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Ferrell v. City of Tallassee

United States District Court, M.D. Alabama, Northern Division

July 14, 2015

BARBARA FERRELL, Plaintiff,
v.
CITY OF TALLASSEE, Defendant.

REPORT AND RECOMMENDATION

PAUL W. GREENE, Magistrate Judge.

Plaintiff Barbara Ferrell commenced this lawsuit on December 20, 2013, seeking redress for alleged violations of her constitutional rights by a police officer during her arrest in Tallassee, Alabama, on December 20, 2011. Generally, Plaintiff avers that an unnamed Tallassee police officer "groped and continuously and repeatedly grabbed and rubbed the breast and genitals of the Plaintiff" while searching her person after placing her under arrest. (Doc. 1 at pp. 1-2). Plaintiff asserts federal claims, through the remedial vehicle of 42 U.S.C. § 1983, for violations of her rights secured by the Fourth and Eighth Amendments of the U.S. Constitution and state law claims for "assault and battery" under Alabama law. (Doc. 1). The claims are brought against the City of Tallassee, Alabama, and unnamed individual defendants.

This matter is before the court on Defendant's motion for summary judgment on all claims. (Doc. 15). The parties submitted briefs and evidentiary materials. The motion is taken under submission on the record and without oral argument. Upon consideration and for the reasons stated herein, the Magistrate Judge RECOMMENDS that the motion for summary judgment is due to be GRANTED.

I. JURISDICTION AND VENUE

On November 25, 2014, the above-styled matter was referred to the undersigned for review by United States District Judge Myron H. Thompson. (Doc. 14); see also 28 U.S.C. § 636(b); Rule 72, Fed. R. Civ. P.; United States v. Raddatz, 447 U.S. 667 (1980); Jeffrey S. v. State Board of Education of State of Georgia, 896 F.2d 507 (11th Cir. 1990).

Subject matter jurisdiction over Plaintiff's federal claims is conferred by 28 U.S.C. § 1331. The court may exercise supplemental jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. § 1367. The parties do not dispute venue or personal jurisdiction, and there are adequate allegations in Plaintiff's Complaint to support both.

II. SUMMARY JUDGMENT STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56, 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 judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000).[1] The party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings or filings which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met its burden, Rule 56 requires the nonmoving party to go beyond the pleadings and, by its 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. Celotex, 477 U.S. at 324.

The substantive law will identify which facts are material and which are irrelevant. Chapman, 229 F.3d at 1023; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. See Chapman, 229 F.3d at 1023; Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). When opposing a motion for summary judgment, however, the nonmovant can no longer rest on mere allegations, but must set forth evidence of specific facts. See Lewis v. Casey, 518 U.S. 343 (1996) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; Chapman, 229 F.3d at 1023. If the evidence [presented by the nonmoving party to rebut the moving party's evidence] is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249.

III. BACKGROUND AND STATEMENT OF RELEVANT FACTS[2]

On December 20, 2011, City of Tallassee police officers arrested Plaintiff and her son during an undercover drug operation. Prior to the arrest, at the direction of Tallassee police officers, a confidential informant arranged to purchase crack cocaine from Plaintiff's son, Mr. Jessie Ferrell. The confidential informant telephoned Mr. Ferrell while the police covertly listened and recorded the conversation. The two agreed that Mr. Ferrell would deliver crack cocaine by placing it in the informant's mailbox, and the informant was to leave $300.00 inside the mailbox to pay Mr. Ferrell for the drugs. The informant told police that Mr. Ferrell would likely arrive in a silver automobile, possibly with a female driver.

The police instructed the informant to wait at his residence for Mr. Ferrell to deliver the crack cocaine. Police officers positioned themselves near the residence and waited. Sometime later, they observed a silver Dodge sedan stop at the informant's mailbox. Plaintiff drove the sedan. One police officer witnessed Mr. Ferrell, who was in the passenger seat of the vehicle, open the informant's mailbox. Police officers approached the vehicle with guns drawn and ordered the occupants to exit the car and lie on the ground. Plaintiff and Mr. Ferrell were then handcuffed.

A police officer assisted Plaintiff to her feet. While Plaintiff was handcuffed and standing, a male police officer performed a search of her person. (Doc. 15-1 at p. 14). That was the only time Plaintiff was searched after her arrest.[3] Also, while her Complaint alleges that she was subjected to a "strip search, " Plaintiff testified that she was fully clothed during the search. (Doc. 15-1 at p. 21).

Plaintiff testified that the search was "fast" and a "normal search."[4] (Doc. 15-1 at p. 16). The police officer who searched Plaintiff did not speak to her or issue any verbal commands. (Doc. 15-1 at p. 20). During the search, the police officer touched Plaintiff's breasts and genitals. (Doc. 15-1 at p. 15). The officer did not touch the bare skin on Plaintiff's breasts nor did he put his hands inside of Plaintiff's sweatshirt or bra. He felt under, between, and around her breasts, through her clothes. (Doc. 15-1 at pp. 15-16). He also ran his hands up and down her legs and thighs, but he did not expose or touch Plaintiff's skin. (Doc. 15-1 at pp. 15-17). Plaintiff testified that the searching officer "rubbed repeatedly... in my ...


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