in novel situations. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). The test is whether the state of the law at the time of the incident made the basis of the complaint gave the defendant "fair warning" that his conduct was unconstitutional. Id.
Plaintiff does not cite any cases that demonstrate that there exists clearly established federal law that would prohibit the alleged conduct — choking the plaintiff, punching her in the face, and slamming her on the ground multiple time before she was handcuffed, and then ripping out her hairpiece and spraying her with mace after she has been handcuffed. However, the Eleventh Circuit has articulated an exception to the rule that there must be a case precisely on-point in order for the plaintiff to prove that a clearly established right was violated. The Eleventh Circuit has said:
Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926-27 (11th Cir.2000); see also Lee v. Ferraro, 284 F.3d 1188, 1199 (11th Cir.2002); Hadley v. Gutierrez, 526 F.3d 1324 (11th Cir.2008); Fils v. City of Aventura, 647 F.3d 1272 (11th Cir.2011). When taking the facts in the light most favorable to the non-moving plaintiff, Davis's conduct prior to restraining plaintiff comes within this narrow exception. According to plaintiff, she was standing with her hands behind her back where Davis could see them. Davis ran around to face plaintiff and began choking her. He then punched her in the face and "body slammed" her onto the ground three times, rolled her around on the ground, and wrenched her arm up behind her back to the point of injury before handcuffing her. Plaintiff did not have any weapons and had not taken any action that indicated that she was a threat to herself, Davis, or anyone else. In fact, plaintiff preemptively complied with Davis when he arrested her father by putting her hands behind her back before she was even asked to. Under these circumstances, Davis had to know that he was violating the constitution by choking, punching, and slamming to the ground an unarmed, non-threatening person who was roughly four inches shorter and fifty pounds lighter than he. Accordingly, Davis is not shielded by qualified immunity.
In regards to Davis's actions after plaintiff had been handcuffed — yanking out her hairpiece and spraying her in the face with pepper spray three times — the court is aware of cases that hold that the use of force after the arrestee is restrained can be deemed a constitutional violation. The court considers Smith v. Mattox, 127 F.3d 1416 (11th Cir.1997), and Sheth v. Webster, 145 F.3d 1231 (11th Cir.1998), in which non-threatening persons were injured by police effecting an arrest with unnecessary force. See also Thornton v. City of Macon, 132 F.3d 1395, 1400 (11th Cir.1998). In Smith, a suspect who had initially threatened an officer with a baseball bat surrendered to a pursuing officer. The officer then broke the suspect's arm while he lay face-down being handcuffed. Even though the initial use of force was warranted by the threatening act of the suspect, once he submitted to authority and ceased to resist, the need for the use of force and the degree of force proper under the circumstances diminished greatly. Similarly, in Sheth, an officer slammed a non-threatening female motel owner into a vending machine while arresting her without cause. The events in both these cases occurred in or before 1994,
The version of the facts offered by plaintiff establishes the objective unreasonableness of the force used after she was handcuffed. While Defendants disagree with plaintiff's description of the events, this does nothing more than prove the existence of a genuine issue of fact that precludes summary judgment. The facts and circumstances, viewed most favorably for plaintiff, reveal that Davis already had handcuffed her (and had exhibited excessive force in doing so), and she was sitting on the ground, talking on a cellphone to her sister. A reasonable officer simply would not perceive plaintiff as a threat to do serious bodily injury to anyone on the scene. Previous case law gave any reasonable officer fair warning that inflicting injury on a non-threatening person who was already handcuffed is illegal. This scenario, if accepted as true by a jury, would warrant the finding of a constitutional violation. Accordingly, the shield of qualified immunity is not available to Davis under these circumstances, and the motion for summary judgment on Count II is due to be DENIED.
Counts III and IV of the complaint assert claims against A.C. Roper only in his official capacity as the Chief of Police for the City of Birmingham. (Doc. 53, p. 16). The claims against Roper in his official capacity are essentially claims against his employer, the City of Birmingham. See Will v. Michigan Department of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989) ("[A] suit against a state official in his or her official capacity is not a suit against the official but rather a suit against the official's office," and, "[a]s such, it is no different from a suit against the state itself."); Cooper v. Dillon, 403 F.3d 1208, 1221 n. 8 (11th Cir.2005); Simmons v. Conger, 86 F.3d 1080 (11th Cir.1996). It is clear that under Kentucky v. Graham, official capacity lawsuits are "only another way of pleading an action against the entity." 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). In this case, the City of Birmingham also is a defendant, and the claims against Roper in his official capacity are duplicative. Any relief Plaintiff seeks against Roper in his official capacity may be obtained through her claims against the City. Accordingly, the motion for summary judgment on all claims against Roper in his official capacity is due to be GRANTED as redundant of the claims against the City.
It is well-settled that a municipality cannot be liable for a constitutional tort under § 1983 unless the deprivation of the constitutional right occurred as a result of an official policy or custom of the governmental body. See Monell v. Department of Social Services of New York, 436 U.S. 658, 690-691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Moreover, "a municipality cannot be held liable under § 1983 on a respondeat superior theory." Id. at 691, 98 S.Ct. 2018. The Eleventh Circuit Court of Appeals has further determined that a municipality may be liable under § 1983 for the actions of a police officer only when the city's "official policy caused the violation." Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir.1998).
In order to survive summary judgment on the § 1983 claims, the plaintiff must have come forward with evidence to show that the City had a policy — even if unwritten and informal — of perpetuating unlawful or illegal arrests or of applying excessive
Where the plaintiff's theory of municipal liability rests on the City's alleged failure to adequately train and/or supervise its officers, the plaintiff must show a "deliberate choice" by the City not to train or supervise officers despite notice of the need to do so. The Eleventh Circuit reiterated this standard only three years ago, saying:
American Federation of Labor & Congress of Industrial Organizations v. City of Miami, FL, 637 F.3d 1178, 1188-89 (11th Cir.2011). Under this standard, it is "difficult" for a plaintiff to extend liability to the City. Plaintiff acknowledges that the City has articulated policies against the use of excessive force and standards for the use of force. She admits that the City has a mechanism for investigating and disciplining officers accused of excessive force, although she asserts that mechanism is routinely ignored. Below, the court examines whether the plaintiff has mustered enough evidence to create a dispute of fact as to whether the City has made the "deliberate choice" to forgo training of its officers even though knowing of widespread constitutional abuses by them.
Plaintiff cites a report regarding an event in 2008, in which a videotape of a chase involving the Narcotics Unit shows five officers using excessive force on Anthony Warren after he was ejected from his vehicle during a crash. The report states "[d]uring the course of the investigation, it was revealed that the supervisor failed to properly supervise the officers by filling out the proper paperwork, notifying supervisors [of the officers involved], and getting pictures of the officers and the suspect. Therefore, it is recommended that this charge be classified as sustained." (Doc. 62-6, p. 6). The report also stated that "the Narcotics Unit as a whole failed to follow the Rules and Regulations set out by the Department as to filling out the proper paperwork and forwarding it through the Chain of Command which will notify the Chief of incidents such as this." (Id.) Plaintiff alleges that no officers have been permanently discharged for the 2008 Warren incident and that the supervisor involved was actually promoted from Lieutenant to Captain over the entire precinct between 2008 and 2010. Plaintiff alleges that this report, in conjunction with the instant case and the Hai Luu incident in 2009, indicate a systemic failure of supervision. Plaintiff also claims that the supervisor in the Warren incident was one of the supervisors at the time of the instant incident and at the time of the Hai Luu incident.
Plaintiff contends that due to BPD's failure to properly utilize its Internal Affairs Early Warning System ("Warning System"), the police department and, through it, the City itself, was unaware that, between July 2007 and 2010, 12 officers had at least 4 early warning flags, 12 had at least 5, 6 had at least 6, 5 had at least 7, 5 had at least 8, 4 had at least 9, 2 had at least 11, 1 had at least 16, and 74 "unknown" officers had between 8 and 23 early warning flags; in 2007, 122 Early Warning Reports were generated regarding Use of Force; in 2008, 204 were generated; in 2009, 179 were generated; in 2010, from January through July 8, 105 were generated. These numbers, however, do not indicate which reports regarding use of force were ultimately determined to have merit. They also do not indicate that all supervisors were negligent in their investigation and utilization of the Warning System. Because the Early Warning System is designed to identify potential problem officers, it is unclear whether these reports over-report instances of uses of force involving relatively minor events. The point is simply that little if anything probative can be gleaned from these raw numbers.
Defendants answer Plaintiff's claim that the supervisor involved in the 2008 Anthony Warren incident was promoted by pointing to testimony that he was first disciplined with respect to his failure to report.
Defendants also contend that plaintiff's evidence fails to show that the alleged violations regarding completing reports and following internal administrative procedures are "highly likely" to result in the use of excessive force or an unlawful search and seizure by Davis or any other BPD officer. The raw statistical evidence concerning the number of Use of Force reports in relation to the number of arrests occurring each year, in the absence of some context or expert explanation, simply fails to present anything probative on the question of whether the City is on notice of a need for more supervision or training. Whether 388 Use of Force reports out of over 30,000 arrests is a large or small number is unclear without some expert context. While plaintiff argues this number proves to a "reasonable person" that uses of force are being underreported, the court has no way of knowing this, even at the risk of seeming unreasonable. First, the court does not know whether, relative the number of arrests, this is regarded as an unusually small number of uses of force or about average or excessive. This requires some expert explication, without which the court and a jury can only speculate as to its significance. Second, even if it is a low number, it may indicate just as plausibly as the plaintiff's underreporting theory that the City's training on uses of force has successfully reduced the incidents of force. Which understanding of these numbers is correct is anyone's guess. The raw number simply is not probative.
The same is true of the Early Warning System statistics: without expert explication, they are not probative of anything. That a certain number of officers received Early Warning notices over a period of time does not by itself establish whether a problem exists with use of excessive force. Under plaintiff's evidence, 47 officers received an Early Warning notice over a three and half year period. Relative to the size of the police force, the court cannot say whether this is probative of widespread abuse or is merely average (or even low) for a police force of that size. Again, the raw number simply is not probative.
Plaintiff alleges that Davis's supervisors failed to properly monitor his actions and respond to warning signs. Jones, Davis's immediate supervisor at the time of the events giving rise to the instant case, testified that she never discussed Plaintiff's allegations against Davis or reviewed Plaintiff's arrest report (until the time of her deposition). (Doc. 58-1, p. 17). Jones claimed that it was not her "duty" to attempt to investigate complaints against the officers she supervises, and that she does not review an officer's IAD statement regarding excessive use of force or do any review of the behavior of officers she supervises. (Id. at 16, 18, 21). Jones stated in her deposition that she did not know how many times Davis had been in trouble for excessive force. (Id. at 18).
However, Lieutenant Dennis Shepherd, the head of the IAD, testified that it is an officer's "first line supervisor's" job to determine whether an officer's IAD form is correctly filled out, requiring some knowledge of what occurred when the officer used force in effectuating an arrest. (Doc. 58-4, p. 22). Further, if the form is not filled out correctly, the first line supervisor should ensure that corrective action is taken. (Id.) It was also the Precinct Captain's responsibility to ensure that all paperwork was done correctly. (Id. at 29). Neither Davis, Jones, nor Captain McCaskey, the precinct captain at the time of the events giving rise to the instant case, were punished or retrained regarding paper-work
Plaintiff asserts that the City of Birmingham's "Internal Affairs Early Warning System," although in existence, is not used. According to Shepherd, when the IAD receives an alert, an email is sent to the officer's supervisor, to which the supervisor responds. (Doc. 58-4, p. 10). Copies of both emails are placed in the officer's IAD file. (Id.) However, Jones testified that she had never reviewed Davis's IAD reports and did not know if or how many times Davis had been in trouble for using excessive force. (Doc. 58-1, p. 18). Jones testified that the IAD warning letters are, contrary to Shepherd's testimony, sent directly to the officer in question, not to his or her supervisor. (Id.) Jones testified that, although it is part of her job to evaluate the officers she supervises, she does not ever ask IAD about any trouble the officers have been in, and does not consider it a part of her job to do so. (Id. at 18-19). The City maintains that the Early Warning System operated as intended because "the claim of excessive force was entered into the IAD system; the system issued an alert; and an investigation into the allegations was initiated."
That there appears to be a breakdown in the supervision of Davis by Sergeant Jones and perhaps Captain McCaskey does not mean that the City or Chief Roper was deliberately indifferent to the need to supervise or train Davis. The City and Chief Roper put into place various rules, regulations, and systems designed and intended to provide oversight and supervision of police officers. Without evidence that there was a widespread misuse of these systems by many police supervisors, the fact that two supervisors failed to carry out their supervisory duties does not prove that the City or Chief Roper accepted this breakdown as the customary policy of the police department. For such to amount to City policy for purposes of § 1983 liability, the evidence must be such that a reasonable jury could infer that the City both knew about the breakdown in supervision and that it or Chief Roper was deliberately indifferent to the need to correct the problem. There is no evidence that the City or Chief Roper knew that Sergeant Jones was failing to review IAD Early Warning alerts or arrest reports and Use of Force reports prepared by Davis. The City is entitled to assume that its supervisors are following regulations until it becomes clear that they are not. Unless there is evidence that City or Chief Roper knew that Davis's supervisors were not properly supervising him, it cannot be said that the City endorsed that course of conduct as its policy or custom.
Plaintiff alleges that it is undisputed that most complaints against BPD officers are not investigated as required by BPD Policy and Procedure. Plaintiff alleges that Sheppard testified that "if there is not a formal 131 IAD complaint filed by an individual or by another BPD Officer then it is the custom and policy not to conduct an investigation." (Doc. 53, p. 28). However, the deposition testimony cited to support Plaintiff's allegation does not support that claim. In the relevant section of Sheppard's deposition, he states that he
In her deposition, Sergeant Jones testified that if a citizen calls the BPD with an excessive force complaint, she will take a name and number and ask the complainant to come to the precinct to fill out paperwork because "[w]e don't do 131's over the phone." (Doc. 58-1, p. 8). Jones testified that she does not do a report on complaints made by telephone and, if the complainant is claiming that an officer used excessive force, the complainant would "need to come into the precinct and make a complaint." (Id.) She testified that she would talk to the officer about the complaint "[b]ut if [the citizen] don't [sic] come... in to the office ... and talk about it or tell me what's going on, I can't investigate it, or it don't go up. No, it don't go up [to IAD]." (Id.) It appears that, despite the fact that it is a supervisor's duty to investigate "all alleged or suspected violations of laws,.. reported by a citizen in person, by telephone or by correspondence," if a 131 form is not filled out in the precinct, the complaint will not reach IAD for further investigation, at least not through Jones.
Plaintiff contends that Catherine Guinn, an employee of the City of Birmingham who works for IAD, testified that in order for an investigation to be done, an individual must come in and sign a formal 131 form.
Plaintiff also claims that the fact that officers sometimes are investigated by IAD without being informed that a claim has been filed against them indicates a failure to investigate. Davis testified in his deposition that in some cases the IAD does not inform the officer that a complaint has been filed against him, stating that IAD does "their own investigation and make[s] their own decision." (Doc. 58-2, p. 47). However, whether IAD tells the officer he is being investigated does not speak to whether there is an investigation taking place. Plaintiff further alleges that BPD's failure to implement corrective action due to Davis's cursing at plaintiff (to which he admits) indicates a pattern of poorly run and sloppy investigations that rise to the level of deliberate indifference on the part of the City. Even if true in this case, an isolated breakdown in the investigative scheme does not mean that the City or Chief Roper were or are deliberately indifferent to the problem. Evidence of a much more widespread systemic breakdown is necessary before it can be said the City or Chief Roper are indifferent to the inadequacy of investigations by IAD.
Plaintiff claims that a history of not closing IAD investigations within the required 45 to 90 days indicates a failure to investigate. Plaintiff claims that during the reporting period of January 1, 2007 to February 1, 2012, there were 106 cases not "closed" or were noted for "no disposition" after an officer used force during an arrest. Moreover, statistics show that, of the formal complaints completed by civilians and investigated between January 2007 and July 2010, fifty-six percent in 2007 were not completed within the mandatory time frame and, in 2010, seventy-three percent of the reports filed in 2010 were not completed within the mandatory time frame. (Doc. 58-6). Even if investigations were not completed within a particular time frame, this does not mean that investigations were not conducted or were conducted inadequately. The fact that many investigations went longer than the 45 to 90 day time limit may indicate the thoroughness of the investigations just as plausibly as it indicates plaintiff's assertion that the investigations were inadequate. Again, in the absence of some expert explication of the meaning of these numbers, they are not probative of anything, open to
Plaintiff also claims that officers completed a Use of Force Report in only two percent of custodial arrests in 2007, despite the fact that BPD Policy requires a report whenever the use of force is necessary to make an arrest.
Plaintiff asserts that it is virtually impossible that only two percent of custodial arrests in 2007 and one percent in 2008 and 2009 required Level IV control. Plaintiff also argues that, if a proper investigation is being undertaken, that it is similarly unlikely that between 2007 and 2012, of the 2,449 Use of Force Reports completed by BPD officers, 2,366 were found "in policy," 72 had no finding, and only one claim was "sustained" for using excessive force. Plaintiff argues that this, in conjunction with the minute number of formal Form 131 complaints that resulted in discipline in the years 2007-2009 (three each year and only three in January through July 8, 2010) indicates a practice or custom of letting incidents of excessive force go unpunished.
Plaintiff analogizes these facts to those in Kopf v. Wing, 942 F.2d 265 (4th Cir. 1991), in the Fourth Circuit.
Kopf, 942 F.2d at 269 (italics added). The court in Kopf found significant the comparison of unsustained excessive force complaints to the "rather large percentage" of other types of citizen complaints sustained, inferring from this a scheme to allow excessive force by officers to go unpunished. No such comparison is presented in the instant case. As explained by the court, the plaintiff's evidence has no statistical context or expert explanation to establish their meaning in this case.
This circuit also allows for the showing of a custom or policy that is "unwritten." Here, plaintiff has pointed to two incidents prior to the instant case (only one of which involved Officer Davis) that she argues put the City on notice that it needed to re-train officers regarding use of force. This is bolstered by evidence of a breakdown in the procedures and chain-of-command for filing and investigating complaints and using the Early Warning System, as well as unexplained statistics relating to excessive force complaints allegedly being under-sustained and not being investigated within the time constraints provided by BPD's own policies. Taken together, she contends that these facts put the City on notice of widespread excessive-force abuses that required more training or supervision by the City. Unlike Kopf, the court does not believe this evidence creates a dispute of fact regarding the City's or Chief Roper's alleged deliberate indifference to problems in the police force. As explained above, two prior incidents of alleged excessive force do not show abuses of such a widespread character as to put the City on notice of a need to retrain or more closely supervise the entire police force as a matter of policy. Likewise, evidence of a breakdown involving only one or two supervisors (Sgt. Jones and Capt. McCaskey) fails to show a systemic, widespread disregard for the BPD's policies concerning reporting and investigating allegations of excessive force. Also, the statistics offered by plaintiff, without context or expert explanation, have little or no probative value because in and of themselves they only invite the court and a jury to speculate about their meaning. Is twelve instances of discipline out of 125 investigations of alleged excessive force a lot or a little for a police force the size of Birmingham's? Is the filing of Use of Force reports in one to two percent of all arrests made by the BPD a lot or a little? The plaintiff's evidence simply does not allow the court to know the probative significance of these numbers.
Plaintiff alleges that the BPD has failed to properly train Davis and other BPD officers in how to use force and report the use of force. Plaintiff claims that this failure to train results in a custom of officers using excessive force because they are unaware or misinformed about what level of force to use under what circumstances. A city may be liable for failure to train if they are on notice that the failure to train may result in constitutional violations. Cities may be put on notice in one of two ways.
Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288, 1293 (11th Cir.2009) (internal citations omitted)(citing Gold v. City of Miami, 151 F.3d 1346 (11th Cir.1998)). Further, when determining whether a city has failed to adequately train, "`the focus must be on the adequacy of the training programs in relation to the tasks the particular officers must perform,' and not merely on the training deficiencies of a particular officer." Id. (quoting City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).
Plaintiff contends that when the 2008 incident is examined alongside the 2009 Hai Luu incident and the events giving rise to the instant case, it indicates that there is a pattern of constitutional violations by BPD officers and, therefore, the City must be on notice of the need to re-train its officers in proper use of force. Defendants rightly point out that, at the time of the instant case, Davis had no sustained claims of excessive force against him. There is no evidence that Davis was involved in the 2008 Warren incident, and five of those officers were terminated by the City as result of it.
Accordingly, the City's and Chief Roper's motion for summary judgment in regards to Counts III and IV is due to be GRANTED.
Plaintiff is proceeding with state-law claims against only Davis.
According to Alabama Code § 6-5-338(a), a police officer of any municipality in the state "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." Id. Discretionary functions have been deemed to be "those acts as to which there is no hard and fast rule as to the course of conduct that one must or must not take, and those acts requiring exercise in judgment and choice and involving what is just and proper under the circumstances." Moore v. Adams, 754 So.2d 630, 632 (Ala.1999), citing Wright v. Wynn, 682 So.2d 1, 2 (Ala.1996), and L.S.B. v. Howard, 659 So.2d 43 (Ala. 1995). The Alabama Supreme Court has held that immunity applies to the conduct of officers in the effectuation of an arrest. See Ex parte City of Montgomery, 758 So.2d 565, 570 (Ala.1999).
In Ex parte Cranman, 792 So.2d 392 (Ala.2000), the state supreme court set out a detailed test for determining when a state employee is entitled to immunity under § 6-5-338, and changed the focus of such immunity from whether the employee is engaged in a "discretionary function," to the specific provisions of the immunity articulated in Cranman. That restatement of state-agent immunity includes the provision that a state employee is entitled to immunity when "exercising judgment in the enforcement of the criminal laws of the state, including, but not limited to, law enforcement officers' arresting or attempting to arrest persons." 792 So.2d at 405. Since Cranman, a peace officer's entitlement to immunity under § 6-5-338(a) is judged by the principles set forth in Cranman, and not under an analysis of discretionary versus ministerial functions.
In Count V of the complaint, Plaintiff contends that Davis's actions "were willful, malicious, and intentional as to inflict terror and trauma upon Birmingham citizens," and that "[t]he emotional distress caused by the defendants was so severe that no reasonable person could or should be expected to endure it." The elements of the tort, upon which the plaintiff must offer evidence, are the following:
Thomas v. Williams, 21 So.3d 1234, 1237-38 (Ala.Civ.App.2008), (quoting Gunter v. Huddle, 724 So.2d 544, 547 (Ala.Civ.App. 1998)); see also American Road Service Co. v. Inmon, 394 So.2d 361, 365 (Ala. 1980). "[T]he tort of outrage is `a limited remedy to be applied only in flagrantly egregious circumstances.'" Gunter v. Huddle, 724 So.2d 544, 547 (Ala.Civ.App. 1998) (quoting Turner v. Hayes, 719 So.2d 1184, 1187 (Ala.Civ.App.1997)), aff'd in pertinent part, 719 So.2d 1190 (Ala.1998).
It appears to be an open question in Alabama whether a single act can be both an assault and battery and an outrageous intentional infliction of emotional distress. Alabama case law recognizes that a sexual assault can be both torts, see Harrelson v. R.J., 882 So.2d 317 (Ala.2003), but there appear to be no reported cases finding that a non-sexual assault and battery may also be an intentional infliction of emotional distress. Judge Thompson observed in K.M. v. Alabama Department of Youth Services, 360 F.Supp.2d 1253, 1260 (M.D.Ala.2005) (a sexual assault case) that some courts have recognized the tort of outrage in the context of a rape or sexual assault, as Alabama does, but that "[o]ther courts have refused to allow a claim of outrage when the facts fit into a more traditional common-law tort regime, such as assault and battery. These courts reason that the tort of outrage was intended to be a `gap filler' in tort law, allowing for plaintiffs to recover only when they were unable to do so under traditional common-law actions." Id. at 1260. Absent better guidance from state law, the court believes Alabama would recognize the tort of outrage applicable to especially egregious non-sexual assaults, such as the one alleged here. The gravamen of the tort is the intentional infliction of emotional distress. Certainly a terrifying and painful beating at the hands of a person in authority, such as a police officer, has the great potential for causing just such emotional distress above and beyond the physical pain suffered. While it might be argued that an ordinary fight between private persons might not rise to the level of being sufficiently "outrageous" to support the tort, an assault by a police officer, a person sworn to protect citizens and maintain peace and order, is on a different level. The abuse of authority inherent in an unlawful assault by a police officer makes it outrageous for purposes of the tort of outrage.
Taking the facts in the light most favorable to the nonmoving plaintiff, there is at least a question of material fact as to whether Davis intended to inflict emotional
Accepting Plaintiff's version of the facts as true, a reasonable jury could determine that Davis's actions meet the criteria set forth by Alabama law for the tort of outrage and that Davis acted in bad faith, willfully, or maliciously. Accordingly, Davis is not shielded by Alabama's discretionary immunity statute as to Count V, and his motion for summary judgment as to Count V is due to be DENIED.
For all the reasons discussed in this court's analysis of discretionary-function immunity, Davis's conduct (accepting plaintiff's version of the facts as true) was without justification and a reasonable jury could determine that his actions were done in bad faith, maliciously, or willfully, removing the shield of immunity. Accordingly, Davis is not shielded by Alabama's discretionary immunity statute as to Count VI, and his motion for summary judgment as to Count VI is due to be DENIED.
Plaintiff alleges in Count VII of her complaint that Davis, using his position of authority and acting under the color of state law, unlawfully, maliciously, and willfully detained Plaintiff without any civil or criminal violation, depriving her of her personal liberty. Alabama Code § 6-5-170 defines false imprisonment as "consist[ing] of the unlawful detention of the person of another for any length of time whereby he is deprived of his personal liberty." In order to present a valid false imprisonment claim pursuant to an arrest, there must be an absence of arguable probable cause. Boarders v. City of Huntsville, 875 So.2d 1168, 1179-80 (Ala. 2003).
The charges listed on plaintiff's arrest report are disorderly conduct and resisting arrest. (Doc. 60-5). Under Alabama law, "[a] person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he or she does any of the following:
Alabama Code § 13A-11-7. Also, "[a] person commits the crime of resisting arrest if he intentionally prevents or attempts to prevent a peace officer from affecting a lawful arrest of him or of another person." Alabama Code § 13A-11-7 (italics added). In this case, unless Officer Davis had at least arguable probable cause to arrest plaintiff for disorderly conduct, his efforts to arrest her were "lawful" for purposes of charging here with resisting arrest.
Taking the facts given by plaintiff as true, none of her actions rose to the level of disorderly conduct and she did not resist arrest. For these and the reasons discussed in the court's analysis of Plaintiff's unlawful arrest claim under § 1983, supra, there is at least a question as to whether Davis had even arguable probable cause to arrest plaintiff, and absent arguable probable cause, his detention of her for any period of time was unlawful and a false imprisonment. If a reasonable jury could determine that Davis lacked arguable probable cause to arrest plaintiff, that same jury could find that her warrantless arrest without arguable probable cause was in bad faith or malicious, and amounted to a false imprisonment. Accordingly, Davis is not shielded by Alabama's discretionary immunity statute as to Count VII, and his motion for summary judgment as to Count VII is due to be DENIED.
Plaintiff brings Count VIII under § 1983 and, in the event that the court determines that her Fourth Amendment rights were not violated, under Alabama state law. She alleges in her complaint that Davis charged the Plaintiff with a crime and arrested her without probable cause, violating her Fourth Amendment Right to be free from unreasonable seizure, and that the "arrest was executed maliciously through Defendant's unwarranted use of excessive force, which caused Plaintiff extensive physical and psychological injuries." (Doc. 1, p. 12). Ultimately, the criminal charges against Plaintiff were dismissed due to Davis's failure to appear. The court will address this claim under both federal and state law.
To determine whether Plaintiff has adequately set forth her § 1983 claim of malicious prosecution, the court looks to both federal and state law. The Eleventh Circuit Court of Appeals has stated:
Wood v. Kesler, 323 F.3d 872, 881-82 (11th Cir.2003) (footnotes omitted), cert. denied, 540 U.S. 879, 124 S.Ct. 298, 157 L.Ed.2d 143 (2003) (italics in original), citing Uboh v. Reno, 141 F.3d 1000, 1002-04 (11th Cir. 1998); Whiting v. Traylor, 85 F.3d 581, 584 (11th Cir.1996).
The torts of false arrest and malicious prosecution do not overlap in time, according to the Eleventh Circuit Court of Appeals. In Kingsland v. City of Miami, the court explained that a false arrest § 1983 claim may be predicated upon the arrest that precedes the institution of a prosecution, but that a malicious prosecution § 1983 claim requires a post-arraignment seizure that violates the constitution, and may not be predicated on the pre-arraignment seizure. 382 F.3d 1220, 1235-36 (11th Cir.2004). Although Justice Ginsburg set forth in a concurrence her opinion that a "continuing seizure" may occur where a defendant is forced to appear in court or pay a bond, Albright v. Oliver, 510 U.S. 266, 276-79, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), that concept was not adopted by the other justices, and has since been rejected by the Eleventh Circuit Court of Appeals and by other circuits. See, Whiting, 85 F.3d at 584; Reed v. City of Chicago, 77 F.3d 1049, 1052 n. 3 (7th Cir.1996); Nieves v. McSweeney, 241 F.3d 46, 56-57 (1st Cir.2001). The Eleventh Circuit Court of Appeals has explained:
Kingsland v. City of Miami, 382 F.3d 1220, 1235 (11th Cir.2004).
In this case, Plaintiff has not alleged any "significant deprivation of liberty," beyond the alleged warrantless arrest that would support a § 1983 malicious prosecution claim. 382 F.3d at 1235-36. There is no evidence that, following her arrest by Davis, plaintiff was seen by a magistrate or arraigned before being released. It is undisputed that after she was released from the initial arrest, plaintiff was not thereafter "seized" again. Thus, for purposes of a § 1983 claim of malicious prosecution, plaintiff cannot show the requisite Fourth Amendment seizure.
Plaintiff argues that her incarceration of 9 to 15 hours, along with her required appearances at trial settings on at least three different occasions and the fact that she had to hire an attorney to defend against the criminal charge constitute damage. However, these damages are more akin to Justice Ginsburg's "continued seizure" theory that has not been adopted by this circuit. They do not constitute a "post-arraignment seizure." Because plaintiff cannot show a "post-arraignment" seizure, Davis is entitled to summary judgment on her federal § 1983 claim of malicious prosecution.
A claim of malicious prosecution under Alabama law requires a showing of "`(1) a judicial proceeding initiated by the defendant, (2) the lack of probable cause, (3) malice, (4) termination in favor of the plaintiff, and (5) damage.'" Moon
Viewing the evidence favorably to the plaintiff, she has made a prima facie showing of the elements of malicious prosecution under Alabama law. There is no question that Davis initiated the criminal charges against plaintiff and, under her evidence, did so without even arguable probable cause. His epithets directed at plaintiff, calling her a "bitch" and threatening to "break [her] fucking arm," create a factual question as to whether he did so with malice. The judicial proceedings were terminated in plaintiff's favor when the charges against her were dismissed, even if the dismissal was grounded on the City's failure to prosecute rather than on the merits of the charges. Finally, plaintiff suffered damages in having to hire an attorney and expend her time attending court proceedings. Thus, under the version of the evidence presented by the plaintiff (which ultimately may or may not turn out to be true), there is a viable claim for malicious prosecution that must be decided by a jury.
Accordingly Davis's motion for summary judgment as to Count VIII is due to be GRANTED as to plaintiff's federal § 1983 malicious prosecution claim, but DENIED as to her Alabama state-law claim.
Finally, Plaintiff asserts that she is entitled to punitive damages, and the City has moved to have any claim for punitive damages dismissed. Because the City is granted summary judgment on all of plaintiff's claims, she is not entitled to any damages, much less punitive damages, from the City. Accordingly, the motion for summary judgment as to any claim for punitive damages against the City is due to be GRANTED.
In conclusion, Davis's motion for summary judgment regarding Count VIII is due to be GRANTED only with respect to plaintiff's federal § 1983 malicious prosecution claim. Davis's motions for summary judgment regarding Counts I, II, V, VI, VII and VIII (as to the Alabama malicious prosecution claim) is due to be DENIED. A.C. Roper's motion for summary judgment regarding all claims brought against him (Counts III, IV, and V) is due to be GRANTED. The City of Birmingham's motion for summary judgment regarding Counts III, IV, and V, and all other state-law claims purported to be brought against the City, are due to be GRANTED. The City of Birmingham's motion for summary judgment in regards to the award of punitive damages is due to be and is GRANTED.
A corresponding order will be entered contemporaneously herewith.
In accordance with the Memorandum Opinion entered herewith, the motion for summary judgment on behalf of defendants A.C. Roper and the City of Birmingham (in Doc. 34) is due to be and hereby is GRANTED, and all claims pleaded against defendants Roper and the City of Birmingham in this action are DISMISSED WITH PREJUDICE.
Further, the motion for summary judgment filed on behalf of defendant Davis (in Doc. 34) is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to the federal § 1983 claim for malicious prosecution in Count VIII of the complaint, but is DENIED as to Counts I, II, V, VI, VII and that part of Count VIII alleging a malicious prosecution claim under Alabama law.
The motion for summary judgment in Document 35 is MOOT.
