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Patel v. City of Madison

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

April 19, 2018

SURESHBHAI PATEL, Plaintiff,
v.
CITY OF MADISON, ALABAMA, and ERIC SLOAN PARKER, Defendants.

          MEMORANDUM OPINION AND ORDER

          VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE

         I. Introduction

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

         U.S. Const. amend. IV.

         This is a case about the Fourth Amendment to the United States Constitution. It arises from a takedown where Defendant Officer Parker, an officer in Defendant City of Madison's (the “City”) police department (the “MPD”), used a leg sweep maneuver to put Plaintiff Sureshbhai Patel, an elderly Indian male, on the ground. As a result of this takedown, Patel suffered injuries, including permanent partial paralyzation.

         Before the Court are several motions for summary judgment by the City (Doc. 99), Patel (Doc. 103), and Officer Parker (Doc. 104). Part of the City of Madison's motion was a motion for judgment on the pleadings. (Doc. 99). All of the motions are ripe for this Court's review.

         For the reasons herein stated, the motions are GRANTED in part and otherwise DENIED, as set out herein.

         II. Factual Background[1], [2]

         A. Background Before the Takedown

         For the three-month period from November 1, 2014, until February 6, 2015, there were 100 burglaries in the City, two-thirds of which occurred between approximately 7:30 a.m. and 6:00 p.m. (Doc. 100 at ¶5); (Doc. 115 at 20 ¶5). Officer Parker initially worked as a patrol officer for the MPD, serving for approximately two years in that position. He began working as a field training officer about two months before the events of February 6, 2015. (Doc. 100 at ¶8); (Doc. 115 at 20, ¶8). Approximately four weeks prior to February 6, 2015, Officer Parker was assigned to train new MPD Officer Andrew Slaughter. Officer Slaughter had two days left in his training with Officer Parker as of February 6, 2015. (Doc. 100 at ¶9); (Doc. 115 at 20, ¶9). Prior to February 6, 2015, Officer Parker observed that Officer Slaughter had difficulty in face-to-face interactions with subjects or citizens and was sometimes nervous in these encounters. (Doc. 100 at ¶ 10); (Doc. 115 at 20, ¶10). On the morning of February 6, 2015, Officer Parker and Officer Slaughter began their patrol shifts at 6 a.m. At the beginning of their shift, the two officers first drove through neighborhoods, ran radar in school zones, and conducted several traffic stops. They then traveled to an abandoned house for a training exercise. (Doc. 100 at ¶11); (Doc. 115 at 20, ¶11).

         B. February 6, 2015 - The Takedown

         On February 6, 2015, Jacob Maples called the MPD in Madison, Alabama. He provided his name, address, and telephone number to the dispatcher with whom he spoke. (Doc. 107 at ¶1); (Doc. 115 at 13, ¶2); (see also Doc. 100 at ¶12). Maples reported seeing an individual in his neighborhood, Hardiman Place Lane in Madison, who was standing in driveways, going into people's yards, and looking in garages and windows. Maples had lived in the neighborhood for four years, and had never seen the person before. He felt nervous leaving his wife and child at home while the man was about the neighborhood. (Doc. 107 at ¶2); (Doc. 115 at 13, ¶2); (see also Doc. 100 at ¶12). Maples gave a description of the individual to the dispatcher. He described the individual as a skinny black male, wearing a white or light-colored sweater, jeans, and a toboggan hat. (Doc. 107 at ¶3); (Doc. 115 at 13, ¶3); (see also Doc. 100 at ¶12).

         Officer Eric Parker was on duty for MPD that morning. He was working as the field training officer (“FTO”) for Officer Andrew Slaughter. (Doc. 107 at ¶4); (Doc. 115 at 13, ¶4). Officer Slaughter was driving Officer Parker's patrol car. Over the MPD radio, they were informed of a “check subject” call. (Doc. 107 at ¶5); (Doc. 115 at 13, ¶5). The subject was described as a skinny black male, wearing a white or light-colored sweater, jeans, and a toboggan hat. The dispatcher also relayed the suspect's activities of walking in yards, standing around driveways, and looking in garages. Maples's name was provided as well, making him a known caller. (Doc. 107 at ¶6); (Doc. 115 at 13, ¶6). Officer Spence also responded to the dispatch call. (Doc. 100 at ¶13); (Doc. 115 at 20, ¶13). Based on the information received from the dispatcher, Officer Parker believed the suspect's activities were in sequence with burglary activities, particularly someone checking out the area and casing the houses, about which MPD had received several calls. (Doc. 107 at ¶7).[3]

         The dispatcher sent updates to the mobile data terminal located in the patrol unit used by Officers Parker and Slaughter as they were en route. Specifically, the information sent to the mobile data terminal stated that the subject in question was a skinny black male wearing a toboggan, blue jeans, and a white or light colored sweater; that the subject was last seen heading northbound on Hardiman Place Lane; that the subject was walking into yards, standing in driveways, and looking around garages; and that Mr. Maples advised that he had lived there for four years, had never seen the subject, and was nervous about leaving his wife and child at home with the way the subject was acting. The information sent to the mobile data terminal also provided Mr. Maples's name, address, and phone number. (Doc. 100 at ¶14); (Doc. 115 at 20, ¶14). Officer Parker reviewed these details and read them aloud as Officer Slaughter drove toward the subject's reported location. (Doc. 100 at ¶15); (Doc. 115 at 20, ¶15).[4] Officer Parker testified that as he reviewed the information sent by dispatch, he concluded that the caller's decision to identify himself contributed to reasonable suspicion that a crime may have been in progress. (Doc. 100 at ¶17); (Doc. 115 at 21, ¶17). Officer Parker testified that under the MPD's policies and pursuant to his training, when a known caller gives articulable information that indicates a crime may be in progress or have been committed, reasonable suspicion exists to detain the subject and conduct an investigatory stop to look into the situation further. (Doc. 100 at ¶18); (Doc. 115 at 21, ¶18). Officer Parker has indicated that he believed this neighborhood was a high crime area. (Parker Depo. at 316:2 to 316:14). From his experience and training as a patrol officer, Officer Parker also understood that burglars will sometimes case houses early in the morning, when most people have left their houses for work. (Doc. 100 at ¶22); (Doc. 115 at 21, ¶22). Officer Spence testified that he independently concluded that the subject in question might be involved in a burglary. (Doc. 100 at ¶25); (Doc. 115 at 22, ¶25).

         Based on the available information, Officer Parker testified that he and Officer Slaughter agreed that Officer Slaughter would stop the subject and find out his name, address, and reason for being in the area. If the subject provided that information, the plan of action was to write a “miscellaneous” report describing the encounter and then return to patrol duties. (Doc. 100 at ¶27); (Doc. 115 at 22, ¶27).

         The officers arrived at Hardiman Place Lane, where they saw a male individual wearing a white sweater, jeans, and a toboggan hat, matching the given description. They also recognized him as thin and dark-skinned. Officer Slaughter parked the patrol car a few feet behind the individual, who they later learned was plaintiff Sureshbhai Patel, as he was walking down the sidewalk. (Doc. 107 at ¶8); (Doc. 115 at 13, ¶8). Officer Slaughter switched on the patrol vehicle's dashboard COBAN video system on his belt, which causes the system to begin recording audio from a microphone on his person. (Doc. 100 at ¶32); (Doc. 115 at 22 ¶32).

         The officers got out of the patrol vehicle to speak with Patel. At first, Patel waved at them, but continued walking. He had one hand in his pocket. (Doc. 107 at ¶9); (Doc. 115 at 13, ¶9); (see also Doc. 100 at ¶33, 34). Officer Slaughter called out to him, asking to talk to Patel and for him to “come here.” Patel walked towards where the officers were standing. (Doc. 107 at ¶10); (Doc. 115 at 13, ¶10). Patel recognized the officers were, in fact, police officers by the way they were dressed. (Doc. 107 at ¶11); (Doc. 115 at 13, ¶11); (Doc. 100 at ¶35). Officer Slaughter asked plaintiff what was going on. Patel responded by saying “India” and “no English.” Patel then walked away from the officers, taking two steps. (Doc. 107 at ¶12); (Doc. 115 at 13, ¶12). Officer Slaughter asked Patel to “come here” again. Patel again responded with “India” and “no English.” (Doc. 107 at ¶13); (Doc. 115 at 13, ¶13).

         Officer Slaughter attempted to begin the investigation, asking Patel where he was headed, for his address, and generally where he lived. Patel told the officers, “my house, my house, 148, walking.” He also pointed off in the opposite direction of the officers. Then, Patel walked away a second time, taking seven steps this time. (Doc. 107 at ¶14); (Doc. 115 at 14, ¶14); (see also Doc. 100 at ¶¶ 43-45).

         Officer Slaughter ordered Patel to stop walking. This time, the officers had to walk over to reach Patel, as he did not walk back to them as before. (Doc. 107 at ¶15); (Doc. 115 at 14, ¶15).Officer Slaughter asked Patel for identification. Patel responded “no English”[5] and “India.” (Doc. 107 at ¶16)[6]; (Doc. 115 at 14, ¶16); (see also Doc. 100 at ¶48). Officer Slaughter asked Patel again if he lived in the neighborhood. In response, Patel raised his right arm and pointed off in the distance. (Doc. 107 at ¶17); (Doc. 115 at 14, ¶17). Patel's hands can be seen moving at his midsection and by his sides on the video. (Doc. 107 at ¶18); (Doc. 115 at 14, ¶18). Patel then walked away from the officers a third time, taking nine steps away this time. He did so despite knowing that the officers had told him to stop. (Doc. 107 at ¶19); (Doc. 115 at 14, ¶19). Each time Patel walked away from the officers, his whole body turned away from them. (Doc. 107 at ¶20); (Doc. 115 at 14, ¶20).

         Officer Parker testified that he then took over as the lead investigating officer for the encounter. (Doc. 100 at ¶63); (Doc. 115 at 26, ¶63). The officers then both pursued Patel, with Officer Parker saying, “Sir. Sir. Come here.” (Doc. 100 at ¶64); (Doc. 115 at 26, ¶64). After Officer Parker told him to “come here, ” Patel stopped and turned towards the officers. (Doc. 100 at ¶65); (Doc. 115 at 26, ¶65).

         The parties vigorously dispute whether Patel ever put his hands in his pockets. (See Doc. 100 at ¶66); (Doc. 115 at 26 ¶66).[7] There are two police dashcam videos in evidence. However, the Parker dashcam video is too poor-quality to ascertain with a high level of certainty whether Parker's hands were in his pockets. (See Parker Dashcam Video at 1:00-2:16). Further, the angle of the video makes it such that the viewer cannot see totally what was going on. (See id.). The Spence dashcam video is higher quality than the Parker dashcam video. (See generally Spence Dashcam Video). However, it only shows the later part of the encounter. (See Id. at 00:00-17:52). Further, the positioning of Officer Parker obstructs a view of Patel's hands. (See Id. at 00:00-00:16). In short, neither video provides an indication that Patel's hands were in his pockets, but the videos do not tell the entire story because of the viewpoint limitations.

         After the officers stopped Patel from walking away for the third time, Patel stopped walking, facing away from the road and toward the houses along the street. (Doc. 100 at ¶67); (Doc. 115 at 26, ¶67). Officer Slaughter asked whether Patel had been looking at houses, but got no response. (Doc. 100 at ¶68); (Doc. 115 at 26, ¶68).

         Since Officer Slaughter, a police officer trainee, permitted Patel to continue to walk away from them, Officer Parker took over the investigatory stop. (Doc. 107 at ¶21); (See Doc. 115 at ¶21). The parties dispute the relative size difference between Patel and Officer Parker. (See Doc. 107 at ¶22); (Doc. 115 at ¶22). There is evidence from hospital records that Patel weighed around 115 pounds. (Doc. 116-2 at 1). Parker described himself as weighing around 150 pounds. (Parker Depo. at 88:23 to 89:1-4).

         The parties dispute whether Patel was acting suspiciously. (Doc. 107 at ¶23); (Doc. 115 at 15 ¶23). Officer Parker was concerned that Patel was armed. (See Doc. 107 at ¶23).[8] Officer Parker decided to conduct a pat-down of Patel to determine whether he was armed. (Doc. 100 at ¶89); (Doc. 115 at 30 ¶89). Officer Parker walked around Patel, stopping when he was behind Patel's left shoulder. (Doc. 100 at ¶90); (Doc. 115 at 30 ¶90). Officer Parker took hold of Patel and placed Patel's hands in a reverse prayer position, with Patel's knuckles touching each other and his palms facing out. Officer Parker held onto Patel's index fingers with his right hand. (Doc. 107 at ¶24); (Doc. 115 at 15, ¶24); (see also Doc. 100 at ¶91-92). Officer Slaughter then began patting down Patel's right leg. (Doc. 100 at ¶93); (Doc. 115 at 31 ¶93).

         The parties vigorously dispute the actual events directly leading up to the takedown. Again, the Court notes that while there is a dashcam video, that video is not the end-all be-all of this case. There is much that the video does not show the viewer because of the video quality and the vantage point.

         Officer Parker claims that Patel jerked his left hand free while he was beginning to perform the patdown. (Doc. 107 at ¶ 26). Patel disputes this fact. (Doc. 115 at 17 ¶ 26); (see also Patel Depo. at 60-61); (but cf. Patel Depo. at 106-07) (not remembering if there was a “tiny bit” of movement). The parties agree that Officer Parker told Patel to stop jerking away. (Doc. 107 at ¶26); (Doc. 115 at 17 ¶28). Officer Parker also warned Patel that he would put him on the ground if he kept jerking. (Doc. 100 at ¶98); (Doc. 115 at 32 ¶98). However, the parties disagree whether Patel was actually “jerking” away. (Doc. 107 at ¶26-28); (Doc. 115 at 16¶26). The parties dispute whether Patel's hand ever came free during the patdown. (Doc. 100 at ¶99); (Doc. 115 at 32 ¶99). The Court has viewed the dash cam videos and notes that they provide scant evidence that Patel moved during the patdown. (See Parker Dashcam Video at 00:00-02:19). For example, when Officer Parker tells Patel to stop jerking away the first time, there is virtually no movement that can be seen from his dash cam video. (See Id. at 01:59). That does not mean there was no movement, because the video does not tell all. There is some visible evidence of movement right before the takedown, as Patel turned his head and moved his left foot. (See Id. at 02:00-02:20); (see also Spence Dashcam Video at 00:00-00:17).

         At some point, Officer Parker took Patel to the ground. (Doc. 100 at ¶123); (Doc. 115 at 37 ¶ 123). Despite Officer Parker's never having been taught how to perform a leg sweep, it appears that is what he attempted to do. (Doc. 100 at ¶ 117) (citing Parker Depo. at 25, 37-38);[9] (Doc. 115 at 36 ¶ 117). Patel landed on the grass, [10] and Officer Parker landed on top of him. (Doc. 100 at ¶ 126); (Doc. 115 at 39 ¶126).

         Officer Parker immediately radioed for a supervisor to come to the scene. The officers noticed Patel's nose was bleeding, and Officer Parker radioed for paramedics as well. (Doc. 107 at ¶ 33); (Doc. 115 at 18, ¶33). The video evidence shows one of the officers putting a shoe back on Patel's foot after the takedown. (Spence Dashcam Video at 01:00-01:22). Over the next several minutes, Officer Parker and the other officers on the scene attempted to help Patel stand up. (Doc. 100 at ¶ 34); (Doc. 115 at 41 ¶134). Officer Parker contends that Patel continued to resist being handcuffed, even after the takedown. (Doc. 107 at ¶32). The video does not support that claim. (Spence Dashcam Video at 00:20-00:47); (see also Doc. 115 at 18 ¶32).

         Later, Officer Parker removed Patel's handcuffs. (Doc. 115 at ¶135); (Doc. 115 at 41 ¶135). Officer Parker spoke to both Officer Spence and Corporal Clint Harrell, the supervisor who responded. He confirmed with both that Patel continued to jerk away from him during the patdown.[11] (Doc. 107 at ¶34); (Doc. 115 at 18, ¶34). Patel was transported to Madison Hospital by ambulance, where he was initially treated. (Doc. 107 at ¶35); (Doc. 115 at 18, ¶35); (Doc. 100 at ¶136).

         Unknown to Officer Parker at the time, Patel suffered from pre-existing severe multilevel degenerative conditions of the spine, including cervical spinal canal stenosis attributed to disc bulging, hypertrophy of the ligamentum flavum, and, acutely, to spinal cord edema at one section of his spine. This level of stenosis, though not outwardly apparent, was unusually high compared to what one would expect to find in an average man of his age. This preexisting condition predisposed Patel to spinal injury. (Doc. 100 at ¶ 129); (Doc. 115 at 40 ¶ 129).[12]

         III. Standards

         A. Summary Judgment

         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.[13] 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.

         Although there are cross-motions for summary judgment, each side must still establish the lack of genuine issues of material fact and that it is entitled to judgment as a matter of law. See Chambers & Co. v. Equitable Life Assur. Soc. of the U.S., 224 F.2d 338, 345 (5th Cir. 1955) (“Both parties filed and argued motions for summary judgment, but this does not warrant the granting of either motion if the record reflects a genuine issue of fact.”).[14] “When there are cross-motions for summary judgment, the court must consider each motion separately, drawing all inferences in favor of each non-moving party in turn.” D & H Therapy Associates, LLC v. Boston Mut. Life Ins. Co., 640 F.3d 27, 34 (1st Cir. 2011); see also, Byce v. Pruco Life Ins. Co., 1:09-CV-1912-RWS, 2011 WL 233390 (N.D.Ga. Jan. 21, 2011) (“[T]he filing of cross-motions for summary judgment does not give rise to any presumption that no genuine issues of material fact exist. Rather, ‘[c]ross-motions must be considered separately, as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law'”) (quoting Shaw Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d 533, 538-39 (5th Cir.2004)).

         The court will consider each motion independently, and in accordance with the Rule 56 standard. See U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962) (“On summary judgment the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.”). “The fact that both parties simultaneously are arguing that there is no genuine issue of fact, however, does not establish that a trial is unnecessary thereby empowering the court to enter judgment as it sees fit.” Wright, Miller & Kane, Fed. Practice & Proc. § 2720, at 327-28 (3d ed. 1998).

         B. Judgment on the Pleadings

         Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fter the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). As the Eleventh Circuit has explained the Rule 12(c) standard:

Judgment on the pleadings is appropriate when there are no material facts in dispute, and judgment may be rendered by considering the substance of the pleadings and any judicially noticed facts. See Bankers Ins. Co. v. Florida Residential Property and Cas. Joint Underwriting Ass'n, 137 F.3d 1293, 1295 (11th Cir. 1998) (citing Hebert Abstract Co. v. Touchstone Properties, Ltd., 914 F.2d 74, 76 (5th Cir. 1990)); see also Rule 12(c), Fed.R.Civ.P. When we review a judgment on the pleadings, therefore, we accept the facts in the complaint as true and we view them in the light most favorable to the nonmoving party. See Ortega, 85 F.3d at 1524 (citing Swerdloff v. Miami Nat'l Bank, 584 F.2d 54, 57 (5th Cir. 1978)). The complaint may not be dismissed “‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'” Slagle, 102 F.3d at 497 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957) & citing Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811, 113 S.Ct. 2891, 2916-17, 125 L.Ed.2d 612 (1993)).

Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998).

         Further, “[w]hether the court examine[s] [a pleading] under Rule 12(b)(6) or Rule 12(c), the question [remains] the same: whether the [complaint] stated a claim for relief.” Sampson v. Washington Mut. Bank, 453 Fed.Appx. 863, 865 n.2 (11th Cir. 2011) (first alteration supplied; all other alterations in original) (quoting Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 n.8 (11th Cir. 2002)); Sampson, 453 Fed.Appx. at 865 n.2 (applying Strategic Income and concluding that court's error in granting a dismissal under Rule 12(c) instead of Rule 12(b)(6) was harmless).

         IV. Analysis

         A. Officer Parker's Motion for Summary Judgment Is Due To Be Granted in Part and Otherwise Denied.

         i. Qualified Immunity

         “The defense of qualified immunity completely protects government officials performing discretionary functions from suit in their individual capacities unless their conduct violates ‘clearly established statutory or constitutional rights of which a reasonable person would have known.'” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003) (internal quotation marks omitted) (quoting Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003)). “To receive qualified immunity, the government official must first prove that he was acting within his discretionary authority.” Id. at 1234 (citing Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)).

         This is a two-part test. Under the first step, “the defendant must [prove that he or she was] performing a function that, but for the alleged constitutional infirmity, would have fallen with[in] his legitimate job description.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). Next, the defendant must prove that he or she was “executing that job-related function-that is, pursuing his job-related goals-in an authorized manner.” Id. at 1267. “Once a defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity.” Cottone, 326 F.3d at 1358.

         Until 2009, the Supreme Court had required a two-part inquiry to determine the applicability of qualified immunity, as established by Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001), modified in application by Pearson v. Callahan, 555 U.S. 223, 227, 129 S.Ct. 808, 813, 172 L.Ed.2d 565 (2009) (holding that “Saucier procedure should not be regarded as an inflexible requirement”). Under the Saucier test, “[t]he threshold inquiry a court must undertake in a qualified immunity analysis is whether [the] plaintiff's allegations, if true, establish a constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 2513, 153 L.Ed.2d 666 (2002).

         If, under the plaintiff's allegations, the defendants would have violated a constitutional right, “the next, sequential step is to ask whether the right was clearly established.” Cottone, 326 F.3d at 1358 (quoting Saucier, 533 U.S. at 201, 121 S.Ct. at 2156). The “clearly established” requirement is designed to assure that officers have fair notice of the conduct which is proscribed. Hope, 536 U.S. at 739, 122 S.Ct. at 2515. This second inquiry ensures “that before they are subjected to suit, officers are on notice their conduct is unlawful.” Saucier, 533 U.S. at 206, 121 S.Ct. at 2158.

         The “unlawfulness must be apparent” under preexisting law.[15] Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citing Malley v. Briggs, 475 U.S. 335, 344-45, 106 S.Ct. 1092, 1097-98, 89 L.Ed.2d 271 (1986)). Therefore, a temporal requirement exists related to this inquiry. More particularly, a plaintiff must show that a reasonable public officer would not have believed her actions to be lawful in light of law that was clearly established at the time of the purported violation. See Anderson, 483 U.S. at 639, 107 S.Ct. at 3038 (“[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness' of the action[, ] assessed in light of the legal rules that were ‘clearly established' at the time it was taken[.]”) (emphasis added) (citation omitted); Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 599, 160 L.Ed. 2D 583 (2004) (“If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation.”) (emphasis added); Brosseau, 543 U.S. at 198, 125 S.Ct. at 599 (“Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.”) (emphasis added); see also Johnson v. Clifton, 74 F.3d 1087, 1093 (11th Cir. 1996) (“We know of no [preexisting] case which might have clearly told Clifton that he could not take the disciplinary action indicated by an investigation which was initiated before he even knew about the allegedly protected speech, and in circumstances where the public concern implication was doubtful.”).

         However, the Saucier framework was made non-mandatory by the Supreme Court in Pearson, 555 U.S. at 236, 129 S.Ct. at 818, in which the Court concluded that, “while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory.” Thus, “judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id.

         Despite the Supreme Court's modification of Saucier's analytical process, the substantive analysis remains unchanged; an officer is entitled to qualified immunity protection as long as he “could have believed” his conduct was lawful. Hunter v. Bryan, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991). Therefore, to deny immunity, a plaintiff must affirmatively demonstrate that “no reasonably competent officer would have” acted as the public official did. Malley, 475 U.S. at 341, 106 S.Ct. at 1096.

         1.Seizure [16]

         First, Officer Parker argues that there was reasonable suspicion to stop Patel and that the Court should determine the question as a matter of law. (See Doc. 107 at 15).

         “It is only when an officer, ‘by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure' has occurred.'” Jackson v. Sauls, 206 F.3d 1156, 1166 (11th Cir. 2006) (citing other sources). The Eleventh Circuit has further explained the principles behind a Terry stop:

To have reasonable suspicion, an officer conducting a stop must “have a reasonable, articulable suspicion based on objective facts that the person has engaged in, or is about to engage in, criminal activity.” United States v. Powell, 222 F.3d 913, 917 (11th Cir.2000) “The ‘reasonable suspicion' must be more than ‘an inchoate and unparticularized suspicion or hunch.' ” Id. (quoting Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)). “While ‘reasonable suspicion' is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop.” Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 675-76, 145 L.Ed.2d 570 (2000). Also, “[a] reasonable suspicion of criminal activity may be formed by observing exclusively legal activity, ” United States v. Gordon, 231 F.3d 750, 754 (11th Cir.2000), even if such activity is “seemingly innocuous to the ordinary citizen.” United States v. Smith, 201 F.3d 1317, 1323 (11th Cir.2000).
We examine “the totality of the circumstances” to determine whether the police had “a particularized and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002) (citation and internal quotation marks omitted). We also recognize that the police may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” Id. at 750-51 (citation and internal quotation marks omitted). To have reasonable suspicion based on an anonymous tip, the tip must “be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” J.L., 120 S.Ct. at 1379. “The issue is whether the tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.” Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 2414, 110 L.Ed.2d 301 (1990).

U.S. v. Lindsey, 482 F.3d 1285, 1290-91 (11th Cir. 2007).

         This series of events started with a phone call from a concerned citizen, Jacob Maples. He called the Madison emergency services, said that Patel was wandering around people's driveways, said that he was worried about leaving his family at home, noted that he had not seen Patel until recently, described Patel's physical appearance, gave his name, gave his phone number, and said generally where he lived. (See Jacob Maples 911 Call at 00:00-02:21). It is significant that Maples identified himself. See U.S. v. Martinelli, 454 F.3d 1300, 1307 (11th Cir. 2006) (citing Easton v. City of Boulder, 776 F.2d 1441, 1449 (10th Cir.1985)) (“The courts have traditionally viewed information drawn from an ordinary witness or crime victim with considerably less skepticism than information derived from anonymous sources.”). The police were dispatched to the scene and found a man substantially matching the known informant's description, and in the general area that the known informant said he would be in. Even though Officer Parker did not witness immediately apparent suspicious activity (i.e. looking at people's garages), the known informant did. Adams v. Williams, 407 U.S. 143, 148 (1972) (“[W]e reject respondent's argument that reasonable cause for a stop and frisk can only be based on the officer's personal observation, rather than on information supplied by another person. Informants' tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability.”). Further, Patel has not adequately disputed the evidence that the area in which Patel was in was known for burglaries. This too would play into what a reasonable officer would consider in determining reasonable suspicion. Here the Court finds that this is enough to provide at least arguable reasonable suspicion[17] to make the initial (Terry) stop. For that reason, Officer Parker is entitled to qualified immunity on this claim.[18]

         Further, “[t]he principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop.” Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177, 187 (2004) (noting that “[a] state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures”). “The reasonableness of a seizure under the Fourth Amendment is determined ‘by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate government interests.'” See Id. at 187-188 (citing Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). Under Alabama law, police officers can demand answers to certain questions. See Ala. Code § 15-5-30.[19]

         Patel argues that any reasonable suspicion evaporated when the police got to the scene. (See Doc. 115 at 58). However, Officer Parker arguably had reasonable suspicion to start the Terry stop, and the reasonable suspicion did not go away because the officers did not obtain basic answers under Alabama law and because Patel attempted to walk away several times.[20] Accordingly, the Court GRANTS Officer Parker QUALIFIED IMMUNITY on the Terry seizure claim.

         2. Search

         Second, Officer Parker argues that there was “reasonable, articulable suspicion that [Patel] was armed and dangerous.” (See Doc. 107 at 15). For that reason, Officer Parker believes that Patel has no “unlawful search” claim. (See Id. at 23).

         As an initial matter, the Court has to determine what Patel pled in his unlawful search claim. The facts of the Complaint lead the Court to infer that the focus of the unlawful search claim was the Terry frisk. (Doc. 58 at ¶ 17, 18, 33). The Complaint did not allege that Officer Parker took actions (i.e. going inside Patel's pockets) that would take this from a Terry frisk that requires a fear that the suspect is armed and dangerous, to a search requiring probable cause. (See id.). Further, Officer Parker moved for summary judgment on the search claim (Doc. 107 at 15-23). In response, Patel talks only about a Terry frisk aspect. (See Doc. 115 at 55-60). Patel references Officer Parker going inside his pockets in the section alleging false arrest. (See Doc. 115 at 72). For that reason, the Court reads Patel to be arguing that when Officer Parker emptied Patel's pockets, this is a factor to be considered regarding the illegal seizure. The Court further determines that any claim that Officer Parker illegally searched Patel via emptying his pockets was abandoned as insufficiently argued. “The parties bear the burden of formulating arguments before the ...


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