United States District Court, Middle District of Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
W. Keith Watkins, CHIEF UNITED STATES DISTRICT JUDGE.
This 42 U.S.C. § 1983 and state-law action arises from an incident in which a City of Dothan police dog bit Plaintiff without a command from his handler, Corporal William Phares. Before the court are Plaintiff’s and Defendants’ cross motions for summary judgment, responses, and replies. (Docs. # 30, 31, 32, 33, 36, 37, 39, 40.) The parties have fully briefed the motions and have submitted evidence in support of their opposing positions. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that on the federal-law claims, Defendants’ motion is due to be granted and Plaintiff’s motion is due to be denied. Because the court declines supplemental-jurisdiction over the state-law claims, the cross motions are due to be denied as moot on the state-law claims.
I. JURISDICTION AND VENUE
Subject-matter jurisdiction is proper pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. Personal jurisdiction and venue are uncontested.
II. STANDARD OF REVIEW
To succeed on summary judgment, the movant must demonstrate “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The court must view the evidence and the inferences from that evidence in the light most favorable to the nonmovant. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).
The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying the portions of the record illustrating the absence of a genuine dispute of material fact. Id. Or a movant who does not have a trial burden of production can assert, without citing the record, that the nonmoving party “cannot produce admissible evidence to support” a material fact. Fed.R.Civ.P. 56(c)(1)(B); see also Fed. R. Civ. P. 56 advisory committee’s note (“Subdivision (c)(1)(B) recognizes that a party need not always point to specific record materials. . . . [A] party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact.”). If the movant meets its burden, the burden shifts to the nonmoving party to establish – with evidence beyond the pleadings – that a genuine dispute material to each of its claims for relief exists. Celotex, 477 U.S. at 324. A genuine dispute of material fact exists when the nonmoving party produces evidence allowing a reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).
A. The Facts Surrounding Mr. Wilson’s Dog-Bite Injury on April 14, 2012
In April 2012, Mr. Wilson worked as a bus driver for Bay Limousine Company, which operates out of a facility in Dothan, Alabama. The facility includes both warehouse and office space.
Because Mr. Wilson commuted approximately ninety miles from his residence in Panama City Beach, Florida, to Dothan, his employer provided him accommodations for sleeping and showering between assigned driving routes. These accommodations were located in a room behind the owner’s office and had two locking doors. During the evening of April 13, 2012, Mr. Wilson settled in for a night’s sleep in the employer-provided room at the Bay Limousine facility, and he locked the room’s two doors. Unbeknownst to Mr. Wilson, another driver, Robert Floyd, was en route to Bay Limousine to return a company car, and, upon his arrival at 11:40 p.m., Mr. Floyd observed an unfamiliar vehicle drive around to the back of the facility. To avoid a confrontation with the individual in that vehicle, Mr. Floyd left the area and called the Dothan Police Department. Officer Jack Hunt responded to the call and met Mr. Floyd at an intersection near Bay Limousine. Corporal Phares and his canine partner, Kazan, and Officer Chris Miller responded as Officer Hunt’s backup.
The officers and Mr. Floyd returned to Bay Limousine, which is located in a known high-crime area, but the suspicious vehicle was no longer there. Mr. Floyd informed the officers that he “could not tell if someone had entered the building because the door is usually left unlocked.” (Floyd’s Aff., at 2.) He also said that, to his knowledge, no employees were inside the building. Mr. Floyd then requested the officers to search the building for intruders.
Corporal Phares retrieved his canine partner, Kazan, and Officer Miller joined them at the building’s entrance. Before entering, Corporal Phares gave three loud commands, “Dothan Police Department, K-9 is entering the building[. S]peak now or you could be bit[ten].” (Phares’s Aff., at 2.) According to Corporal Phares and Officer Miller, the commands “were loud enough that anyone in the building could have heard [the] warnings.” (Phares’s Aff., at 2; Miller’s Aff., at 2.) After the oral commands elicited no response, the two police officers and the canine entered the dark building and began a search of the warehouse area where the company vehicles are stored. After a few minutes, Corporal Phares unleashed Kazan to complete the search. When the officers and Kazan reached the “far end of the building” in the warehouse area, Officer Hunt entered the main entrance’s doorway and yelled to ask if they needed assistance. Corporal Phares yelled back using a curse word, commanding Officer Hunt to get out of the building so as to not interfere with Kazan’s search for human scent.
Kazan did not detect a person in the warehouse area of the building. Kazan and his handler then moved toward the office space where Kazan alerted to human scent. Tracking the scent down a narrow hallway, Kazan stopped and sat down in front of a closed door, which he is trained to do when he detects a person.
By that time, Mr. Wilson had been awakened by Corporal Phares’s earlier cursing and the sound of a pipe or similar object hitting the floor. Mr. Wilson could see shadows moving under the door, and then all of a sudden, the locked door to his room “was kicked in or otherwise broken into in a loud and violent fashion.” (Pl.’s Aff., at 1.) Corporal Phares entered the room, and three feet in front of him was Mr. Wilson, a 6' 2" tall, 245-pound man. Corporal Phares did not issue a command for Kazan to apprehend Mr. Wilson; however, according to Corporal Phares, Kazan perceived a threat to Corporal Phares’s safety based on Mr. Wilson’s sudden and close presence and, pursuant to his training, immediately lunged toward Mr. Wilson to protect his handler from that threat. Kazan “bit [Mr. Wilson] on the [right] leg, ” tearing two holes in his pants leg, and “shook [him] until he was brought to the ground.” (Pl.’s Aff., at 2.) After Mr. Wilson was on the floor, Corporal Phares tried physically and with oral commands to get Kazan to retreat, but the dog continued to bite and hold onto Mr. Wilson. Corporal Phares then pulled Kazan’s collar off in an attempt to get Kazan to stop holding and biting Mr. Wilson’s leg. Ultimately, Corporal Phares succeeded, and Kazan released his hold on Mr. Wilson. Mr. Wilson does not provide a time frame for the attack, but Corporal Phares says that within four to eight seconds of the dog’s “engaging Mr. Wilson, ” he grabbed Kazan by the neck and pulled him off. (Phares’s Aff., at 3.)
Mr. Wilson explained to the officers that he “live[d] and work[ed]” at the business. (Offense Report, at 2.) At that point, Corporal Phares took Kazan to the patrol car, but then returned to the room where he had found Mr. Wilson. Upon further questioning, Mr. Wilson said that he did not hear Corporal Phares’s initial warning. He said, however, that he did hear the loud utterance of a curse word but that he thought that an irate employee was yelling at the camera system. It is undisputed that Mr. Wilson was not arrested or charged with a crime or forcefully removed from the premises of Bayside Limousine.
That evening, while the officers still were at the scene, Corporal Phares requested paramedics to respond to examine Mr. Wilson’s bite wound, and Mr. Wilson received treatment at a local hospital. The hospital physician diagnosed the wound as a “superficial laceration, ” which was cleaned with saline and polysporin ointment. Mr. Wilson also received a tetanus shot.
B. Dothan Police Department’s Canine Policy
Pursuant to a policy that meets the standards established by the Commission on Accreditation of Law Enforcement Agencies, the Dothan Police Department uses canine units as part of its repertoire of law enforcement tools. The canine policy in effect in April 2012 authorized canine force when necessary to make an arrest of an offender, when probable cause existed for a felony or a misdemeanor involving a crime of violence, or to protect the canine officer or other law enforcement officer from injury or death. (Policy, at 4 (Doc. # 31, at 7).) The policy also set out a protocol for a building search. Under that policy, both “on” and “off lead” searches by the canine are permissible. Before entering the building, though, the canine officer must make every effort to verify that innocent or authorized individuals are not in the building, and the canine officer must announce that his or her trained police canine is about to search the building.
During the search, only the canine, his or her handler, and another officer (if requested) can enter the building.
C. This Lawsuit
Believing that the Dothan Police Department had violated his legal rights, Mr. Wilson, proceeding pro se, filed a verified complaint on April 14, 2014.Shortly into the litigation, Mr. Wilson obtained counsel, who filed the operative Amended Complaint. The Amended Complaint contains eight counts – six under federal law and two under state law – against the City of Dothan and Corporal Phares in his individual capacity. The Amended Complaint predicates subject-matter jurisdiction under §§ 1331 and 1343 as to the federal-law claims and under § 1367 as to the state-law claims.
Counts One, Two, and Three of the Amended Complaint are Fourth and Fourteenth Amendment claims brought pursuant to § 1983 against Corporal Phares for false arrest, excessive force, and warrantless entry/search. Counts IV, VI, and VII allege § 1983 claims against the City of Dothan for its alleged unconstitutional customs, policies, and deficient training that allegedly caused the violations of Mr. Wilson’s constitutional rights. Counts VIII and IX allege state-law claims for false arrest, negligence, and wantonness against Corporal Phares. After a period of discovery, the parties filed cross motions for summary judgment, and the motions are ready for disposition.
The following discussion addresses: (1) the § 1983 claims against Corporal Phares under the qualified immunity standard; (2) the § 1983 claims against the City of Dothan; and ...