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Barr v. Johnson

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

May 15, 2018

GETA BARR, Plaintiff,



         I. Introduction

         This 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).[1] Plaintiff Geta Barr filed two separate motions to strike the affirmative defense of justification outlined in the motions for summary judgment. (Docs. 65, 66).[2] 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.

         For the 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 County, Alabama.

         II. Relevant Background[3]

         A. Facts Pertinent to the City Motion

         In 1986 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 center.

         From 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 Parkway.

         Starting 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, [4] 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 students.

         When 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[5] 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 licenses[6]to practice as a barber. (See Paulding Depo. at 55:23 to 56:3).

         Paulding 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 hair.

         On 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 counsel.

Ala. Code § 45-37-40.04(d) (emphasis added).

         Barr testified that, at the hearing, JCBC Commissioner Florence Johnson said: “[we're] going to send the sheriff to shut you down.”[7] 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.[8] 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.[9] (Barr Dep. p. 106:7-16).

         On 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.

         On 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).[10] 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.

         There 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[11] 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 capitalization omitted).

         Barr testified that she never produced all requested revenue records.[12] 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).[13] 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).

         On October 23, 2014, the Center Point City Council met again. (10-23-14 Minutes).[14] The City Council unanimously passed the following motion:

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).

         After 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.).

         Both 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 ….”

         On 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.

         N-Rel 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).

         Barr 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 2016.

         Barr 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.

         Barr 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 there.”).[15]

         Barr 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.

         III. Standards

         A. Motion To Strike

         It has 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 provides:

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).

         B. Motion for 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 (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.

         The 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.

         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. (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).

         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 (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.

         C. 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, a government official first must prove that he was acting within his discretionary authority.” Id.

         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 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.

         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). 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 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.

         The “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.”).

         However, 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.

         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 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).

         IV. Analysis

         A. Defendants' Motion To Strike Is Granted in Part and Otherwise Denied

         Defendants 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.

         1. JCBC Minutes

         Defendants 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 2-3).

         Defendants 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 ...

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