United States District Court, M.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
C. MARKS CHIEF UNITED STATES DISTRICT JUDGE.
pending before the court is the Recommendation of the
Magistrate Judge (doc. 74) which recommends that the
defendants' motion to dismiss the second amended
complaint (doc. 55) be granted in part and denied in part. On
October 22, 2018, the plaintiff filed objections to the
Recommendation (doc. 79) limited “solely to the
court's recommendation for dismissal of [his] federal
claims for excessive force under the Fourth Amendment against
[defendants] Arias and Partridge (count two).”
(Id. at 2). The defendants have filed a response to
the plaintiff's objections. (Doc. 82). Consequently, the
Court will only specifically address in this memorandum
opinion the plaintiff's objections to dismissal of count
two of the second amended complaint.
district court judge “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge.” 18 U.S.C. § 636(b)(1). The
court has conducted an independent and de novo
review of the Recommendation as a whole as well as those
portions to which objections have been made. For the reasons
that follow, the plaintiff's objections are due to be
overruled and the Recommendation adopted.
count two, the plaintiff alleges that “defendants,
(sic) Partridge and Arias intentionally exercised deadly
force by shooting their guns at plaintiff without any
objectively reasonable justification to do so.” (Doc.
51 at 27-28, ¶ 119). The Magistrate Judge concluded that
defendants Arias and Partridge were entitled to qualified
immunity on this count because the plaintiff had
“failed to plead facts that plausibly establish that
the officers committed a constitutional violation.”
(Doc. 74 at 57). The Magistrate Judge also concluded that
even if the plaintiff had alleged sufficient facts to
establish a constitutional violation, the defendants were
still entitled to qualified immunity because “the
plaintiff has failed to meet his burden of demonstrating that
the officers violated a right that was clearly established on
the date in question.” (Id.)
decision about qualified immunity is “completely
separate from the merits of the action” and is decided
by the Court because qualified immunity is not merely a
defense to liability but rather immunity from suit
Plumhoff v. Rickard, 572 U.S. 765, 771-72 (2014);
Pearson v. Callahan, 555 U.S. 223, 237 (2009).
to qualified immunity is for the court to decide as a matter
of law. Specifically, a court considering a defendant's
claim of qualified immunity must address the following
question of law:
[W]hether the legal norms allegedly violated by the defendant
were clearly established at the time of the challenged
actions or, in cases where the district court has denied
summary judgment for the defendant on the ground that even
under the defendant's version of the facts the
defendant's conduct violated clearly established law,
whether the law clearly proscribed the actions the defendant
claims he took.
Mitchell, 472 U.S. at 528, 105 S.Ct. 2806; see
also Harlow, 457 U.S. at 818, 102 S.Ct. 2727
(“[T]he judge appropriately may determine, not only the
currently applicable law, but whether that law was clearly
established at the time an action occurred.”);
Cottrell v. Caldwell, 85 F.3d 1480, 1488 (11th Cir.
1996) (“Qualified immunity is a legal issue to be
decided by the court....”); Stone v. Peacock,
968 F.2d 1163, 1166 (11th Cir. 1992) (“The law is now
clear ... that the defense of qualified immunity should be
decided by the court, and should not be submitted for
decision by the jury.”); Hudgins v. City of
Ashburn, 890 F.2d 396, 403 (11th Cir. 1989)
(“[T]he availability of qualified immunity necessarily
is a question of law.”).
Simmons v. Bradshaw, 879 F.3d 1157, 1163 (11th Cir.
2018). See also, Stephens v. DeGiovanni, 852 F.3d
1298, 1321 (11th Cir. 2017) (“In deciding whether an
officer is entitled to summary judgment based on qualified
immunity, the question of whether the force used by the
officer in the course of an arrest is excessive is a
“‘pure question of law, '” decided by
the court.” Myers v. Bowman, 713 F.3d 1319,
1328 (11th Cir. 2013) (quoting Scott [v.
Harris], 550 U.S. [372, ]  381 n.8, 127 S.Ct. [1769, ]
 1776 n.8)).
defense of qualified immunity completely protects government
officials performing discretionary functions from suit in
their individual capacities unless their conduct violates
‘clearly established statutory or constitutional rights
of which a reasonable person would have known.'”
Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir.
2003). See also, Andujar v. Rodriguez, 486
F.3d 1199, 1202 (11th Cir. 2007). To receive qualified
immunity, the defendants must first demonstrate that they
were acting within the scope of their discretionary authority
when the allegedly wrongful acts occurred. Cottone,
326 F.3d at 1357; Lee v. Ferraro, 284 F.3d 1188,
1194 (11th Cir. 2002). There is no dispute that defendants
Arias and Partridge were acting within the course and scope
of their discretionary authority during their encounter with
the plaintiff. Thus, the burden shifts to the plaintiff to
demonstrate that the defendants are not entitled to qualified
immunity. Cottone, 326 F.3d at 1358.
satisfy his burden, the plaintiff must show two things: (1)
that the defendants committed a constitutional violation, and
(2) that the constitutional right the defendants violated was
“clearly established.” Crosby v. Monroe
County, 394 F.3d 1328, 1332 (11th Cir. 2004).
“Public officials are immune from suit under 42 U.S.C.
§ 1983 unless they have violated a statutory or
constitutional right that was clearly established at the time
of the challenged conduct.” City and County of San
Francisco, Ca. v. Sheehan, --- U.S. -, -, 135 S.Ct.
1765, 1774 (2015) (internal citations omitted).
“To be clearly established, a right must be
sufficiently clear that every reasonable official would have
understood that what he was doing violates that right.”
Ibid. (brackets and internal quotation marks
omitted). “When properly applied, [qualified immunity]
protects all but the plainly incompetent or those who
knowingly violate the law.” Ashcroft v.
al-Kidd, 563 U.S. -, -, 131 S.Ct. 2074, 2085, 179
L.Ed.2d 1149 (2011) (internal quotation marks omitted).
“We do not require a case directly on point, but
existing precedent must have placed the statutory or
constitutional question beyond debate.” Id.,
at -, 131 S.Ct. at 2083.
Taylor v. Barkes, --- U.S. -, -, 135 S.Ct. 2042,
the law is not clearly established, then the court should
dismiss the case against the government official.”
Merricks v. Adkisson, 785 F.3d 553, 559 (11th Cir.
plaintiff first argues that the Magistrate Judge erred in
finding that he had not stated a plausible constitutional
claim under the Fourth Amendment when she incorrectly assumed
facts that were not included in the second amended complaint.
Specifically, the plaintiff complains that the Magistrate
Judge made a “judicial leap into the jury's
fact-finding role.” (Doc. 79 at 8). The plaintiff
objects to the Magistrate Judge's finding that he was a
threat to the officers because he opened the door to his
residence with a gun in his hand. The plaintiff further
argues that in considering the facts of this case, “the
court ignored the ...