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Holley v. Town of Camp Hill

United States District Court, M.D. Alabama, Eastern Division

October 29, 2018

FRANK G. HOLLEY, Plaintiff,



         Camp Hill, Alabama, is a town of about 1, 000 people. Local government in a town that tiny always requires the same small group of people to interact over and over again. That can lead to friendships . . . or hostility.

         Frank Holley and Danny Evans were frequent foes in Camp Hill politics. In 2015, Evans was the mayor of Camp Hill and a recurring target of Holley's criticism. In retaliation, says Holley, Evans told Chief of Police Johnny Potts to arrest Holley. And one day, when Holley was driving into town, Potts did indeed stop and arrest Holley. Holley pleaded guilty to making an improper lane change, but he also filed this lawsuit for First Amendment retaliation.

         Because Holley pleaded guilty to a traffic violation, the court must assume that Potts had probable cause to stop and arrest him. Wood v. Kessler, 323 F.3d 872, 880 n.10 (11th Cir. 2003). And once Potts stopped Holley, he also had probable cause to arrest him for other offenses. Evans and Potts are thus entitled to qualified immunity. But under the Supreme Court's recent decision in Lozman v. City of Riviera Beach, 138 S.Ct. 1945 (2018), Holley can still sue the Town of Camp Hill for First Amendment retaliation.

         Defendants' motion for summary judgment is therefore due to be granted in part and denied in part. The Recommendation of the Magistrate Judge is due to be adopted in part, modified in part, and rejected in part.


         The court has federal question subject-matter jurisdiction over Holley's First Amendment retaliation claim, 28 U.S.C. §§ 1331, 1343, and exercises supplemental jurisdiction over his state-law tort claim, id. § 1367(a). The parties do not dispute personal jurisdiction. Venue is proper. Id. § 1391(b).


         To prevail on summary judgment, Defendants must show that there is “no genuine dispute as to any material fact” and that they are “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). (See Doc. # 44, at 2-4.)

         The Magistrate Judge filed a Recommendation on Defendants' motion for summary judgment. (Doc. # 44.) The court reviews disputed portions of that Recommendation de novo. 28 U.S.C. § 636(b). It may accept, reject, or modify the Recommendation. Fed.R.Civ.P. 72(b)(3).

         III. FACTS

         Camp Hill is a small, incorporated town in Tallapoosa County.[1] Just 1, 014 people lived there in 2010.[2] Like other small towns, Camp Hill is governed by a mayor and town council. Ala. Code §§ 11-40-12(a), 11-44F-3. The council is Camp Hill's legislative body. Id. § 11-43-43. The mayor is the town's “chief executive officer, ” and he or she has “general supervision and control of all other officers and the affairs of the . . . town.” Id. § 11-43-81.

         Frank Holley and Danny Evans have both been the mayor of Camp Hill. Holley has served four terms, and Evans has twice defeated Holley in mayoral elections. (Doc. # 31-2, at 4, 12.) Evans was the mayor in 2015. At the same time, Holley remained politically active and often attended town council meetings. He publicly questioned Evans's mayoral salary, the lack of a recent town audit, and Camp Hill's financial condition. (Doc. # 31-2, at 9-12; Doc. # 31-5, at 2-3.) The minutes of an August 2015 town council meeting reflect the contentious nature of Holley and Evans's relationship:

Mr. Frank Holley was present and addressed Mayor Evans asking why he wasn't allowed to speak at the last Council Meeting. Mr. Holley then asked Mayor Evans to resign or Council to impeach him. There was no response. Holley said he was denied public records when requested. Mr. Holley asked Mayor Evans if he was getting paid more than $800.00 per month. Mayor Evans replied “no.” Mayor Evans also said to Mr. Holley that he was tired of him (Holley) coming to Council Meetings intimidating him. Mr. Holley asked Mayor Evans if he felt intimidated. Mayor Evans replied “Yes, I feel intimidated by you.”

(Doc. # 31-6, at 1; see Doc. # 31-5, at 3.) Of course, both men deny that they saw each other as rivals. (Doc. # 31-2, at 11; Doc. # 35-1, at 6-8.) But neither were they allies, and Evans allegedly used the police to retaliate against Holley.

         A. Evans allegedly ordered police officers to arrest Holley in retaliation for Holley's protected speech.

         Holley has repeatedly alleged that Evans directed Camp Hill police officers to “target” or “profile” him. “This [profiling] is no surprise, ” Holley wrote to Evans in September 2015, “because of my addressing important and sensitive issues at council meetings which has drawn attention to your incompetency, and your inability to compete intellectually.” (Doc. # 31-3, at 1.)

         According to witnesses, in 2014 Evans told police officers to target Holley. Roosevelt Finley, who was the police chief in 2014, says that Evans repeatedly ordered him “to arrest [Holley] on illegal charges, whether it be for DUI or whatever because of his [constant] meddling in Camp Hill affairs.” (Doc. # 31-7, at 1; see Doc. # 31-10, at 5.) Finley also testified that Evans told him to “set [Holley] up” and to do “anything you can do to arrest that b-ard, put his old a- in jail.” (Doc. # 31-10, at 4.) Once, when Finley told Evans there was no probable cause to arrest Holley, Evans allegedly responded: “Well, you should arrest him for something.” (Doc. # 31-10, at 3.)

         A former Camp Hill police officer, Nathan White, likewise testified that Evans told him to arrest Holley for driving under the influence even though Holley was “completely sober.” (Doc. # 31-8, at 1; Doc. # 31-11, at 2-3.)

         And in an affidavit, Camp Hill resident Morris Greathouse says he overheard Evans tell Johnny Potts “to arrest Mr. Frank Holley . . . because [he] drove around Camp Hill drunk all the time.” (Doc. # 31-9, at 1.)[3] According to Greathouse, Evans also told Potts that “he had already ordered Chief Roosevelt Finley to arrest that d- Frank Holley because he could not stand that Mother F-er.” (Doc. # 31-9, at 1.)

         Evans allegedly targeted other people too. According to Greathouse, Evans told Potts to target a man named Hubert Finley. Potts then arrested Hubert. (Doc. # 31-9, at 1.) Roosevelt Finley also testified that Evans told him to “target” Douglas Heard. (Doc. # 31-10, at 2.) Douglas Heard claims Potts arrested him “without probable cause as directed by Danny Evans.” (Doc. # 31-16, at 2.)

         In response to Holley's allegations, Evans testifies that he “never ordered anybody to be arrested.” (Doc. # 35-1, at 5.) No. one admits ever arresting Holley, Hubert Finely, or Douglas Heard without probable cause. In the ten years before Holley's arrest, “the Town of Camp Hill never had a legal finding against it that anyone in the police department or any other public official violated the First Amendment rights of any citizen.” (Doc. # 27-3, at 2.) And in that same decade, Camp Hill “never received any complaints [other than those from Holley] that a mayor, chief of police or any other public official attempted to violate the constitutional right of any citizen to free speech.” (Doc. # 27-3, at 3.)

         B. Potts arrested Holley, who pleaded guilty to a traffic violation.

         According to Holley, Evans's “targeting” culminated on December 14, 2015. Holley had gone to Dadeville to buy a bottle of liquor. He was driving back into Camp Hill when Johnny Potts, who was then the chief of police, pulled him over. (Doc. # 27-1, at 4.) According to Potts, Holley had been driving “unusually slowly” and was weaving between the center lane line and the side of the road. Potts claims he suspected Holley of drunk driving. (Doc. # 27-2, at 3-4.) But Holley maintains that he used his turn signal, drove just under the speed limit, and otherwise obeyed the law. He denies that the road even had a center lane line. (Doc. # 27-1, at 4; Doc. # 31-2, at 14-16.)

         Once Holley pulled over, Potts got out of his cruiser and walked up to Holley's truck.[4] Within seconds, Potts noticed a .38 pistol on the bench seat next to Holley. Potts asked if Holley had a pistol permit. Holley replied that he did not have a permit but that he had a “permission card” from the sheriff of Tallapoosa County. (See Doc. # 31-2, at 14.)[5] Potts then asked if Holley had been drinking, stating that Holley had been “all over the white line.”

         Less than two minutes after first talking to Holley, Potts announced he was going to conduct a field sobriety test. The test consisted of Potts asking Holley to touch his nose with each hand and to stand on one foot. Holley touched his nose with his left hand, but he had trouble doing so with his right. (Before the test, he told Potts he had just had surgery on his right shoulder.) Holley was shaky while standing on one foot. Potts then arrested Holley “for driving under the influence of alcoholic beverages.” Holley was in handcuffs about three minutes into the stop. Potts took Holley's pistol from the truck and put it in his cruiser. Potts explained that he did not want anyone to steal the “high-dollar weapon.” Holley denied drinking alcohol.

         Potts then drove Holley to jail, where a blood alcohol test revealed that Holley had no alcohol in his system whatsoever. (Doc. # 27-2, at 3.) Later that night, Potts charged Holley with making an illegal lane change and carrying a pistol without a permit. (Doc. # 31-14, at 2; Doc. # 31-15, at 2.) On his attorney's advice, Holley eventually pleaded guilty to the lane violation. (Doc. # 31-15, at 1; Doc. # 31-17, at 1.) In exchange, Camp Hill dismissed the weapons charge. (Doc. # 31-14, at 1.)

         C. The Magistrate Judge recommended denying Defendants' motion for summary judgment.

         After pleading guilty, Holley sued Evans, Potts, and the Town of Camp Hill for First Amendment retaliation and for “negligence or wantonness.” (Doc. # 1.) Defendants moved for summary judgment. (Doc. # 27.) They argue Holley's guilty plea bars him from challenging whether Potts had probable cause. If Potts had probable cause, Defendants continue, there can be no ...

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