United States District Court, N.D. Alabama, Southern Division
MICHAEL PUTNAM, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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).
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,
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
• Count VI - Trespass against Spoonire
• Count VII - Failure to Adequately, Train,
Discipline, and Supervise against Roper.
• Count VIII - Agency against the City
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.
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, 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).
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, 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
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,
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” 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.).
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).
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.(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. (Doc. 35-3, p. 101:4-15).
September 16, 2014, Moore was operating a beauty salon, but
he was not teaching cosmetology or barbering at the Barber
School. (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).
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).
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.
Federal Due Process Claims against Spoonire
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 Framework
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.
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)).
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.
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.”