United States District Court, N.D. Alabama, Southern Division
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
case arises from a dispute over a barber shop in the City of
Center Point. Before the Court are several motions.
Defendants City of Center Point (the “City”),
Thomas Henderson, and John Watkins filed a motion for summary
judgment. (Doc. 61). Additionally, Defendants Florence
Johnson and Trina Paulding filed a motion for summary
judgment. (Doc. 62). Plaintiff Geta Barr filed two separate
motions to strike the affirmative defense of justification
outlined in the motions for summary judgment. (Docs. 65,
Finally, the City, Henderson, and Watkins filed a motion to
strike evidence attached to Barr's response opposing
summary judgment. (Doc. 70). All five motions are under
submission and ripe for review.
reasons stated in today's opinion, the motions are
granted in part and denied in part. Further, the Court
determines that the proper course of action is to remand the
remainder of the case to the Circuit Court of Jefferson
Facts Pertinent to the City Motion
Barr moved from her native Jamaica to Miami, Florida. In 2008
she moved from Miami to Birmingham, Alabama. Barr describes
her occupation(s) as: cosmetologist, barber, and income tax
preparer. Upon first arriving in Birmingham, Barr rented a
barber's chair at a studio in the Birmingham neighborhood
of Woodlawn. After briefly opening her own barber shop
outside of Center Point, she then opened a barber shop and
beauty salon at 1855 Center Point Parkway on August 22, 2008.
A very short time after that, she moved the shop to 1849
Center Point Parkway, which was located in the same shopping
2008 to 2014, 1849 Center Point Parkway was Barr's only
location. From that location she operated both Barr Sisters
Barber and Style, and Maxi Tax Resources, an income tax
preparation service which was only open during tax season,
January to April. In 2014, she opened “Barr
Sister's Barber and Style II” at 1687 Center Point
in 2014, 1687 became the location of the barbershop, while
1849 was the location of the cosmetology salon. Barr
testified that, due to this separation, she did not need a
license from the Jefferson County Barber Commission
(“JCBC”) to operate 1849, and that she did not
need a license from the Alabama Board of Cosmetology to
operate 1687. Barr testified that the JCBC came to her shop
“all the time … [looking for] sanitation and
stuff like that ….” On July 25, 2014, Kay
Wallace, an inspector and office manager for the JCBC,
inspected Barr's 1687 location. On August 19, 2014, Trina
Paulding,  another inspector for the JCBC, came to
Barr's shop at the request of Wallace. Barr was in
Florida on August 19th. Barr testified that she was the only
person who worked at Barr Sisters with a journeyman barber
license, and thus was the only one who could oversee
Paulding arrived at 1687 on August 19th, Barr was not there,
but Paulding found that the shop was open for business, and
that there was one student barber in the shop (along with his
friends) without a journeyman barber present to supervise
him. (See Barr Depo. at 63-65). A man named Chico,
who worked at the barber shop, was also there for a short
time, but he was not able to oversee students because only
Barr could do that. (See id.). At that time,
Paulding did not get the names of any of these individuals.
(See Paulding Depo. at 52). Barr testified that
“Smith was not supposed to be at work that day
…. They weren't supposed to be there, ” and
that the barbershop was supposed to be closed. However,
despite Barr's directives, Chico “opened the door
[for Smith] and left” Smith and his friends to operate
the shop. Paulding testified that it is hazardous for people
without licensesto practice as a barber. (See
Paulding Depo. at 55:23 to 56:3).
wrote Barr a violation of $50 for having a student barber
present without a journeyman barber to supervise him. On
August 21, 2014, Wallace came back to 1687 and found an
unlicensed individual named Lateria Johnson braiding hair.
Again, Barr was not present at 1687 at the time of
Wallace's inspection. Barr testified that she had sent
Johnson from 1849 to 1687 in order to braid a client's
August 25, 2014, Paulding came back to 1687 and gave Barr a
written notice that she needed to appear before the JCBC the
next day, August 26, 2014, between 9:30 and 10 AM. Barr
appeared but requested the hearing be postponed for her
attorney to be present. (See Barr Depo. at 78-79).
The statute specifically states as follows:
The commission, before denying an application for a license,
or before suspending or revoking any
license, shall set the matter down for a hearing,
and at least 20 days prior to the date set
for the hearing, notify the applicant or licensee in writing,
which notice shall contain an exact statement of the charges
made and the date and the place of the hearing. The applicant
or licensee at all hearings shall have the
opportunity to be heard in person and by
Ala. Code § 45-37-40.04(d) (emphasis added).
testified that, at the hearing, JCBC Commissioner Florence
Johnson said: “[we're] going to send the sheriff to
shut you down.” When Barr left the JCBC on August 26th,
she went back to 1687. She testified that at some point later
that day Trina Paulding, Jefferson County Sheriff's
deputies, Center Point building inspectors John Woods, John
Watkins, and Center Point Inspections Supervisor Wayne
Plunkett arrived at her 1687 location. Barr testified
that the deputies came in and ordered everyone to get out.
She testified that everyone left, a notice was placed on the
door, and the doors were then chained and locked. Barr
testified that, although she saw Wayne Plunkett and John
Watkins at the door with the chain and lock, she could not
say “who put the lock together.” After Barr went
across the street to the 1849 building, the police entered
that building and told her to leave and that if she were
caught on the premises she would be arrested. (Barr Dep. p.
104:16-105:10). Barr was present when the doors to 1849 were
chained and locked by the City, but she did not see precisely
who locked the doors. (Barr Dep. p. 106:7-16).
August 26th, Barr retained attorney Henry Penick, an attorney
she had worked with before, to represent her. Barr and Penick
went to the JCBC the next day to request an emergency
meeting, but Wallace said that the earliest date on which the
hearing could occur was September 4, 2014.
September 4, 2014, the JCBC agreed to re-open Barr's
businesses if she paid a $250.00 fine. (Barr Depo. at
108:16-109:17). City Inspector John Watkins was present
when this agreement was stated. (See Id. at
113:11-23). At some point on September 4th, the locks on her
doors were removed, but Barr was not present for their
removal. A Center Point City Council meeting regarding
Barr's businesses and her business licenses was initially
scheduled for September 11th, but was rescheduled to October
9th. Barr was notified of the changed hearing date by Center
Point City Attorney Frank Russo. Barr appeared at the hearing
on October 9th with her attorney Penick. Penick was given an
opportunity to speak at the City Council meeting.
was a business license meeting before the City Council on
October 9. (See 10-9-14 Minutes). At that meeting,
the sign issues, compliance with licenses, and the production
of the records of revenue were discussed regarding
Barr's businesses. (See Id. at 5). At the
meeting it was discussed that “[i]f not in compliance
at that time, the business licenses will be revoked and the
businesses closed.” (See Id. at 6). By
unanimous vote, the City Council gave Barr until
“October 17, 2014, at 5:00P.M. to comply with all city
ordinances.” (See id.) (emphasis and
testified that she never produced all requested revenue
records. On October 17, members of the Center
Point Inspections Department put a cease and desist notice on
the door of both her 1849 and 1687 locations. (Barr Depo. at
129-131). Additionally, the 1849 location was
chain locked. (Hinkle Depo. at 26:15-20). The parties agree
that, at that point, the City Council had not passed any new
resolution finding Barr to be noncompliant or explicitly
shutting down her businesses. (See Doc. 61 at 7
¶35); (Doc. 63 at 7 ¶35); (Hinkle Depo. at 48-49).
On October 17, Barr had no customers in her shop at 1849.
(See Barr Depo. at 127). Barr testified that she and
her son were “trying to make sure everything was in
compliance.” (See Barr Depo. at 127).
October 23, 2014, the Center Point City Council met again.
(10-23-14 Minutes). The City Council unanimously passed the
Barr Sisters Barber & Style and Barr Sisters Barber &
Style II granted until Friday, October 31, 2014[, ] at 1P.M.
to present all required information. If not in compliance at
that time, the resolution to revoke the business licenses
will go into effect[.]
(Id. at 3) (emphasis and capitalization omitted).
this vote, Barr was allowed to reopen her businesses. During
the week of October 17th to October 24th, when the store was
allegedly closed, Barr received a credit card payment. She
testified alternatively that the deposit came from 1) someone
paying her son Vincent, 2) someone who gave her money to buy
food out of charity, or 3) somebody who owed her money from
working on their hair previously. While Barr does not sell
good directly to customers in her store, she does engage in
bulk purchasing and selling. (Barr Depo. at 226-228). She
sold thousands of dollars of these goods from the 1849
location. (See id.).
Barr and Penick were present at the October 9th City Council
meeting in which revenue records were discussed, and Penick
was also told directly that Barr needed to produce income tax
records. Barr testified that she did not produce all of the
necessary income tax records in order to come into compliance
by October 31st. She stated that she “couldn't come
up with the last one.” Barr asked Mayor Henderson on
October 31st if he could give “me some extension so I
could try to come up with the [tax return] that I'm
missing, he said that order is already out ….”
October 31st, Wayne Plunkett, John Watkins, and the Jefferson
County Sherriff's Department came to Ms. Barr's
barber shop. (See Barr Depo. at 147). At that time,
both businesses were chained and locked. (See id.).
The 1849 location was not open for business on October 31st.
Barr testified that the doors were locked, but did not see
who locked the doors. Although Barr admits that the doors
were unlocked at some point prior to November 8th, she stated
that she did not actually know when they were unlocked.
Property Management chained and locked the doors to 1687 on
either November 9 or November 21, 2014. (Better Business
Bureau Complaint at 2) (“I was illegally evicted by
In-Rel Properties . . . November 9, 2014[.]”); (Barr
Depo. at 154); but see (id.) (discussing
the events of November 21, 2014).
applied for, and was issued, two business licenses from the
City of Center Point on October 17, 2014, for Barr Sisters
Barber & Style I and II to operate at both the 1849 and
1687 locations. (Doc. 63-2 at 171-72). Both were set to
expire on December 31, 2014. (See id.). The business
license for Maxi Tax Resource was not affected by these
events. Barr was able to continue operating Maxi Tax Resource
at 1849 before the beginning of tax season. Center Point
continued to renew Maxi Tax's business license, and Barr
continued to operate Maxi Tax Resource at 1849 in 2015 and
has apparently not had a journeyman barber license from JCBC
since 2014. “[M]y main problem that I have is with JCBC
because they still have not renewed my business license, so
there's no way I could even hire a barber.” At the
time of her deposition she did not have a barbershop business
license from the JCBC for 2017.
testified that Maxi Tax consisted of the bulk of her income,
and that Barr Sisters Salons generally operated at a loss.
Barr testified that her tax returns consist of her entire
income. (See Barr Depo. at 192-193); (but
see Barr Depo. at 191-192) (“Q. So all the income
that you made from Barr Sisters is reflected in your income
tax returns? A. The majority of it. Unless I made tips, I
keep my tips, I don't put that in
testified that she has no knowledge regarding how the City of
Center Point trains its employees. Barr testified that the
only way in which she was paid from Maxi Tax was as an
employee. Barr testified that the only way in which she was
paid from Barr Sisters was as an independent contractor.
Thus, Barr did not sustain personal losses from the failure
of the businesses outside of an alleged loss in personal
income. Barr owns all businesses jointly with Cynthia Barr
(her sister), Terry Harris (her fiancé), Audia (her
daughter), and Vincent Brockett (her son). None of the other
owners were named as parties to this lawsuit. Barr alleges
financial damages, emotional distress, and loss of income
resulting from these occurences. The majority of Barr's
claimed damage is $43, 000 per year of total financial
damages to the businesses, which does not include her alleged
personal lost income. She alleges that her personal lost
income is between $15, 000 and $20, 000 from hair clientele.
Barr testified that she first started seeing a psychiatrist
in December of 2016, more than two years after her business
licenses were revoked.
Motion To Strike
long been the law in this circuit that, when deciding a
motion for summary judgment, a district court may not
consider evidence which could not be reduced to an admissible
form at trial. See Macuba v. Deboer, 193 F.3d 1316,
1323 (11th Cir. 1999). But, until 2010, Rule 56 lacked a
formal procedure to challenge such inadmissible evidence. In
2010, the advisory committee added Rule 56(c)(2), which
A party may object that the material cited to support or
dispute a fact cannot be presented in a form that would be
admissible in evidence.
Fed. R. Civ. P. 56(c)(2).
Motion for Summary Judgment
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 (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 and citation 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. Once the moving party has
met its burden, Rule 56(e) requires the non-moving party to
go beyond the pleadings in answering the movant. Id.
at 324. 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.
underlying substantive law identifies which facts are
material and which are irrelevant. 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 non-movant. Chapman, 229
F.3d at 1023. 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. 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.
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. (citation omitted). 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.
(citation omitted) (emphasis added).
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 (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.
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, a government
official first must prove that he was acting within his
discretionary authority.” Id.
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 within 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.”
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.
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). 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).
under the plaintiff's allegations, the individual
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.
“unlawfulness must be apparent” under preexisting
law. 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 official 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.”).
the Saucier framework was made non-mandatory by the
Supreme Court in Pearson v. Callahan, 555 U.S. 223,
236, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009), 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.
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 reasonable
competent officer would have” acted as the public
official did. Malley v. Briggs, 475 U.S. 335, 341,
106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986).
Defendants' Motion To Strike Is Granted in Part and
moved to strike some of Barr's exhibits used in her
response to the motion for summary judgment. (Doc. 70 at 1).
Defendants also moved to strike the “arguments
supported by these exhibits.” (See id.). The
motion challenges two exhibits. (See Id. at 1-6).
The Court will address each in turn.
first move to strike “alleged statements made by
Henderson and Watkins from [the] purported JCBC
minutes” from the meeting on August 26, 2014. (Doc. 70
at 1) (emphasis and capitalization omitted). The Defendants
note that Barr has not actually submitted the JCBC minutes
into evidence, she is relying on statements from depositions
about what those minutes allegedly said. (See Id. at
1-2). There are essentially two statements that the
Defendants contest. The first is a statement allegedly made
by Watkins at the meeting. (Doc. 70-1 at 4). The second is a
statement that was allegedly made by Henderson to Paulding
who then relayed the statement at the meeting. (Doc. 70-1 at
have several arguments for why statements from these
documents are inadmissible. (See Doc. 70 at 2-4).
The Defendants argue that Barr is unable to authenticate the
minutes. (See Doc. 70 at 2). Rule 901 speaks to the
issue of authentication. See Fed. R. Evid. 901(a)
(“To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is
what the proponent claims it is.”). In response to the
authentication argument, Barr argues that Paulding
“testified that she recognized the . . . exhibits as
the official minutes of the Barber Commission that were
provided through her counsel during discovery” and for
that reason “the Barber Commission Meeting Minutes can
be authenticated at or prior to trial.” (See
Doc. 74 at 3). This indicates to the Court that Barr is
attempting to authenticate the document via Rule 901(b)(1).
See Fed. R. Evid. 901(b)(1) (“(1)
Testimony of a Witness with Knowledge. Testimony
that an item is what it is claimed to be.”). The