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Heining v. City of Anniston

United States District Court, N.D. Alabama, Eastern Division

September 26, 2017

RONALD DALE HEINING and TYLER WADE HEINING, Plaintiffs,
v.
CITY OF ANNISTON, ALABAMA; DON HOYT, individually and in his official capacity; and DARYL ABERNATHY, individually and in his official capacity; Defendants.

          MEMORANDUM OPINION

          VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION AND PROCEDURAL HISTORY

         Plaintiffs Ronald Dale Heining (“Ronald Heining”) and his son, Tyler Wade Heining (“Tyler Heining”), initiated this civil rights lawsuit on August 12, 2015, against Defendants City of Anniston (the “City”), Don Hoyt (“City Manager Hoyt”) (sued both individually and in his official capacity as City Manager), Robert J. Dean, Jr. (“City Public Works Director Dean”) (sued both individually and in his official capacity as Public Works Director for the City), and Daryl Abernathy (“City Assistant Street Superintendent Abernathy”) (sued both individually and in his official capacity as Assistant Street Superintendent for the City) (City Manager Hoyt, City Public Works Director Dean, and City Assistant Street Superintendent Abernathy are sometimes referred to collectively as the “Individual Defendants”). (Doc. 1). Plaintiffs filed a First Amended Complaint (Doc. 5) on August 26, 2015, pursuant to this court's Order Requiring Repleader (the “Repleader Order”). (Doc. 4). The First Amended Complaint contains sixteen causes of action-half of which allege federal claims and the other half of which assert state law claims.

         PLAINTIFFS' FEDERAL LAW CLAIMS

         Specifically, Plaintiffs' federal claims are - with the exception of Count Eight - all constitutional claims by and through 42 U.S.C. § 1983. They are described with more particularity below.

         • Count One (asserted against all Defendants and in all capacities) for unlawful seizure in violation of Plaintiffs' Fourth and Fourteenth Amendment rights. (Doc. 5 at 6-8 ¶¶ 26-36);

         • Count Two (asserted against all Defendants and in all capacities) for malicious prosecution in violation of Plaintiffs' Fourth and Fourteenth Amendment rights. (Id. at 9-10 ¶¶ 37-44);

         • Count Three (asserted against all Defendants and in all capacities) for abuse of process in violation of Plaintiffs' Fourth and Fourteenth Amendment rights. (Id. at 10-12 ¶¶ 45-52);

         • Count Four (asserted against all Defendants and in all capacities) for a non- specific deprivation of liberty in violation of Plaintiffs' Fifth and Fourteenth Amendment rights. (Id. at 12-14 ¶¶ 53-63);

         • Count Five (asserted against all Defendants and in all capacities) for a non- specific deprivation of liberty in violation of Plaintiffs' Fifth and Fourteenth Amendment rights. (Id. at 15-17 ¶¶ 64-75);

         • Count Six (asserted against all Defendants and in all capacities) for a non- specific deprivation of liberty in violation of Plaintiffs' Sixth and Fourteenth Amendment rights. (Id. at 17-19 ¶¶ 76-86);

         • Count Seven (asserted against all Defendants and in all capacities) for a non-specific deprivation of liberty in violation of Plaintiffs' Sixth and Fourteenth Amendment rights. (Id. at 20-22 ¶¶ 87-97); and

         • Count Eight (asserted against all Defendants and in all capacities) for conspiracy to commit constitutional violations brought pursuant to 42 U.S.C. § 1985. (Id. at 22-24 ¶¶ 98-108).

         PLAINTIFFS' STATE LAW CLAIMS

         Plaintiffs' state law counts are as follows:

• Count Nine (asserted against all Defendants and in all capacities) for false arrest and imprisonment. (Id. at 25-26 ¶¶ 109-113);
• Count Ten (asserted against all Defendants and in all capacities) for assault and battery. (Id. at 26-27 ¶¶ 114-118);
• Count Eleven (asserted against all Defendants and in all capacities) for malicious prosecution. (Id. at 27-28 ¶¶ 119-124);
• Count Twelve (asserted against all Defendants and in all capacities) for abuse of process. (Id. at 28-29 ¶¶ 125-130);
• Count Thirteen (asserted against all Defendants and in all capacities) for negligence. (Id. at 29-30 ¶¶ 131-136);
• Count Fourteen (asserted against all Defendants and in all capacities) for wantonness. (Id. at 30-31 ¶¶ 137-142);
• Count Fifteen (asserted against the City pursuant to Ala. Code § 11-47- 190)1 for neglectfulness. (Id. at 31-32 ¶¶ 143-146); and
• Count Sixteen (asserted against all Defendants and in all capacities) for conspiracy. (Id. at 32-33 ¶¶ 147-151).[1]

         THE PENDING MOTION

         Pending before the court is Defendants' Motion for Summary Judgment (Doc. 34) (the “Motion”) filed on February 28, 2017. The parties have supported and opposed the Motion. (Docs. 35, 38-40, 46, 51, 54). Accordingly, the Motion is ready for disposition and, for the reasons explained below, is due to be GRANTED. Specifically, all of Plaintiffs' federal claims are due to be DISMISSED WITH PREJUDICE as to all Defendants. Further, all of Plaintiffs' state law claims are due to be DISMISSED WITH PREJUDICE as to all Defendants other than Robert J. Dean, Jr. in his individual capacity and Daryl Abernathy in his individual capacity. Additionally, all of Plaintiffs' state law claims against Robert J. Dean, Jr. in his individual capacity and Daryl Abernathy in his individual capacity are also due to be DISMISSED WITH PREJUDICE except for their claims against those individuals in their individual capacities that are set out in Counts Nine (false arrest and false imprisonment) Count Eleven (malicious prosecution), Count Twelve (abuse of process), and Count Sixteen (conspiracy to commit these torts). Finally, the court finds that no federal claims remain and declines to exercise it supplemental jurisdiction over Plaintiffs' remaining state law claims. Accordingly, such claims are due to be DISMISSED WITHOUT PREJUDICE.

         II. FACTUAL BACKGROUND [2] [3]

         Tyler Heining, together with his mother, owned a janitorial business known as B&T Supplies (“B&T”) that sold various items like toilet tissue, paper towels, handsoap, road deicer, and degreaser to the City. AF No. 1;[4] (Doc. 35-2 at 8 at 25- 28).[5] Ronald Heining helped out with the company, including making sales contracts with the City. AF No 1; (Doc. 35-2 at 9 at 29); (Doc. 35-1 at 54 at 33);[6]AF No. 2.

         According to Ronald Heining, in June or July of 2012, some unknown person (or persons) slipped a sealed envelope under the door of B&T. AF No. 3.1. The envelope stated, “Deliver Ben Little.” AF No. 3.2. Ben Little (“Councilman Little”) was an Anniston Councilman. AF No. 3.3. Ronald Heining testified that he did not know Councilman Little and found it odd that someone would slip an envelope under the door of B&T for Councilman Little. AF No. 4.

         Inside the envelope were two or three sheets of paper concerning ethical violations committed by City officials, particularly within in the public works department. AF No. 5.1. Ronald Heining delivered the envelope to Councilman Little. AF No. 5.2. After Councilman Little read the envelope's contents, he and Ronald Heining went to the office of City Manager Hoyt. AF No. 6. Hoyt then read the two or three sheets of paper and said he would investigate the matter. AF No. 6.

         Hoyt testified that this meeting with Councilman Little and Ronald Heining was actually the second time that Ronald Heining had come to see him (Hoyt). AF No. 7.1.[7] On the first occasion, Ronald Heining had come alone and accused City Public Works Director Dean, the head of the public works department, of not having proper credentials to hold his position. AF No. 7.2.[8] Hoyt conducted an investigation of that allegation. AF No. 8.1.[9] Hoyt testified that even though Dean did not have an engineering degree (Doc. 40-2 at 36), Hoyt concluded that whoever had alleged that Dean lacked the proper credentials was wrong. AF No. 8.2.[10]

         Hoyt also conducted an investigation of each of the allegations of impropriety within the Public Works Department that were presented to him by Councilman Little and Ronald Heining. (Doc. 35-1 at 45-46); (Doc. 35-5 at 26). During his investigation, Hoyt had a meeting with the Public Works Department to discuss the rumors and allegations, to inform the employees that he would investigate and prepare a report, and to tell the employees to refrain from spreading rumors. AF No. 12.

         Holt took no action against Dean and City Assistant Street Superintendent Abernathy after investigating the allegations. Plaintiffs question the thoroughness of Hoyt's investigation and point out that each man later pleaded guilty to an ethics violation related to the conduct that Hoyt investigated. (Doc. 51 at 5-6 ¶ 10); (Doc. 38-4 at 47-51);[11] (Doc. 40-4 at 54-55).[12]

         James Fluker (“Mr. Fluker”), a laborer who formerly worked for the City Public Works Department, has sworn in an affidavit dated July 11, 2015, [13] that he was recruited by the Individual Defendants to set up both Councilman Little and Plaintiffs.[14] Although the timeline provided by Mr. Fluker is not entirely clear, Mr. Fluker testified that during a meeting that took place at the old National Guard Armory, Dean and Abernathy “confronted [him] about talking to [Councilman] Little” and “asked [him] to meet privately with [them] and Hoyt while at the Armory meeting.” (Doc. 5-1 at 2 ¶ 11). “Dean told [Mr. Fluker] that if [he] didn't help them to set up [Councilman] Little, then they would fire [him].” (Doc. 5-1 at 2 ¶ 12). Mr. Fluker maintains that Dean and Abernathy “asked [him] to call [Councilman] Little and get [Councilman Little] to ask [Mr. Fluker] to get a copy of a DVD dealing with a stolen trailer.” (Doc. 5-1 at 2 ¶ 12).

         Abernathy then took Mr. Fluker to Dean's office. (Doc. 5-1 at 1 ¶ 6). Dean was already there and stated that “he wanted [Councilman] Little gone because they wanted to contract our jobs.” (Doc. 5-1 at 1 ¶ 6). Hoyt subsequently walked into the office and “said to [Mr. Fluker] that [he] was doing the right thing by helping to prosecute [Councilman] Little.” (Doc. 5-1 at 1 ¶ 7).

         Around this same time, Mr. Fluker and Ronald Heining attended a City Council Meeting in which Councilman Little read and discussed the accusations of impropriety against the City Public Works Department. AF No. 16.1 Mr. Fluker sat next to Ronald Heining, and, according to Ronald Heining, Mr. Fluker confided that he had previously placed coolant seal belonging to the City on Abernathy's truck for his personal use. AF No. 16.2. After the City Council Meeting, Ronald Heining introduced Mr. Fluker to Councilman Little as “the guy that put coolant seal on Daniel [sic] Abernathy's vehicle.” AF No. 17.

         Lt. Allen George (“Lt. George”) was the police investigator who was in charge of investigating Mr. Fluker's fabricated allegations that Councilman Little had asked him to steal the security footage DVD. AF No. 19.1. When Lt. George learned about the DVD allegations involving Councilman Little, he met with Dean, Abernathy and Mr. Fluker in Dean's office. AF No. 19.2. Hoyt was not present at this meeting. AF No. 19.3.

         After Lt. George completed his investigation, Councilman Little was arrested and charged criminally. AF No 23.1. Although Councilman Little was found guilty at the district court level, he appealed that decision and his criminal case was later nolle prossed. AF No. 23.2.

         Mr. Fluker further states in his affidavit that, at some point in August of 2012, Abernathy came to see Mr. Fluker while he was on a lunch break during work. (Doc. 5-1 at 1 ¶ 4). According to Mr. Fluker, “Mr. Abernathy told [Mr. Fluker] to come with him to file a police report against Ronald Heining and his son, Tyler Heining.” (Doc. 5-1 at 1 ¶ 5). Abernathy explained to Mr. Fluker that if he agreed to “set up” Plaintiffs, then he would receive “a pay raise and . . . comp time.” (Doc. 5-1 at 2 ¶ 13).

         More specifically as it pertains to the “set up” of Plaintiffs, Mr. Fluker has testified that Dean and Abernathy, “came up with a story about [Plaintiffs'] meeting [Mr. Fluker] at Scotts Grocery and attempting to bribe [Mr. Fluker] and influence [him] so [he] would not testify against [Councilman] Little.”[15] (Doc. 5-1 at 2 ¶ 14). After “agree[ing] to [tell] that false story, [Mr. Fluker] went across the street with Abernathy” to the Anniston Police Department and made the false report about Plaintiffs to Lt. George. (Doc. 5-1 at 2 ¶¶ 15, 16).

         According to the Alabama Uniform Incident/Offense Report (the “Report”) dated August 23, 2012, attached as an exhibit to Ronald Heining's deposition, Mr. Fluker reported that he had received threats by phone and was followed by Ronald Heining for “an extended period of time” on August 14, 2012. (Doc. 35-1 at 30). The Report further reflects that Mr. Fluker felt “that all of these actions [were] because of him coming forward against Councilman Little.” (Doc. 35-1 at 30).

         Mr. Fluker also indicated that on August 18, 2012, at approximately 7:00 p.m., he and his wife Amy were purchasing fuel at Scott's Grocery when Ronald Heining and an individual Mr. Fluker believed to be Tyler Heining pulled up in a small black sports utility vehicle and Ronald Heining stated, “I have $1, 000 cash if you don't go to trial with Ben Little and keep your mouth shut.” (Doc. 35-1 at 30). Mr. Fluker further reported that Ronald Heining kept saying, “take the money, you know you need the money, just take it.” (Doc. 35-1 at 31). The Report also states that when Mr. Fluker would not take the money, Ronald Heining told him, “I will be at Ben Little's trial and will be on his side and testify about all of this crap” before driving away “at a high rate of speed like he was mad.” (Doc. 35-1 at 31).

         Mr. Fluker identified Tyler Heining from a photographic lineup. AF No. 30.1. Mr. Fluker's wife confirmed the encounter at Scott's Grocery, but was unable to identify either Ronald Heining or Tyler Heining. AF No. 30.2.

         On August 24, 2012, Ronald Heining and Tyler Heining were both arrested and charged with intimidating a witness, an alleged violation of Ala. Code § 13A-10-123, and bribing a witness, an alleged violation of Ala. Code § 13A-10-121. AF No. 31. Both Ronald and Tyler Heining were placed in jail for about two to three hours before being released on bond.[16] AF No. 32.

         After the August 2012 arrest, Ronald Heining was arrested for disorderly conduct as the result of complaints made by Nicole Dean, the wife of City Public Works Director Dean. AF No. 33.1. Ronald Heining was arrested a third time on October 24, 2012, again for intimidating a witness, this time in relation to allegations made by City Assistant Street Superintendent Abernathy. AF No. 33.2.

         From the time of their arrests, Ronald and Tyler Heining have denied any involvement in any alleged bribery or intimidation of Mr. Fluker. AF No. 36.1. More specifically, in January 2013, Ronald and Tyler Heining told their criminal defense attorney that they were somewhere else when the alleged bribery and intimidation of Mr. Fluker supposedly occurred and provided a list of alibi witnesses to corroborate their story. AF No. 36.2.

         On April 9, 2015, the bribery and intimidation charges stemming from Ronald and Tyler Heining's August 2012 arrests were nolle prossed by [Assistant District Attorney] Randy Moeller (“Mr. Moeller”). AF No. 37. When questioned about the decision not to prosecute these charges, Mr. Moeller recalled that “Mr. Fluker had issues. He was a problematic witness.” (Doc. 35-7 at 4 at 11).[17] Mr. Moeller also confirmed that Mr. Fluker had received more charges. Id.

         III. STANDARDS

         Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 2265 (1986) (“[S]ummary 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.”) (internal quotation marks omitted). The party requesting 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 that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553. Once the moving party has met its burden, Rule 56(c) requires the non-moving party to go beyond the pleadings in answering the movant.[18] Id. at 324, 106 S.Ct. at 2553. By its own affidavits - or by the depositions, answers to interrogatories, and admissions on file - it must designate specific facts showing that there is a genuine issue for trial. Id.

         The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d. 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000). Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249, 106 S.Ct. at 2511.

         How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact - that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citing United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce “significant, probative evidence demonstrating the existence of a triable issue of fact.” Id. (emphasis added).

         For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 2183, 135 L.Ed.2d 606 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.

         III. THE STATUTE OF LIMITATIONS, ACCRUAL, AND TOLLING

All constitutional claims brought under § 1983 are tort actions and, thus, are subject to the statute of limitations governing personal injury actions in the state where the § 1983 action has been brought. See Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Alabama law creates a two-year statute of limitations for personal injury actions. See Ala. Code § 6-2-38. Therefore, if any of [Plaintiffs'] claims accrued prior to ... two years prior to the date [they] filed this lawsuit-they are time barred by the statute of limitations.

Boyd v. Warden, Holman Corr. Facility, 856 F.3d 853, 872 (11th Cir. 2017). Thus, the Court will apply Alabama's two-year statute of limitations to each federal claims (Counts One through Eight). As to each pendant state claim (Counts Nine through Sixteen), the Court will apply Alabama's limitations period specific to that claim.

         Furthermore, although federal law, as opposed to state law, determines when a cause of action has accrued as to a § 1983 damage action, Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 1095, 166 L.Ed.2d 973 (2007), the Court has not found any discrepancy between federal law and Alabama law regarding accrual of claims. Accordingly, its accrual analysis will be applied consistently to all claims, whether based on federal law or on state law. Finally, the issue of equitable tolling is determined by Alabama law, even as to Plaintiffs' § 1983 claims. Board of Regents of University of State of N.Y. v. Tomanio, 446 U.S. 478, 100 ...


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