United States District Court, N.D. Alabama, Southern Division
MICHAEL PUTNAM UNITED STATES MAGISTRATE JUDGE.
before the court are two motions for summary judgment, the
first filed by the defendants City of Homewood
(“City”), Lt. Tim Ross (“Ross”),
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).
Randall Corey Anderson 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). Due to the filing of the
First Amended Complaint, the previous motions to dismiss were
deemed moot. (See doc. 35, p. 2 n.4).
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
• 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)
• 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
• 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
• Negligent failure to train against the City (Ninth and
• 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)
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).
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
SUMMARY JUDGMENT STANDARD
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.
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.
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).
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
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
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 -
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). 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).
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). 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).
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). 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). 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).
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
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). 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 -
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.
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,
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).
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). 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). Once it became apparent that the group
would not leave, Ross approached Anderson's group. (Doc.
54-7, pp. 14:9 - 15:8).
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” 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 -
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),  and he states that no one from Wal-Mart
came up to his group and asked him to leave. (Doc. 54-2, p.
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).
Federal-Law Claims (First, Second, Third, Fourth, and Fifth
Claims) against the City
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.
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
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
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.
City Policy or Custom
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.
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.
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 ...