United States District Court, N.D. Alabama, Western Division
MEMORANDUM OF OPINION
SCOTT COOGLER UNITED STATES DISTRICT JUDGE
Beverly Spencer (“Spencer”), C.B.S. Properties,
LLC (“CBS”), and B & V Wrecker Service, Inc.
“Plaintiffs”) bring this action against
Defendants Sheriff Jonathan Benison (“Sheriff
Benison”), in his individual capacity and in his
official capacity as Sheriff of Greene County; D.R.EA.M.,
Inc. (“DREAM”); Bell Mere Properties, LLC
(“Belle Mere”); Accuity Capital Group, LLC
(“Accuity”); Bernard Gomez (“Gomez”);
and Ché D. Williamson (“Williamson”)
(collectively “Defendants”), alleging claims
under 42 U.S.C. §§ 1983 and 1985 and state law.
Before the Court are Sheriff Benison's Motion for Summary
Judgment (doc. 43), Motion for Reimbursement of Fees &
Costs (doc. 47), and Motion to Strike (doc. 57). The motions
have been briefed and are ripe for review. For the reasons
stated below, Sheriff Benison's Motion for Summary
Judgment (doc. 43) is due to be denied; his Motion for
Reimbursement of Fees & Costs (doc. 47) is due to be
denied; and his Motion to Strike (doc. 57) is due to be
April 2011, Defendant Belle Mere, acting through Gomez and
Williamson, purchased real estate in Greene County, Alabama
from Plaintiff CBS, acting through Spencer. As part of the
sale, CBS agreed to grant Bell Mere a twenty-five foot
easement running from CBS's adjacent property. Belle Mere
then leased the property to Accuity, which permitted DREAM to
operate a bingo gambling facility, known as Frontier Bingo,
on the property. CBS and Bell Mere almost immediately began
to disagree over issues related to the property, and in late
2011, Bell Mere filed suit against CBS in Alabama state
court. On April 17, 2012, Bell Mere filed for Chapter 11
bankruptcy. During that litigation, the bankruptcy court
entered an order judicially establishing the boundaries of
Bell Mere's easement. However, this did not put an end to
the boundary dispute.
the next several years, Spencer contacted law enforcement on
multiple occasions claiming that Frontier Bingo and its
patrons were trespassing on his property. In January 2016,
Gomez hired construction workers to improve a previously
constructed roadway running through the easement. The parties
dispute whether this construction was outside the boundaries
of the judicially recognized easement. On January 13, 2016,
Spencer called 911 to report that the construction workers
were trespassing on his land. Deputy Sheriff Jeffrey Grant
(“Deputy Grant”) responded to the call and spoke
with both Spencer and the bulldozer operator. After speaking
with Deputy Grant, the bulldozer operator agreed to stop
working on the roadway.
January 18, 2016, Spencer again called 911 complaining that
Gomez had workers building a roadway within his property
line. Deputy Sheriff Charlie Davis (“Deputy
Davis”) responded to that call and suggested that the
bulldozer operator stop working until the property dispute
was resolved. However, Deputy Davis did not get any further
involved because he did not know the property boundary lines.
On February 24, 2016, Sheriff Benison responded to another
call from Spencer about the roadway construction. When
Sheriff Benison arrived, he observed that Spencer, his
brother, and his son had put out cones, a bulldozer, and
vehicles to block the construction from encroaching on what
Spencer claimed was his property. He also observed that
traffic was backed up on Highway 11. The parties dispute
whether the cones and vehicles were blocking the driveway so
that people could not enter or exit the bingo hall.
Additionally, they dispute whether Sheriff Benison had
received a copy of the bankruptcy order that established the
boundaries of the easement so that he knew the correct
property lines. However, Spencer did measure the easement
boundaries during the incident with Sheriff Benison.
parties dispute whether Sheriff Benison talked with Frontier
Bingo's operators before going to speak with Spencer
about his vehicles and cones. According to Spencer, Sheriff
Benison entered and exited the bingo hall with Defendant
Gomez prior to speaking with Spencer and his family members.
When Sheriff Benison spoke with Spencer, he expressed concern
that the cones and vehicles would prevent people from being
able to access the bingo hall. He told Spencer that it
created a public safety issue because the fire department
might not be able to respond to any emergencies at the bingo
hall. Sheriff Benison went on to say: “I've got
customers in here. People got customers in here. You
can't block these folks.” Spencer replied that his
cones and vehicles were not blocking the road. Sheriff
Benison then spoke on the phone with Spencer's lawyers
who told him that they were attempting to get an injunction
to prevent the construction workers from coming onto
Spencer's property. Instead of waiting on the injunction
to resolve the boundary dispute, Sheriff Benison ordered
Spencer to remove the vehicles and cones from the driveway.
He also threatened to arrest Spencer for disorderly conduct
and told him that he would charge him with a felony if he
blocked the road. A state trooper who spoke with Spencer at
the scene told him that the Sheriff should not have issued
the order and inserted himself in a private boundary dispute.
According to Spencer, as a result of Sheriff Benison's
order, he stopped confronting Frontier Bingo, and it was able
to complete construction that encroached upon his property.
to Plaintiffs' claims against Sheriff Benison is their
contention that he has a personal financial interest in the
success of Frontier Bingo. The Rules and Regulations for the
Operation of Bingo within Greene County, Alabama
(“Rules and Regulations”) provides that the
Sheriff has exclusive authority to license and regulate bingo
halls within the county. Half of each bingo hall's $2,
500.00 licensing fee is paid to the Greene County
Sheriff's Office. Moreover, in 2015, Sheriff Benison
amended the Rules and Regulations so that the Greene County
Sheriff's Office receives $110 a month from each
electronic bingo hall.
judgment is appropriate “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). A dispute is genuine if “the record taken as a
whole could lead a rational trier of fact to find for the
nonmoving party.” Id. A genuine dispute as to
a material fact exists “if the nonmoving party has
produced evidence such that a reasonable factfinder could
return a verdict in its favor.” Greenberg v.
BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th
Cir. 2007) (quoting Waddell v. Valley Forge Dental
Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The
trial judge should not weigh the evidence, but determine
whether there are any genuine issues of fact that should be
resolved at trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986).
considering a motion for summary judgment, trial courts must
give deference to the non-moving party by “view[ing]
the materials presented and all factual inferences in the
light most favorable to the nonmoving party.”
Animal Legal Def. Fund v. U.S. Dep't of Agric.,
789 F.3d 1206, 1213-14 (11th Cir. 2015) (citing Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).
However, “unsubstantiated assertions alone are not
enough to withstand a motion for summary judgment.”
Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529
(11th Cir. 1987). Conclusory allegations and “mere
scintilla of evidence in support of the nonmoving party will
not suffice to overcome a motion for summary judgment.”
Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir.
2016) (per curiam) (quoting Young v. City of Palm Bay,
Fla., 358 F.3d 859, 860 (11th Cir. 2004)). In making a
motion for summary judgment, “the moving party has the
burden of either negating an essential element of the
nonmoving party's case or showing that there is no
evidence to prove a fact necessary to the nonmoving
party's case.” McGee v. Sentinel Offender
Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013).
Although the trial courts must use caution when granting
motions for summary judgment, “[s]ummary judgment
procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules
as a whole.” Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986).
Section 1983 Claims
to 42 U.S.C. § 1983, Plaintiffs sued Sheriff Benison, in
both his individual and official capacity, for depriving
Plaintiffs of their property and liberty rights in violation
of the Fifth and Fourteenth Amendments. Sheriff Benison first
moves for summary judgment on Count I of Plaintiffs'
Complaint, arguing that qualified immunity protects him from
being sued in his individual capacity. Government officials
are provided complete protection by qualified immunity when
sued in their individual capacities, as long as “their
conduct ‘does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known.'” Vineyard v. Wilson, 311 F.3d
1340, 1346 (11th Cir. 2002) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified
immunity allows government officials to carry out the
discretionary duties of their position “without the
fear of personal liability or harassing litigation,
protecting from suit ‘all but the plainly incompetent
or one who is knowingly violating federal law.'”
Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)
(citations omitted) (quoting Willingham v. Loughnan,
261 F.3d 1178, 1187 (11th Cir. 2001)). The Eleventh Circuit
engages in a two-part analysis to determine whether a
government official is entitled to the defense of qualified
immunity. “First the official must prove that the
allegedly unconstitutional conduct occurred while he was
acting within the scope of his discretionary authority.
Second, if the official meets that burden the plaintiff must
prove that the official's conduct violated clearly
established law.” Harbert Int'l, Inc. v.
James, 157 F.3d 1271, 1281 (11th Cir. 1998) (citations
Scope of Discretionary Authority
determining if an official's actions were within the
scope of his discretionary authority, courts consider
“whether they are of a type that fell within the
employee's job responsibilities.” Holloman ex
rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir.
2004). Further, the Court asks if the official was “(a)
performing a legitimate job-related function (that is,
pursuing a job related goal), (b) through means that were
within his power to utilize.” Id. “In
applying each prong of this test, [the Court] look[s] to the
general nature of the defendant's action, temporarily
putting aside the fact that it may have been ...