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Rivers v. Lenard

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

September 28, 2018




         This cause is before the court on the motion for summary judgment filed January 26, 2018, by the defendants, Corey Lenard, a police officer employed by the City of Homewood, and the City of Homewood itself. (Doc. 47). Defendants seek dismissal of all of plaintiff's claims. This matter has been fully briefed. The court has considered the pleadings, evidence, and arguments set forth by the parties. The parties have consented to the exercise of jurisdiction by the undersigned pursuant to 28 U.S.C. § 636(c).


          This case involves the frustrating yet enduring conflict between the need for police to make difficult decisions during the course of law enforcement and the essential human right of law-abiding citizens to retain their dignity as free people. A victim's report of a theft rightly demanded some action by police, which led to the physical and emotional embarrassment of an indisputably innocent woman. All that was purchased by the assault on her dignity was an increasing perception of the law's inability to protect innocent people, whether they be theft victims or the innocent targets of police investigation.

         Plaintiff Brenda Rivers brought this action pursuant to 42 U.S.C. § 1983 and Alabama state law. (Doc. 1). She has twice amended her complaint. (Docs. 5, 23). She contends that Corey Lenard, a police officer employed at the relevant time by the City of Homewood (“the City” or “Homewood”), subjected her to an unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution while he was investigating a report of a stolen wallet on the evening of December 1, 2016. (Doc. 23, pp. 3-4 (Count One)). She further asserts that Lenard used excessive force in restraining her during her shopping trip to the Wal-Mart store in Homewood, Alabama. (Doc. 23, pp. 5-6 (Count Two)). She also alleges that the defendants committed a false arrest and false imprisonment by taking her down to the floor of the Wal-Mart and handcuffing her without probable cause. (Doc. 23, pp. 6-8 (Count Three)).[1] These three federal claims are asserted pursuant to 42 U.S.C. § 1983. Ms. Rivers further asserts claims arising under Alabama state law, including false arrest and false imprisonment in violation of Alabama Code' 6-5-170 (Count Four) and negligent assault and battery in the use of excessive force to compel her detention (Count Five). (Doc. 23, pp. 7-10). Finally, she asserts that the City is vicariously liable[2] for the actions taken by defendant Lenard. (Doc. 23, pp. 10-11 (Count Six)).

         In their motion for summary judgment, the defendants assert that Rivers has not set forth a viable claim under Section 1983 against the City because the plaintiff has failed to show a causal link between any City policy, custom, or practice and the alleged unlawful conduct of Lenard. In her response to the motion for summary judgment, the plaintiff concedes that all claims against the City of Homewood are due to be dismissed. (Doc. 50, p. 7). She further has stated that she abandons her claim in Count One asserting an unlawful search. (Id.) Accordingly, the court finds that all claims against the defendant City are due to be dismissed, along with any claim asserting that she was subjected to an unlawful search under state or federal law. The claims remaining in the case, as plaintiff has conceded, are: (1) a federal-law claim of false imprisonment against Lenard; (2) a federal-law claim of excessive force against Lenard; and (3) a state-law claim of false imprisonment against Lenard.


         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 his 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 must 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.” 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 show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 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 Communication, 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).

         Summary Judgment Facts

         Applying the standards governing summary adjudication to the evidence in the record, the following facts are undisputed, or, if disputed, are viewed in the light most favorable to the non-moving plaintiff.

         Mrs. Rivers' claims arise from the report of a stolen wallet at the Homewood Wal-Mart Superstore (“the store”) on December 1, 2016. Defendant Lenard was a police officer working for the City of Homewood. He responded to a call from the police dispatcher, which reported that a wallet was taken by an “older black female” wearing a “black skirt or dress.” (Audio filed conventionally as Defendants' Ex. A, Doc. 47-2).[3] Lenard entered the store and spoke with the victim, who told him the person who stole her wallet was wearing “dark underclothing” that may have been a skirt or dress and a black coat. He does not remember any other description given by the victim. Apparently, he did not ask about height, weight, identifying traits, hair color, or hair style. In a written statement given after the incident at issue, the victim reported that the person who took the wallet was wearing a black vest with white sleeves and had blonde hair that was sticking up.

         Lenard first approached an African American woman, not the plaintiff, requesting to search her purse. She consented, but Lenard did not find the stolen wallet. He continued walking through the store. As he approached Mrs. Rivers, she and her husband were pushing a shopping cart behind the first woman he approached, and that woman commented loudly enough for Mrs. Rivers to hear, “Oh my God, here he comes again. I can't believe he's going to follow me through whole store.” (Doc. 50-8, Plaintiff's Depo, p. 69). But instead of approaching the woman, Lenard approached Mrs. Rivers.

         Officer Lenard first appears on the surveillance video at 8:21:37 p.m. on December 1, 2016. Mrs. Rivers and her husband were shopping at the store when Mrs. Rivers was approached by Lenard at 8:21:47 p.m.[4] Mrs. Rivers, an African American, was at the time about 57 years old and was wearing a black jacket and dark pants, which appear in the store surveillance video to be burgundy or purple. She was not wearing a “skirt or dress.” Her medium-length hair was dark brown or black. Lenard was wearing a police uniform when he approached Mrs. Rivers, but he did not verbally identify himself as a police officer. Lenard asked her, “Do you have something in your purse that does not belong to you?” She did not answer, and at 8:23:21 p.m., she moved her shopping cart down the aisle, away from Lenard, towards the back of the store. Lenard asked if he could search her purse and she said “no.” At 8:23:48 p.m., Lenard stopped Mrs. Rivers again a few aisles from where the first encounter occurred, and he radioed Officer Jason Suggs, who was at the front of the store with the victim, asking Suggs to bring the victim to his location. Within seven seconds, at 8:23:55 p.m., Mrs. Rivers turned and moved away from Lenard toward her husband. Seconds later, at 8:24:00 p.m., Lenard reached for Mrs. Rivers' arm, and she pulled her arm away in “self-defense.” She continued to move away from Lenard, but remained within a few feet of where he had grabbed at her.[5]

         Officer Suggs joined Lenard at 8:24:05 p.m. in the aisle where Lenard was trying to question or search Mrs. Rivers. Officer Lenard was struggling with Mrs. Rivers and her husband. By 8:24:45 p.m., the victim can be seen on the surveillance video watching the struggle from a few feet away, and at 8:24:50 p.m., the victim told Suggs that Mrs. Rivers was not the woman who stole her wallet. Six seconds later, at 8:24:56 p.m., Officer Suggs appears to tell Officer Lenard that the victim said that Mrs. Rivers was not the suspect.[6] Lenard asserts that he did not hear Suggs' statement. An onlooker, Kayatta Evans, who can be seen in the surveillance video a few feet from the struggle, also told Lenard that the victim said that Mrs. Rivers was not the person who stole the wallet. (Affi. of Evans, Plaintiff's Ex. C, Doc. 50-4).[7]

         Lenard and Mrs. Rivers continued to struggle, as the officer held Mrs. Rivers' arm behind her back and she attempted to move away or pull out of his grasp. Mr. Rivers approached Lenard and appeared to argue with him. The struggle continued for about two minutes, and then at 8:27:45 p.m., Lenard threw Mrs. Rivers to the floor in a maneuver he described as a “takedown.” At this, Mr. Rivers became more agitated and tried to intervene. Officer Suggs, who had been watching the struggle, unholstered his Taser and pointed it at Mr. Rivers. Mrs. Rivers remained face-down on the floor while Lenard forcibly handcuffed her arms behind her back.

         A crowd of shoppers gathered near the aisle where Mrs. Rivers was on the floor, shouting at Lenard to let her go. One onlooker recorded the incident on her cell phone and posted it to You-Tube.[8] In the audio from this recording, Lenard can be heard asking Mrs. Rivers to get up and walk, but she refused, telling him that she wasn't going to jail. Lenard told her that she was being arrested for “failure to comply.” Ms. Evans, who appears to be an African American of about the same age as Mrs. Rivers, told the crowd of onlookers and Mrs. Rivers that the officer had also stopped her and had searched her purse. Ms. Evans was wearing black pants, a red print shirt, and a black sweater.[9] At 8:29:20 p.m., the victim reappeared in the aisle where Mrs. Rivers was handcuffed on the floor, and apparently told the officers gathered around that Mrs. Rivers was not the person who stole the wallet.

         After Mrs. Rivers lay on the floor for several minutes, at about 8:32, another officer arrived and talked with the crowd of onlookers and with Mr. Rivers. On the You-Tube video, Ms. Evans can be heard repeatedly stating that the victim had said the thief was not Mrs. Rivers, and Mrs. Rivers and Mr. Rivers also told police that the victim had said that Mrs. Rivers was not the person who stole the wallet.

         Officer Lenard asked for the victim to come and tell him whether Mrs. Rivers was the person who stole the wallet. At 8:34, a fourth officer arrived and, within the next couple of minutes, two more officers arrived in the aisle. The final officer on the scene knelt down to talk with Mrs. Rivers. A chair was brought to the aisle, and Mrs. Rivers was raised up onto her knees. Eventually, at 8:51 p.m., the handcuffs were removed and Mrs. Rivers stood up. She and Mr. Rivers remained in the aisle with the onlooker who appears to be Kayatta Evans and the last officer to arrive on the scene, until they all departed from the view of the surveillance camera at 9:20 p.m. No charges were ever filed against Mrs. Rivers.

         Mrs. Rivers went to the emergency room complaining that she had been hurt in the takedown. She had bruises to her ribs. She also visited an orthopedist, and missed a couple of days of work because of injuries from the incident. She took pain medications for about three weeks but did not suffer any permanent injuries from the takedown.

         At the time of these events, the City had adopted the following ordinance:

Any person who shall violate, or fail, neglect or refuse to comply with any lawful order of any lawful officer of the city made in pursuance of and under such officer's authority as such officer, or who shall violate, or shall fail, neglect or refuse to comply with any of the codes, rules, regulations or laws adopted by this Code, shall be guilty of an offense; provided, however, the provisions of this section shall not apply to violations of official duty imposed by this Code upon officers or employees of the city as such, unless the provision imposing the duty also expressly makes the violation thereof unlawful or punishable.

The Code of Ordinances, City of Homewood, Alabama, Chap. 1, § 1-9.[10] This ordinance appears to be the basis of Officer Lenard's assertion that the plaintiff could be arrested for “failure to comply.”[11]


         The defendants argue that the claims brought against Lenard, who is being sued in his individual capacity on the federal claims of excessive force and false imprisonment, are due to be dismissed because he is entitled to qualified immunity on the federal' 1983 claims. Plaintiff asserts that he is not entitled to immunity because it was not objectively reasonable to detain Mrs. Rivers, because her conduct was not an illegal failure to comply, and because it was not objectively reasonable to detain her once he had been told that she was not the perpetrator of the theft. Lenard also asserts that he is entitled to state agent immunity for the state-law claim of false imprisonment. ...

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