United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE
Larry Wardlow (“Wardlow”) initiated this action
against Officer Michael Whiten alleging federal claims
pursuant to 42 U.S.C. § 1983 for excessive force,
unlawful arrest, and malicious prosecution and state law
claims for assault and battery and malicious prosecution.
(Doc. 1). Wardlow amended his complaint to include
allegations against Birmingham Chief of Police A.C. Roper in
all but the state law assault and battery
claim. (Doc. 3). Defendants now move for summary
judgment. (Doc. 35). The motion is fully briefed and ripe for
review. (Docs. 36, 37, & 38). For the reasons stated below,
Defendants' motion for summary judgment is GRANTED IN
PART and DENIED IN PART.
Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper if the pleadings, the discovery, and
disclosure materials on file, and any affidavits “show
that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of
law.” “Rule 56 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.” Celotex Corp. v.
Catrett, 447 U.S. 317, 322 (1986). The moving party
bears the initial burden of proving the absence of a genuine
issue of material fact. Id. at 323. The burden then
shifts to the nonmoving party, who is required to “go
beyond the pleadings” to establish there is a
“genuine issue for trial.” Id. at 324.
(citation and internal quotation marks omitted). A dispute
about a material fact is genuine “if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
Court must construe the evidence and all reasonable
inferences arising from it in the light most favorable to the
non-moving party. Adickes v. S.H. Kress & Co., 398
U.S. 144, 157, (1970); see also Anderson, 477 U.S.
at 255 (all justifiable inferences must be drawn in the
non-moving party's favor). Any factual disputes will be
resolved in Plaintiff's favor when sufficient competent
evidence supports Plaintiff's version of the disputed
facts. See Pace v. Capobianco, 283 F.3d 1275,
1276-78 (11th Cir. 2002) (a Court is not required to resolve
disputes in the non-moving party's favor when that
party's version of the events is supported by
insufficient evidence). However, “mere conclusions and
unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per
curiam) (citing Bald Mtn. Park, Ltd. V. Oliver, 836
F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere
‘scintilla' of evidence supporting the opposing
party's position will not suffice; there must be enough
of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577
(11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
Summary Judgment Facts
Whiten (“Whiten”) has been an officer with the
Birmingham Police Department for eighteen years. (Doc. 35-1
at 4, 21). He has been arrested once, for assault and
harassment following a bar fight with a former coworker,
Chris Johnson, who had started dating Whiten's
ex-girlfriend. (Id. at 21). Whiten was put on
administrative duty. (Id.). Several months later,
Johnson approached Whiten in a parking lot and they exchanged
words. (Id.). After the conversation in the parking
lot, Johnson filed harassment charges against Whiten.
(Id.). Whiten was found guilty after a trial and
placed on administrative duty for approximately sixteen
months; the charges against him were nolle prossed after he
attended counseling sessions. (Id. at 23, 43-44).
2013, Whiten also worked security for Black Market Bar and
Grill (“Black Market”), a private business, every
other Friday evening. (Id. at 4-6). On Friday, March
1, 2013, Whiten worked his usual shift, from 8:30 a.m. to
5:00 p.m., in the detective bureau at the police department.
(Id. at 6). He then went home until he had to start
his security shift at Black Market at approximately 9:00 or
10:00 p.m. (Id. at 6-7). Once at Black Market, per
his usual routine, Whiten poured himself a soda and stood at
the end of the bar. (Id. at 7). Approximately
forty-five minutes after he arrived, Whiten first saw Wardlow
sitting a few barstools down from where he was standing.
(Id.). To his knowledge, Whiten had not met Wardlow
before that evening. (Id. at 20).
same day, Wardlow returned home from a trucking job and did
some chores. (Doc. 36-3 at 7). At approximately 10:15 p.m.,
Wardlow walked a few blocks from his apartment to Black
Market, where he had never been. (Id. at 7, 16). He
took a seat near the end of the bar and, after ordering a
beer, he introduced himself and made small talk with the
people sitting around him. (Id. at 7-8).
periodically making eye contact with him, Wardlow asked if
Whiten was drinking while on duty. (Doc. 35-1 at 8; doc. 36-3
at 8). Wardlow believed Whiten was drinking alcohol, and
Whiten never told Wardlow he was not drinking. (Doc. 36-3 at
Whiten grew angry that Wardlow had inquired about his
drinking and responded that he could have Wardlow arrested
for whatever he wanted. (Id.). Sensing possible
tension, Wardlow excused himself to the restroom for a few
minutes before returning to his seat, hoping things with
Whiten had cooled. (Id. at 10).
Wardlow returned to his seat from the restroom, Whiten walked
out of the bar on his phone, and Wardlow thought he was
leaving for the evening. (Doc. 36-3 at 11). Whiten returned a
few minutes later with a blonde woman. (Id.). The
blonde woman sat down beside Wardlow, who said hello to her.
(Id.). At that point, Whiten “blew up”
at Wardlow and made physical contact with him, causing
Wardlow's face to hit the bar. (Id.). Wardlow
did not remember leaving the bar or fighting Whiten, but the
two somehow ended up outside, where Whiten picked up Wardlow,
tackled him, and hit him in the face two or three times.
(Doc. 36-1 at 8; doc. 36-3 at 12).
remembered waking up in a CT scan machine, but he did not
remember going to the hospital. (Doc. 36-3 at
When he woke up and started moving, the nurse told him to
remain still because they were scanning his fractured eye
socket. (Id.). Wardlow could recalled speaking to
the blonde woman and having his face smashed into the bar,
which made him upset; he then got up, hobbled out of the
room, and shouted at Whiten, demanding to know why Whiten had
attacked him. (Id. at 14.). When Wardlow told Whiten
he would be in trouble for attacking him when others saw the
security footage, Whiten laughed and told him that the bar
only had security videos at the front door, so the video did
not get anything on him. (Id.). Whiten attempted to
escort Wardlow back into the hospital room but both men
“stuck [their] hands out, ” after which Whiten
tripped Wardlow and handcuffed him. (Doc. 36-3 at
screamed at the bouncers and at Whiten, shouting at Whiten
that he would wait on the sidewalk and would get him when his
shift ended. (Id. at 9). After a few minutes of this
behavior, Whiten walked outside to place Wardlow under
arrest; he grabbed Wardlow by the left bicep and then Wardlow
grabbed Whiten's throat with his right hand.
(Id.). Whiten immediately let go of Wardlow's
arm, at which point Wardlow used both arms to put Whiten in a
headlock. (Id.). Whiten grabbed Wardlow's legs
and tackled him to the ground; Whiten landed on top of him
and struck him in the face maybe two or three times.
(Id.). When Wardlow was still, Whiten rolled him
over onto his stomach and handcuffed him. (Id.)
Whiten then called for backup and for medics to examine
Wardlow's bloody nose. (Id. at 10).
left the hospital at approximately 6:00 a.m., after another
officer came to take Wardlow to jail. (Doc. 35-1 at 18; doc.
36-3 at 16). Wardlow remained in jail for about one day.
(Doc. 36-3 at 17). Wardlow ultimately pleaded guilty to
police harassment for the incident in the hospital. (Doc.
36-3 at 16-17; doc. 36-6).
Municipal Liability - Count A
argue the City, through Chief Roper in his official capacity
as Chief of Police, cannot be held liable under Count A,
Wardlow's § 1983 claim for unreasonable or excessive
force. (Doc. 35 at 7). “[A] municipality cannot be held
liable under § 1983 on a respondeat superior
theory.” Monell v. Dep't of Soc. Serv.,436 U.S. 658, 691 (1978). This means that, “to impose
liability on a municipality under § 1983[, a plaintiff
must] identify a municipal ‘policy' or
‘custom' that caused the plaintiff s injury.”
Bd. of County Com'rs of Bryan County, Okl. v.