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Harris v. Gunter

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

March 21, 2018

JOHNNIE WILL HARRIS, JR., Plaintiff,
v.
ANDY GUNTER, Defendants.

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE

         On November 29, 2017, the Magistrate Judge filed a Recommendation (Doc. # 29) as to Defendant Food Giant Supermarkets, Inc.'s Renewed Partial Motion to Dismiss (Doc. # 11)[1] and Defendant Andy Gunter's Motion to Dismiss (Doc. # 16). On December 13, 2017, Plaintiff Johnnie Will Harris, Jr. filed objections (Doc. # 30) to the Recommendation. Defendant Gunter responded and also objected to the dismissal of Counts I and VI without prejudice and with leave to amend.[2] (Doc. # 34.) Also on December 13, 2017, Defendant Gunter filed objections (Doc. # 31) to the Recommendation. Upon an independent and de novo review of those portions of the Recommendation to which objection is made, see 28 U.S.C. § 636(b), the Recommendation is due to be adopted as to Defendant Gunter. The stipulated dismissal of Plaintiff's claims against Food Giant moots the remainder of the Recommendation.

         I. FACTS [3]

         Plaintiff alleges that, in December 2014, someone cashed a forged check in Plaintiff's name at Food Giant's Elba, Alabama store. (Doc. # 3 at ¶¶ 3, 10.) Food Giant had video surveillance footage of the incident and took fingerprints of the person who cashed the check. (Doc. # 3 at ¶¶ 7, 10.) The surveillance video and fingerprints conclusively proved that Plaintiff was not the person who committed the forgery. (Doc. # 3 at ¶¶ 7, 10.) Nevertheless, on October 27, 2015, Plaintiff was arrested for the forgery pursuant to a warrant that was based on a complaint by Defendant Gunter, an Elba, Alabama police officer. (Doc. # 3 at ¶¶ 1-2.) The grand jury of Coffee County issued a “no bill” in the case against Plaintiff. (Doc. # 3 at ¶ 13.)

         Plaintiff alleges that, at the time Defendant Gunter swore out the complaint, one or more of the following was true: (1) Defendant Gunter knew that Plaintiff was not the person who cashed the forged check; (2) Defendant Gunter should have known that Plaintiff was not the person who cashed the forged check; (3) Defendant Gunter had the video and/or fingerprint evidence in his possession and therefore knowingly charged the wrong person; and/or (4) Defendant Food Giant concealed or refused to provide Defendant Gunter with the surveillance footage and/or fingerprint evidence and maliciously sought to prosecute Gunter in an effort to collect from him on the bad check. (Doc. # 3 at ¶¶ 5, 7-13.)

         Plaintiff further alleges that Defendant Food Giant “identified [Plaintiff] as the person cashing the check, notwithstanding the video evidence showing the person was not [Plaintiff].” (Doc. # 3 at ¶ 24.)

         II. DISCUSSION

         A. Plaintiff's Objections to Dismissal of Claims against Defendant Food Giant

         Plaintiff objected to the Recommendation that claims against Defendant Food Giant be dismissed. However, on February 2, 2018, Plaintiff's claims against Defendant Food Giant were dismissed by joint stipulation. (Doc. # 36; Doc. # 37.) Therefore, the grounds set forth in the Recommendation for dismissal of those claims are now moot.

         B. Objections Pertaining to Count I of the Second Amended Complaint Against Defendant Gunter

         In Count I, Plaintiff asserts a claim pursuant to 42 U.S.C. § 1983 against Defendant Gunter for malicious prosecution on grounds that Defendant Gunter had Plaintiff arrested without probable cause. Gunter moved for dismissal of Count I. After holding a hearing, the Magistrate Judge entered his Recommendation that Count I of the Amended Complaint be dismissed without prejudice as to Defendant Gunter to allow Plaintiff amend his complaint to more clearly state factual allegations alleging the absence of probable cause. See Grider v. City of Auburn, Ala., 618 F.3d 1240, 1256-57 (11th Cir. 2010) (holding that, “to establish a § 1983 malicious prosecution claim” arising out of an arrest pursuant to a warrant in Alabama, “the plaintiff must prove, ” among other things, that he was arrested without probable cause).

         Plaintiff objects to the Recommendation that Count I be dismissed without prejudice and with an opportunity to amend. He contends that his pleading sufficiently alleges that Defendant Gunter possessed the video surveillance footage and fingerprint evidence, but that Defendant Gunter nevertheless arrested Plaintiff knowing that probable cause was lacking. Count I does include an allegation that, “[b]y his actions, [Defendant] Gunter had [P]laintiff arrested knowing [Plaintiff] was not the person who cashed the check.”[4] (Doc. # 3 ¶ 29.) Taken in the light most favorable to Plaintiff (as is required when considering a motion to dismiss, see Dusek v. JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016)), the factual allegations of the complaint are minimally sufficient to support a reasonable inference that, based on surveillance footage and fingerprint data in his possession, Defendant Gunter knew that someone other than Plaintiff cashed the forged check but still swore out the complaint against Plaintiff.

         Defendant Gunter objects to the Recommendation that dismissal be without prejudice because he contends that the allegations of the complaint are sufficient to establish that he had arguable probable cause to arrest Plaintiff and, therefore, is entitled to qualified immunity on Count I. See Grider, 618 F.3d at 1257 (holding that, “[t]o receive qualified immunity, an officer need not have actual probable cause, but only ‘arguable' probable cause, ” which “exists where reasonable officers in the same circumstances and possessing the same knowledge as the Defendants could have believed that probable cause existed to arrest Plaintiff” (citations and internal quotation marks omitted)). Seizing on the fact that an officer is generally allowed to rely on a victim's complaint to establish probable cause, Myers v. Bowman, 713 F.3d 1319, 1326 (11th Cir. 2013), Defendant Gunter emphasizes that the complaint contains an alleges Food Giant “identified [Plaintiff] as the person cashing the check, notwithstanding the video evidence showing the person was not [Plaintiff].” (Doc. # 3 at ¶ 24.)

         The problem with Defendant Gunter's argument is that it requires the court to view the alleged facts in the light least favorable to Plaintiff, which is not appropriate at the motion-to-dismiss stage. Dusek, 832 F.3d at 1246. Even if Food Giant “identified [P]laintiff” as the culprit to Defendant Gunter, [5] that allegation must be viewed in the context of the Second Amended Complaint, which presents several alternative and mutually exclusive factual allegations and theories of liability. As one theory of liability, Plaintiff alleges a set of facts suggesting that, in a malicious effort to recoup the funds from the forged check, Defendant Food Giant concealed the truth from Defendant Gunter and deliberately accused Plaintiff knowing he was innocent. A number of factual allegations in the Second Amended Complaint align with that theory, such as the allegation that Defendant Food Giant withheld the surveillance footage and fingerprints from Defendant Gunter ...


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