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Moore v. City of Birmingham

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

June 29, 2018

ANDRE MOORE, Plaintiff,
CITY OF BIRMINGHAM, et al., Defendants.



         Pending before the court is the Defendants' Motion for Summary Judgment. (Doc. 35). The defendants, the City of Birmingham (“City”), A.C. Roper (“Roper”), and Brian Spoonire (“Spoonire”), filed their motion on September 29, 2017, and they seek to dismiss the plaintiff's complaint 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). Accordingly, the undersigned enters the following Memorandum Opinion.


         Moore filed his original complaint in the Circuit Court of Jefferson County, Alabama, on August 3, 2016 (doc. 1-1, p. 2), and the City, Roper, and Spoonire filed their notice of removal on August 7, 2016 (doc. 1). Moore subsequently moved for leave to amend his complaint on January 12, 2017 (doc. 16). He filed his First Amended Complaint on February 16, 2017, adding as defendants two Birmingham police officers, Tony Gilchrist (“Gilchrist”) and Felicia Sturdivant (“Sturdivant”). (Doc. 17).[1] Moore alleged that Gilchrist and Sturdivant were the two BPD officers who responded to his beauty parlor on September 16, 2014. (Doc. 17, ¶¶ 28-29).

         Subsequently, on August 31, 2017, Moore filed a Motion and Brief to Correct Complaint. (Doc. 29). In the motion, Moore sought to substitute Wesley Robinson (“Robinson”) and Dexter Cunningham (“Cunningham”), two other Birmingham police officers, for Gilchrist and Sturdivant; consequently, Moore also moved to voluntarily dismiss Gilchrist and Sturdivant. (Doc. 29, p. 1). The court denied the substitution of Robinson and Cunningham in place of Gilchrist and Sturdivant (doc. 30), but granted the voluntary dismissal of Gilchrist and Sturdivant, dismissing the claims against Gilchrist and Sturdivant with prejudice (docs. 30, 31).[2] Accordingly, the following claims remain pending:

• Count I - Violation of Moore's procedural due process rights under the Due Process Clause of the Fourteenth Amendment to the U.S Constitution secured by 42 U.S.C. §1983 against Spoonire.
• Count IV - Violation of Moore's liberty rights under the Due Process Clause of the Fourteenth Amendment to the U.S Constitution secured by 42 U.S.C §1983 against Spoonire.
• Count VI - Trespass against Spoonire
• Count VII[3] - Failure to Adequately, Train, Discipline, and Supervise against Roper.
• Count VIII - Agency against the City

         The City, Roper, and Spoonire filed a motion for summary judgment on September 29, 2017. (Doc. 35). Moore filed a response in opposition on October 19, 2017. (Doc. 37) In his response, Moore “concedes [that the City] is not vicariously liable for [any] [f]ederal claims” and that he “does not have evidence of a City policy, custom, or practice” sufficient to support a direct claim against the City under Monell v. Dep't of Soc. Servs of City of N.Y., 436 U.S. 658, 690-91 (1978). (Doc. 37, p. 18-19). On November 2, 2017, the City, Roper, and Spoonire filed a reply.


         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, 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. 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, in this case, the plaintiff, Andre Moore (“Moore”). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Accordingly, the following facts, taken in a light most favorable to the non-moving plaintiff, are relevant to the instant motion for summary judgment.

         Moore has owned and operated Andre's Hair Styling and Barber Training Center (“Barber School”) in Birmingham, Alabama, since 2012. (Doc. 35-3, pp. 15:22 - 16:8; doc. 35-3, p. 30:7-12). He has been licensed to do so by the Jefferson County Barber Commission. In late August or early September of 2014, Trina Paulding (“Paulding”), an inspector with the Jefferson County Barber Commission (“JCBC”), visited the Barber School to inform Moore that another inspector, Kay Wallace (“Wallace”), intended to shut down the school because Moore failed to pay the renewal of his license fee. (Doc. 35-3, pp. 51:2 - 52:14). Moore had previously written a check to pay the renewal license fee, but the JCBC failed to deposit the check for approximately six months, causing the check to be returned for insufficient funds. (Doc. 35-3, pp. 51:19 - 52:5). When he learned that his check had bounced and that his license had not been paid, Moore contacted Wallace, offering to pay approximately $150 that day and to pay the remaining balance on September 4, 2014. (Doc. 35-3, pp. 53:9 - 54:13). Wallace accepted the partial payment. (Doc. 35-3, p. 53:9-18).

         On September 4, before Moore could pay the remaining balance, Wallace and Paulding surveilled the Barber School to ensure that Moore was not operating the school without a current license. (Doc. 35-3, p. 47:1-6). Although his school was on vacation the week of September 4, Moore was present at the Barber School to complete administrative work in his office. (Doc. 35-3, pp. 210:9 - 211:3). While Wallace and Paulding observed the Barber School, two students exited the school after receiving copies of tests they had recently missed. (Doc. 35-3, pp. 211:4 - 212:5). Other than Moore, the two students, and Marvin Smith, who was there to perform maintenance, nobody was present at the Barber School on September 4. (Doc. 35-3, pp. 58:18 - 60:14). Before confronting Moore, Paulding requested an officer from the Birmingham Police Department (“BPD”) to be present at the scene to “stand by”[4] while she and Wallace shut down the Barber School. (Doc. 35-2, Spoonire Affidavit, pp. 3-4). Spoonire responded to the dispatch and arrived to stand by while Wallace and Paulding ordered Moore to vacate the Barber School. (Id.).

         As one of Moore's students was leaving the Barber School, the student called Moore to inform him that Wallace and Paulding were outside of the Barber School with a police officer. (Doc. 35-3, p. 59:16-22). Moore went outside to speak with Wallace, Paulding, and Spoonire and invited them inside after they began to make a scene. (Doc. 35-3, pp. 57:18 - 58:15). Once inside, Moore had a conversation with Wallace and Paulding, who accused him of operating the Barber School without a license. (Doc. 35-3, p. 61:1-18). After informing Wallace and Paulding that he was closed and not teaching classes, Moore offered to pay the remaining balance on his license, but Wallace refused to accept money. (Doc. 35-3, pp. 61:1-18, 62:15-21). While Moore discussed the license issue with Wallace, Spoonire stood by with his hand on his gun. (Doc. 35-3, p. 62:22-23). Eventually, Spoonire directed Moore to comply with Wallace's instructions (doc. 35-3, p.63:1-4), and Spoonire escorted Moore out of the Barber School, placing his hand on Moore's arm (doc. 35-3, pp. 76:11 - 77:9, 218:4-10). Spoonire allowed Moore to lock up his building while he escorted Moore out. (Doc. 35-3, pp. 217:9 - 218:23). Wallace instructed Moore to appear before the JCBC on the following Monday to explain why he was operating the Barber School without a current license. (Doc. 35-3, p. 78:6-11).

         After the confrontation on September 4, 2014, Moore decided to apply for licenses under the State of Alabama to remove himself from the jurisdiction of the JCBC. (Doc. 35-3, pp. 94:6 - 95:23; 96:19 - 98:6). By September 15, 2014, Moore possessed an instructor license, beauty salon license, barber shop license, and school license through the State of Alabama Cosmetology Commission. (Doc. 35-3, p. 101:18-22). Additionally, Moore contacted BPD's Chief Deputy Alan Hatcher (“Hatcher”) on some date between September 5 and 15, 2014, who stated that “his men” should not have been at the Barber School on September 4.[5](Doc. 35-3, p. 101:4-15). Because Moore possessed licenses under the State of Alabama, Hatcher also explained to Moore that the JCBC no longer had jurisdiction over him.[6] (Doc. 35-3, p. 101:4-15).

         On September 16, 2014, Moore was operating a beauty salon, but he was not teaching cosmetology or barbering at the Barber School.[7] (Doc. 35-3, pp. 91:12-22; 109:19-21). Wallace and Paulding came into the Barber School unannounced, and Wallace instructed Paulding to take pictures of Moore operating the Barber School without a license. (Doc. 35-3, pp. 107:2 - 108:7). Furthermore, Wallace told Moore that he was “not supposed to be operating.” (Doc. 35-3, p. 110:7-15). At that point, Moore took Wallace into his office to explain to her that she did not have jurisdiction and that he possessed licenses through the State of Alabama. (Doc. 35-3, p. 110:7-15). Either Wallace or Paulding then called BPD to request an officer to “stand by” while the two of them closed the Barber School. (Doc. 35-3, pp. 108:18-22, 111:2 - 112:14). At least two BPD officers arrived at the Barber School in response to the dispatch. (Doc. 35-3, p. 113:19-22). Wallace explained her position to the BPD officers, and Moore explained his license issue to the BPD officers. (Doc. 35-3, p. 114:9-19). Wallace and Paulding, along with the BPD officers, told everybody to vacate the Barber School. (Doc. 35-3, pp. 122:7 - 123:11; 136:2-10). The BPD officers told one of Moore's stylists that she had to go, and the officers removed a flat iron from her hand. (Doc. 35-3, pp. 116:23 - 117:10). Wallace, Paulding, and the BPD officers took items outside of the Barber School; for example, Wallace and the BPD officers took down a television belonging to one of Moore's stylists and placed it outside along with her other items. (Doc. 35-3, pp. 118:17 - 121:20). Furthermore, either Wallace or a BPD officer pushed Moore, although Moore acknowledges he does not know who pushed him. (Doc. 35-3, p. 133:9-18). At that point, everybody inside of the Barber School began to leave the property. (Doc. 35-3, pp. 134:21 - 136:21).

         After speaking to Hatcher a second time, Moore returned to the Barber School on September 17, 2014, and has operated the Barber School without incident since that time. (Doc. 35-3, pp. 140:14 - 141:23).

         On September 29, 2014, the JCBC filed a complaint in the Circuit Court of Jefferson County, Alabama (“circuit court”), seeking declaratory and injunctive relief against Moore. (Doc. 37-1, Order and Preliminary Injunction, p. 1). Moore subsequently filed a motion for preliminary injunction in the state action on January 12, 2015. (Doc. 37-1, Order and Preliminary Injunction, p. 1). The circuit court granted Moore's motion on April 16, 2015, and enjoined the JCBC from, in relevant part: (1) failing to act on Moore's license application to the JCBC for the fiscal year 2015; (2) preventing Moore from operating the Barber School; (3) interfering with the operation of the Barber School without providing notice and a hearing prior to interference; and (4) “interfering with the operation of [Moore's] cosmetology business[, ]” which is licensed under the State of Alabama. (Doc. 37-1, Order and Preliminary Injunction, p. 13). The circuit court held that the JCBC denied Moore due process when it ordered him to cease operations on September 16, 2014, because: (1) the JCBC failed to comply with its enabling authority under the Alabama Code; (2) the JCBC wrongfully hired Wallace, who was not qualified for the position under Alabama Code § 45-37-40.02(d), (e), and (f); and (3) the JCBC, which has authority over barber shops only, acted without authority in shutting down Moore's beauty salon on September 16, 2014. (Doc. 37-1, Order and Preliminary Injunction, pp. 11-12).[8]


         A. Federal Due Process Claims against Spoonire

         At the outset, it is clear that this constitutional claim is pleaded against Officer Spoonire only; his employer, the City of Birmingham, is not a named defendant with respect to this claim. (See Plaintiff's First Amended Complaint, Doc. 17, ¶¶ 33-39). As a result, the court will focus its analysis only upon Officer Spoonire's personal-capacity liability, to which he has pleaded qualified immunity.

         1. Qualified Immunity Framework

         Officers sued in their individual capacities may raise qualified immunity as a defense. Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991). Qualified immunity shields “government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Case v. Eslinger, 555 F.3d 1317, 1325 (11th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). At its core, qualified immunity balances “the need for a remedy to protect citizens' rights and the need for government officials to perform their duties without the fear of constant, baseless litigation.” Kingsland v. City of Miami, 382 F.3d. 1220, 1231 (11th Cir. 2004). Essentially, “[q]ualified immunity ‘gives ample room for mistaken judgments' but does not protect ‘the plainly incompetent or those who knowingly violate the law.'” Kingsland, 282 F.3d at 1231-32 (quoting Malley v. Briggs, 475 U.S. 335, 343 (1986)). These broad principles guide the court.

         Qualified immunity first requires Spoonire to prove that he was “‘acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.'” Kingsland, 382 F.3d at 1232 (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). If Spoonire demonstrates “that he was acting within his discretionary authority, the burden [then] shifts to [Moore] ‘to show that qualified immunity is not appropriate.'” Stephens v. DeGiovanni, 852 F.3d 1298, 1314 (11th Cir. 2017) (quoting Lee, 284 F.3d at 1194). At that point, qualified immunity requires Moore to answer two inquiries in the affirmative: (1) whether his constitutional rights have been violated and (2) “whether the right violated was ‘clearly established.'” Brown v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010); see, e.g., Stephens, 852 F.3d at 1314. Moore must answer both inquiries in the affirmative for Spoonire “to lose qualified immunity, and this two-pronged analysis may be done in whatever order is deemed most appropriate for the case.” Id. (citing Person v. Callahan, 555 U.S. 223, 242 (2009)).

         Spoonire argues that he is entitled to qualified immunity for both federal law claims arising under the Due Process Clause, reasoning that he was acting within his discretionary authority and that he did not violate a clearly established law. Moore contends that Spoonire was not acting within his discretionary authority and asserts that Spoonire violated his clearly established rights.

         2. Discretionary Authority

         As noted previously, Spoonire must first demonstrate that he was acting within his discretionary authority to be entitled to qualified immunity. An officer acts within his discretionary authority when his actions “(1) were undertaken pursuant to the performance of his duties, and (2) were within the scope of his authority.” Roberts v. Spielman, 643 F.3d 899, 903 (11th Cir. 2011) (quoting Jordan v. Doe, 38 F.3d 1559, 1566 (11th Cir. 1994)) (internal quotation marks omitted). Importantly, “the scope-of-authority inquiry is not whether it was within the defendant's authority to commit the allegedly illegal act.” Grider v. City of Auburn, 618 F.3d 1240, 1262 n.33 (11th Cir. 2010) (quoting Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004)) (internal quotation marks omitted). Otherwise, the analysis is nothing “more than an untenable tautology.” Grider, 618 F.3d at 1262 n.33 (quoting Holloman, 370 F.3d at 1266). Therefore, the court looks generally at the officer's actions, “temporarily putting aside the fact that it may have been committed for an unconstitutional purpose, in an unconstitutional manner, to an unconstitutional extent, or under unconstitutionally inappropriate circumstances.” Grid ...

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