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Anderson v. City of Homewood

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

June 12, 2018

CITY OF HOMEWOOD, et al., Defendants.



         Pending before the court are two motions for summary judgment, the first filed by the defendants City of Homewood (“City”), Lt. Tim Ross (“Ross”), [1] and Officer Michael Jeffcoat (“Jeffcoat”) on June 8, 2017 (doc. 49), and the second by Wal-Mart Stores East, L.P. (“Wal-Mart”) on June 14, 2017 (doc. 54). The defendants seek to dismiss plaintiff's complaint, which consists of various federal-law and state law claims, in its entirety. The motion has been fully briefed, and the parties have consented to dispositive jurisdiction by a United States Magistrate Judge in accordance with 28 U.S.C. § 636(c).


         Plaintiff Randall Corey Anderson[2] filed the original Complaint in this action on March 17, 2016, and named as defendants the City and Wal-Mart. (Doc. 1). Both the City and Wal-Mart filed motions to dismiss the complaint. (Docs. 3 and 5). On July 15, 2016, Anderson filed a First Amended Complaint, adding as defendants Ross, Jeffcoat, and David Roberts (“Roberts”). (Doc. 21).[3] Due to the filing of the First Amended Complaint, the previous motions to dismiss were deemed moot. (See doc. 35, p. 2 n.4).

         On August 15, 2016, the City, followed by Ross and Jeffcoat, filed motions to dismiss, or alternatively for more definite statement. (Docs. 24 and 25). Wal- Mart and Roberts filed a motion to dismiss on August 15, 2016, as well. (Doc. 27). The court subsequently entered a Memorandum Opinion and Order granting in part and denying in part the motions to dismiss. (Docs. 35 and 36). As a result, the following claims remain pending:

• Arrest of the plaintiff without probable cause in violation of the Fourth Amendment against the City, Ross, and Jeffcoat. (First and Fourth Claims)
• Denial of due process and equal protection in violation of the Fourteenth Amendment against the City (First and Fourth Claims)[4]
• Gross negligence against the City (Second Claim)
• Deliberate indifference to the need for further training of police officers with respect to making constitutionally proper arrests against the City (Second Claim)
• Use of unconstitutionally excessive force in making an arrest of the plaintiff in violation of the Fourth Amendment, against the City and Jeffcoat (Third Claim)
• False imprisonment in violation of 42 U.S.C. § 1983 and denial of equal protection in violation of the Fourteenth Amendment against the City (Fifth Claim)
• Negligent slander and false-light invasion of privacy against the City (Eighth Claim)
• Common law false arrest and false imprisonment against the City, Ross, and Jeffcoat (Ninth Claim)
• Assault and battery against the City and Jeffcoat (Tenth Claim)
• Negligent failure to train against the City (Ninth and Eleventh Claims)
• Negligent, wanton, intentional failure to train employees regarding the proper circumstances under which to sign a criminal complaint for trespass against Wal-Mart (Ninth and Eleventh Claim)

         (Doc. 36, pp. 1-4). On December 27, 2016, the City filed a motion to reconsider. (Doc. 37). The court granted the motion on February 8, 2017, holding that punitive damages were not available as a remedy against the City. (Doc. 41). Each of the defendants subsequently filed an Answer to the First Amended Complaint on January 10, 2017. (Docs 38, 39, and 40).

         After twice extending the deadline to file dispositive motions (docs. 43 and 47), the City, Ross, and Jeffcoat filed a motion for summary judgment on June 8, 2017 (doc. 49), and Wal-Mart filed a motion for summary judgment on June 14, 2017 (doc. 54). Anderson filed responses in opposition to the two motions on September 6, 2017, although the reason for the delay is not clear from the record. (Doc. 57 and 58). The City, Ross, and Jeffcoat filed a reply on September 14, 2017 (doc. 60), and Wal-Mart filed a reply on September 21, 2017 (doc. 61).


         Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party asking for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting former Fed.R.Civ.P. 56(c)). The movant can meet this burden by presenting evidence showing there is no dispute of material fact or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322-23. There is no requirement, however, “that the moving party support its motion with affidavits or other similar materials negating the opponent's claim.” Id. at 323.

         Once the moving party has met its burden, Rule 56 “requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions of file, ' designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (quoting former Fed.R.Civ.P. 56(e)). The nonmoving party need not present evidence in a form necessary for admission at trial; however, he may not merely rest on his pleadings. Celotex, 477 U.S. at 324. “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Id. at 322.

         After the plaintiff has properly responded to a proper motion for summary judgment, the court “shall” grant the motion if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The substantive law will identify which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. “[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. His guide is the same standard necessary to direct a verdict: “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52; see also Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 745 n. 11 (1983).

         However, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The evidence supporting a claim must be “substantial, ” Marcus v. St. Paul Fire and Marine Ins. Co., 651 F.2d 379 (5th Cir., Unit B, 1981); a mere scintilla of evidence is not enough to create a genuine issue of fact. Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004); Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1249-50 (11th Cir. 2004). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249 (citations omitted); accord Spence v. Zimmerman, 873 F.2d 256 (11th Cir. 1989). Furthermore, the court must “view the evidence presented through the prism of the substantive evidentiary burden, ” so there must be sufficient evidence on which the jury could reasonably find for the plaintiff. Anderson, 477 U.S. at 254; Cottle v. Storer Communications, Inc., 849 F.2d 570, 575 (11th Cir. 1988). Nevertheless, credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are the function of the jury, and therefore the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255. The non-movant need not be given the benefit of every inference but only of every reasonable inference. Brown v. City of Clewiston, 848 F.2d 1534, 1540 n. 12 (11th Cir. 1988).

         III. FACTS

         For purposes of summary judgment, the courts are directed to view the facts in the light most favorable to the non-moving party, which, in this case, is Anderson. Accordingly, the following facts are relevant to the instant motions for summary judgment.

         On December 26, 2014, Anderson was in Birmingham, visiting family over the Christmas holiday. (Doc. 54-2, pp. 75:13 - 76:7). Although he grew up in Birmingham, Anderson lives in Fulton County, Georgia. (Doc. 54-2, pp. 23:1-17, 7:6-14). Anderson arrived at the Wal-Mart store on Lakeshore Parkway, in Homewood, Alabama, on December 26 at approximately 4:15 p.m. to purchase drinks and snacks to take to his cousin's home. (Doc. 54-2, pp. 84:22 - 85:19, 102:12 - 103:6).

         Anderson first saw Black Lives Matter (“BLM”) protestors while he was at the traffic light on Lakeshore Parkway waiting to turn into Wal-Mart. (Doc. 54-2, p. 106:13-19). He was neither aware of any planned demonstration at Wal-Mart when he arrived (doc. 54-2, pp. 80:10 - 81:8) nor involved in the protest (see doc. 54-4, pp. 262:21 - 263:12).[5] Furthermore, he maintains that he had not previously participated in a BLM demonstration or protest. (Doc. 54-2, pp.74:20 - 75:5). After he parked his car in the Wal-Mart parking lot, he stood outside his car to watch the BLM protestors as they made their way from Lakeshore Parkway, through the Wal-Mart parking lot, into the Wal-Mart store itself, and then back out to the parking lot to return to Lakeshore Parkway. (Doc. 54-2, pp. 108:15 - 111:4, 113:15 - 114:17, 118:19 - 119:20, 120:10 - 121:15). While he was at his car observing the BLM protest, his friend and another man joined him. (Doc. 54-2, pp. 117:6-13, 122:15 - 123:2).

         Once the protestors returned to the crest of Wal-Mart Drive near where it intersects with Lakeshore Parkway, at approximately 5:00 p.m., the police ordered the protestors to disperse. (Doc. 54-2, p. 130:6-23; see also doc. 54-4, pp. 286:21 - 287:4). Anderson had been in the parking lot for approximately thirty to forty-five minutes watching the protest. After the police's command to disperse, Anderson noticed Mercutio Southall, one of the protestors, approach his small group and greet Anderson's friend. (Doc. 54-2, pp. 134:17 - 137:19, 139:17 - 140:9). Although the protestors were dispersing, Anderson and his group did not begin to leave because they were having a conversation unrelated to the protest. (Doc. 54-2, pp. 138:23 - 139:8). During this time, however, Anderson did overhear “the police telling everybody to leave, ” as the police generally followed the protestors into the parking lot to ensure the protestors actually left the premises. (Doc. 54-2, p. 150:1-13).[6] Anderson, however, did not hear anybody from Wal-Mart ask him or his group to leave the property. (Doc. 54-2, p. 139:9-11). According to Anderson, nobody told his group to leave “until what was heard on the video.” (Doc. 54-2, p. 149:8-11).

         Approximately one minute after Southall stopped to talk to his group, six or seven officers approached Anderson's group; specifically, the officers walked past Anderson to engage Southall. (Doc. 54-2, pp. 145:9 - 146:22). After the officers approached his group, Anderson began using his cellphone to record the officers' interaction with Southall when Ross asked Southall: “Do you need to go to jail today?” (Doc. 54-2, pp. 146:23 - 147:23; see also doc. 52).[7] Southall failed to comply with Ross's order to produce identification, and Ross directed an officer to arrest Southall. (Doc. 54-2, pp. 152:22 - 154:20; see also doc. 52). Jeffcoat initially assisted with the arrest, arriving after Ross initiated contact with Southall. (Doc. 51-5, p. 13:9-20).[8] Although no one asked him to stop recording the encounter, Corporal Carr (“Carr”) did direct Anderson to step back during Southall's arrest, using his baton demonstratively. (Doc. 54-2, pp. 154:21 - 155:22; see also doc. 52; doc. 54-7, pp. 17:17 - 18:3).

         During Southall's arrest, Ross went over to the other two men in Anderson's group and twice ordered them to leave. (Doc. 54-2, pp. 156:13 - 157:16; see also doc. 52). Both men, who were several feet away from Anderson at the time, complied with Ross's second order after Ross said, “Goodbye.” (Doc. 54-2, p. 157:3-16; see also doc. 52). They were not arrested. It is clear from the video that Ross's orders to the two men were specifically directed to them and not Anderson. (See doc. 52).

         After Ross ordered the other two men to leave, Ross approached Anderson and ordered him to leave the scene as well, or to go with Southall. (Doc. 54-2, pp. 163:10 - 164:5; see also doc. 52). Anderson immediately began to move toward his car after Ross told him to leave; however, he continued to video the encounter as he moved toward his car. (Doc. 54-2, pp. 164:15 - 165:7; see also doc. 52). Anderson testified that he turned his body to walk towards his car although his camera remained pointed at Southall, who was struggling and resisting arrest, while he walked the five to seven feet toward his car. (Doc. 54-4, pp. 322:4 - 323:23; see also doc. 52). Once he reached the hood of his car, Ross ordered that Anderson be arrested for “not moving fast enough.” (Doc. 54-2, pp. 165:11 - 167:3; see also doc. 52).[9] Carr slammed Anderson onto the hood of Anderson's car, and Jeffcoat eventually placed the handcuffs on Anderson after noticing the struggle. (See doc. 51-5, pp. 28:6 - 30:20). Jeffcoat placed handcuffs on Anderson so tightly that the handcuffs pinched and bruised Anderson's wrists. (Doc. 54-2, pp. 167:19 - 168:23).

         Soon thereafter, an unidentified officer turned Anderson around and allowed him to lean on the front of his car after Anderson asked if he could sit on the ground. (Doc. 54-2, p. 171:1-12). Once an officer began to take him to a police car, the officer loosened his handcuffs upon Anderson's request. (Doc. 54-2, p. 171:1-12). Anderson suffered minimal abrasions and bruising to his wrists, which did not require medical treatment (doc. 54-3, pp. 191:17-21, 205:20-22; doc. 55, pp. 7-8) and a few scratches to his car (doc. 55, pp. 5-6).

         An unidentified officer then transported Anderson to jail. (Doc. 54-2, p. 170:11-14). At the jail, Anderson learned he was arrested for trespassing, failure to obey an officer, [10] and possession of a firearm at a demonstration. (Doc. 54-4, p. 338:10-23; see also doc. 54-7, pp. 34:15 - 35:10). Jeffcoat prepared the incident report and the arrest report. (Doc. 51-5, pp. 16:9-18, 17:6-12). The City posted Anderson's mugshot on the City's Facebook page. (Doc. 54-7, pp. 38:11 - 39:8). Anderson additionally posted the video of his arrest to his own personal Facebook page. (Doc. 54-4, pp. 253:8-23; 360:7 - 361:11).

         Although he heard the police order the protestors to disperse and leave the property (doc. 54-2, p. 130:6-23; doc. 54-4, pp. 271:14 - 272:5) and he heard Ross order the other two men in his group to leave (doc. 54:2, p. 156:13-17), Anderson denies that the police ordered him three times to leave before he was arrested (doc. 54-4, pp. 235:4-10).[11] Anderson did not think that the orders to the protestors to leave applied to him because he was not part of the protest. (Doc. 54-4, p. 286:13-18). According to Anderson, Ross “wasn't talking directly to” him when Ross gave orders to the protestors to disperse and then to the two other men in his group to leave. (Doc. 54-2, p. 162:9-13). Anderson also asserts that Ross personally ordered him to leave only once. (Doc. 161:3-7; see also doc. 54-4, pp. 239:14 - 240:4; doc. 52). However, Ross gave Anderson's group a demonstrative hand signal to leave the property. (Doc. 54-7, pp. 14:9 - 15:8; doc. 54-5, pp. 17:1-8, 19:20 - 20:9). Then, Southall gave the hand signal back to Ross. (Doc. 54-7, pp. 14:9 - 15:8).[12] Once it became apparent that the group would not leave, Ross approached Anderson's group. (Doc. 54-7, pp. 14:9 - 15:8).

         On the date of the incident, Roberts was the store manager of the Wal-Mart located in Homewood, Alabama, and he was present at the time of the BLM protest. (Doc. 54-5, pp. 7:21 - 8:2, 9:13-19). To become manager, Roberts went through extensive and ongoing training, which included training on how to properly “trespass”[13] an individual from Wal-Mart's property. (Doc. 54-6, pp. 1-2, ¶ 3). According to Wal-Mart policy, only a store manager or designated agent “can sign a warrant for criminal trespass.” (Doc. 54-6, pp. 2, ¶ 3). After learning about a planned demonstration at Wal-Mart from the Homewood Police Department (“HPD”), Roberts requested HPD's assistance. (Doc. 54-5, pp. 9:21 - 10:5, 14:19-22). Then-Chief of Police Jim Roberson was present at Wal-Mart and was in charge of the police presence. (Doc. 54-7, p. 11:11-15). Ross also was present, in a supervisory position (doc. 54-7, p. 11:16-23), but operational command ultimately belonged to Lieutenant Ken Atkinson (doc. 54-7, pp. 22:16 - 23:3).

         Roberts asserts that he “personally trespassed several groups of demonstrators from Wal-Mart's premises using a prepared statement from Wal-Mart's corporate office.” (Doc.54-6, p. 3, ¶ 9). He claims that he read the prepared statement “both inside the store and outside the store in the parking lot, ” walking “with a police officer from group to group of all remaining demonstrators at the top of the parking lot” and reading the prepared statement. (Doc. 54-6, p. 3, ¶¶ 9, 10). Anderson maintains that he “never had any contact with the Wal-Mart manager” (doc. 54-4, p. 350:2-23), [14] and he states that no one from Wal-Mart came up to his group and asked him to leave. (Doc. 54-2, p. 139:9-11).

         Roberts went to the Homewood, Alabama, magistrate's office on December 26, 2014, to sign a complaint for criminal trespass against Anderson and Southall based on the earlier events from that evening. (Doc. 54-5, p. 13:16-18). Because of Robert's complaint, the City charged Anderson only with criminal trespass in the third degree. (Doc. 54-7, p. 35:12-18). Anderson pleaded guilty to criminal trespass in the City of Homewood Municipal Court and appealed that plea for a de novo jury trial. (Doc. 54-4, pp. 335:8-11; 362:2-12). In the Jefferson County Circuit Court, Anderson saw Roberts for the first time, and Roberts was not sure he recognized Anderson or knew Anderson. (Doc. 54-3, p. 181:2-12). The jury acquitted Anderson. (Doc. 54-4, pp. 362:16 - 363:1).


         A. Federal-Law Claims (First, Second, Third, Fourth, and Fifth Claims) against the City

         1. Municipal Liability

         Although Anderson may directly sue the City, the City cannot be held vicariously liable for the actions of its employees under a theory of respondeat superior. Monell v. Dep't of Social Services of City of N.Y., 436 U.S. 658, 690-91 (1978). In other words, the City may not “be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.” Id. at 691; see also Skop v. City of Altanta, Ga., 485 F.3d 1130, 1145 (11th Cir. 2007). Notably, “[a] ‘municipal act' is not . . . limited to decisions made by the city's official legislative body or in written agreements. City policy also may be implicated by the acts of individual policymaking officials or by pervasive city custom.” Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1480 (11th Cir. 1991).

         The City argues that it is not liable under Monell or through Ross as a final policymaker. Anderson asserts that Ross was a final policymaker capable of imputing liability to the City.

         a. Final Policymaker

         In Pembaur v. City of Cincinnati, the Supreme Court held that “[m]unicipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.” 475 U.S. 469, 481 (1986). Without “responsib[ility] for establishing final government policy, ” even an official with discretionary authority does not “give rise to municipal liability based on an exercise of that discretion.” Id. at 482 (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-824 (1985)). Thus, only a government official with final policymaking authority “may by his . . . action subject the government to [42 U.S.C.] § 1983 liability when the challenged action falls within that authority.” Brown, 923 at 1480.

         Here, however, no evidence in the record establishes that Ross possessed final policymaking authority. On the date of the incident, Ross was only a patrol lieutenant, not the Chief of Police, meaning that he did not have the final policymaking authority to establish or modify the City's arrest policy and procedure. Furthermore, while Ross gave the order to arrest Anderson, Ross was not the highest ranking officer on the scene. Ross testified that then-Chief of Police Roberson was present and that Lieutenant Atkinson possessed operational command over the scene. Accordingly, either Roberson or Atkinson possessed the final policymaking authority as to who would be arrested that evening. Therefore, Ross's order to arrest Anderson cannot rise to the level of final policymaking authority to impose liability on the City because (1) he did not have the authority to establish or change the City's arrest policy and (2) he was not the highest ranking officer on the scene on the date of the incident. Therefore, the City is not liable to Anderson for the First, Third, Fourth, or Fifth Claims because Ross was not a final policymaker at the time of the arrest and its related consequences.

         b. City Policy or Custom[15]

         As to a policy or custom, to establish 42 U.S.C. § 1983 municipality liability, Anderson must prove: “(1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). A custom is “a practice that is so settled and permanent that it takes on the force of the law.” Id. at 1290 (internal quotation marks omitted). For a custom or policy to be actionable, the plaintiff must show that the custom or policy is “persistent and wide-spread.” Id. In contrast, “random acts or isolated incidents are insufficient to establish a custom or policy.” Depew v. City of St. Marys, 787 F.2d 1496, 1499 (11th Cir. 1986). For the city to be liable for the custom, “actual or constructive knowledge of such customs must be attributed to . . . the municipality.” Id. Constructive knowledge exists when “a longstanding and widespread practice is deemed authorized by the policymaking officials because they must have known about it but failed to stop it.” City of Fort Lauderdale, 923 F.2d at 1481.

         Even assuming that he could establish a constitutional violation, Anderson has failed to come forward with any evidence whatsoever establishing a “persistent and wide-spread” custom or policy by the City of allowing officers to arrest civilians without probable cause in violation of the Fourth Amendment. Additionally, Anderson did not present any evidence of a “persistent and widespread” custom or policy by the City of allowing officers to use excessive force or to falsely imprison civilians. Anderson presented evidence detailing only his arrest and imprisonment, which can be characterized as nothing more than an “isolated event.” He has not produced evidence of other arrests without probable cause, arrests with excessive force, or false imprisonment without due process throughout the City. Therefore, the City is not liable to Anderson under Monell for the First, Third, Fourth, or Fifth Claims.

         Accordingly, summary judgment is due to be granted in favor of the City on these federal-law claims because municipal liability does not attach. Therefore, the First, Third, Fourth, and ...

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