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Robinson v. Ash

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

March 18, 2019

RUTH L. ROBINSON, Plaintiff,
DOTHAN POLICE OFFICER SHANE ASH, in both his individual and official capacities, Defendant.



         This case asks whether a city police officer who, apparently without seeking permission or notifying proper authorities, decided to investigate an alleged crime the officer admits occurred outside his city's jurisdiction, then used his findings to get a search warrant allowing him to peruse the contents of an attorney's cell phone, is entitled to qualified and state-agent immunity. The answer, under federal and Alabama law, is no.

         Before the court is Defendant's motion for summary judgment. (Doc. # 48.) Defendant contends that qualified and state-agent immunity entitle him to summary judgment on the individual-capacity claims under 42 U.S.C. § 1983 and Alabama law, respectively. Defendant also argues that the official-capacity claims fail under both § 1983 and Alabama law. Defendant is correct on the latter, but not on the former. Defendant is immune from the official-capacity claims, but not the individual-capacity claims. The court will therefore grant Defendant summary judgment only on the official-capacity claims.

         Summary judgment is inappropriate on the individual-capacity claims. Defendant contends that, even if he is not entitled to qualified or state-agent immunity, summary judgment is due because a lawful search warrant cleanses any constitutional infirmities in his actions. Not so. For the reasons below, there is a genuine dispute of material fact as to whether Defendant violated Plaintiff's constitutional and state-law rights. The court will therefore deny Defendant's motion for summary judgment on the individual-capacity claims.


         Subject-matter jurisdiction over the federal-law claims is proper under 28 U.S.C. § 1331 and 42 U.S.C. § 1983. Jurisdiction over the state-law claims is proper under 28 U.S.C. § 1367. The parties do not contest personal jurisdiction or venue.


         To succeed on a motion for summary judgment, the moving party must demonstrate 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 court views the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmoving party. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).

         The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for the motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying the portions of the record illustrating the absence of a genuine dispute of material fact. Id. Alternatively, a movant who does not have a trial burden of production can assert, without citing the record, that the nonmoving party “cannot produce admissible evidence to support” a material fact. Fed.R.Civ.P. 56(c)(1)(B); see also Fed. R. Civ. P. 56 advisory committee's note (“Subdivision (c)(1)(B) recognizes that a party need not always point to specific record materials. . . . [A] party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact.”).

         If the movant meets its burden, the burden shifts to the nonmoving party to establish - with evidence beyond the pleadings - that a genuine dispute material to each of its claims for relief exists. Celotex Corp., 477 U.S. at 324. A genuine dispute of material fact exists when the nonmoving party produces evidence allowing a reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).


         Defendant Shane Ash is an investigator for the Dothan Police Department. Plaintiff Ruth Robinson, an attorney, represents James Bailey, a man convicted of murder, in post-conviction proceedings in state court in Henry County. Dothan is in adjoining Houston County, and both counties comprise the Twentieth Judicial Circuit of Alabama.

         Plaintiff was scheduled to attend a hearing in the Bailey case at the Henry County Courthouse on October 7, 2016. In preparation, Plaintiff did some digging. Two days before the hearing, on October 5, 2016, Plaintiff learned that Danielle Whittington might have some information relating to Bailey's case. As it turns out, Whittington was a confidential informant against Bailey in one of his criminal cases, (Doc. # 49-1, at 2), although Plaintiff claims she did not know this when she first reached out to Whittington, (Doc. # 51-6, at 3). In any event, hoping to find out more, Plaintiff called Whittington's mother to try to get in touch with Whittington.

         Whittington called Plaintiff shortly thereafter. Plaintiff says Whittington told her she needed more time to get her thoughts together and would call Plaintiff back the next day. (Doc. # 51-6, at 2.) Whittington says she told Plaintiff not to call again. (Doc. # 49-1, at 2.) Plaintiff sent Whittington several more messages that evening. According to Plaintiff, Whittington responded by text that she was out of minutes on her cell phone and would be unable to call until the October 7, the day of the hearing. (Doc. # 51-6, at 2.)

         So Plaintiff decided to visit Whittington in person. The next day, October 6, Plaintiff went to Whittington's house near Newton, Alabama - a town with corporate limits entirely within Dale County - a little after 10:00 p.m. According to an affidavit by the sheriff of Houston County, the actual “Newton” address of Whittington is in Houston County, not Dale County. (Doc. # 49-9, at 1.) In any event, the address was outside Defendant's Dothan police jurisdiction but apparently inside the same county - Houston. Plaintiff knocked on the door, but Whittington's boyfriend answered and told Plaintiff that Whittington was not home. (Doc. # 49-1, at 3.) Plaintiff departed Whittington's house.

         The Bailey hearing was scheduled in the Henry County Courthouse for the next day, October 7. That morning, Plaintiff left Whittington a voicemail shortly before the hearing asking Whittington to give her a call. (Doc. # 51-6, at 3.) At the hearing, Twentieth Circuit District Attorney Douglas Valeska accused Plaintiff of stalking and harassing Allen Hendrickson (not Whittington), one of the officers involved in one of Bailey's cases and “the very officer whom [Plaintiff] has sought to hold accountable in [those] cases.” (Doc. # 1, at 7.) Plaintiff denied the accusations, and the circuit court judge declined to address the matter. (Doc. # 51-6, at 3.)

         As she was leaving the hearing, Plaintiff was detained, and her cell phone was seized by Henry County Sheriff's deputies, who presented her a copy of a search warrant, for the phone, issued by a judge of the Twentieth Judicial Circuit. (Doc. # 51-6, at 3.) The only crime mentioned in the warrant is “the crime of intimidating a witness.” (Doc. # 49-4, at 2.)

         As it turns out, Defendant was the one who obtained the search warrant from a judge in Dothan, Houston County. Defendant had received a call the day before from Allen Hendrickson - the individual alleged by Valeska to be the victim of Plaintiff's harassment. (Doc. # 49-2, at 2.) But the call from Hendrickson was not about Plaintiff harassing Hendrickson. Instead, it was about Whittington, who had called Hendrickson to complain about Plaintiff contacting her. Whittington told Hendrickson (who repeated it to Defendant) that Plaintiff had tried to get her to commit perjury by telling the court that a Dothan police officer named Terry Nelson had framed Bailey in his drug case and was framing people for murder. (Doc. # 49-1, at 2.)

         Armed with the tip from Hendrickson, Defendant - who, remember, is a Dothan police investigator - decided to investigate. Defendant called Whittington, who told Defendant the same story she had told Hendrickson about Plaintiff calling her to try to get her to commit perjury. (Doc. # 49-2, at 2-3.) The next day, Whittington called Defendant to tell him that Plaintiff had showed up to her house uninvited late at night asking for her. Defendant asked if Whittington wanted to press charges against Plaintiff, and she said yes. (Doc. # 49-1, at 3; Doc. # 49-2, at 3.)

         Defendant recounted Whittington's tale in an affidavit he used to obtain the warrant from a judge of Alabama's Twentieth Judicial District to search Plaintiff's cell phone for evidence of the “crime of intimidating a witness.”[1] (Doc. # 49-4, at 2.) The warrant was to be executed in Henry County, where Plaintiff would be at the courthouse. (Doc. # 49-4, at 1.) So it was that Henry County Sheriff's deputies, later joined by Defendant, seized Plaintiff's phone as she was leaving the Henry County Courthouse on October 7, 2016. After Defendant took possession of Plaintiff's phone, it remained in the Dothan police department's possession. A few weeks following the seizure, Plaintiff asked Defendant when she would get her phone back, and he did not give her a definitive answer. (Doc. # 51-6, at 4.) This lawsuit followed.[2]

         Plaintiff alleges that Defendant orchestrated an illegal search and seizure of her phone to retaliate against her for representing Bailey and speaking out against police misconduct, as well as to discover attorney-client privileged communications. Defendant contends his actions did not violate Plaintiff's constitutional rights because they were justified by a search warrant supported by probable cause, and, in any event, he is entitled to qualified and state-agent immunity on the individual-capacity claims. He moves for summary judgment on those grounds.


         A. The Individual-Capacity Claims

         Defendant's motion relies almost entirely on qualified and state-agent immunity to defend against the individual-capacity claims. The Supreme Court has articulated a two-step procedure for deciding a claim of qualified immunity. First, the court asks, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). If the plaintiff passes the first step, the court then asks whether the right was “clearly established” at the time of the alleged misconduct. Id. The Supreme Court later held that lower courts have discretion to decide which of Saucier's two prongs they address first when a defendant raises qualified immunity. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Because Defendant does not carry his initial burden of showing he was acting within his discretionary authority, the court will discuss that aspect of the qualified-immunity analysis before turning to the constitutional violations Plaintiff alleges.

         1. Because Defendant appears to have acted outside his jurisdiction, he is not entitled to ...

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