Thompson v. City of Florence

          MEMORANDUM OPINION

          HERMAN N. JOHNSON, JR. UNITED STATES MAGISTRATE JUDGE.

         This action proceeds on a Motion for Summary Judgment filed by Defendants City of Florence, Alabama, Bennie Johnson, Jeff Redcross, and Guy Lambert. Plaintiff Amanda Thompson advanced 42 U.S.C. § 1983 claims against the Defendants for unlawful entry, unlawful arrest, and excessive force in violation of the Fourth Amendment to the United States Constitution, and state law claims for false arrest, false imprisonment, and assault and battery.

         Pursuant to the review herein, Defendants Redcross and Johnson attain qualified immunity on Thompson's Fourth Amendment claims. Furthermore, state-agent immunity bars Thompson's state-law claims. Finally, Thompson acceded to dismissal of the remaining claims.^[1] Therefore, for the reasons set out herein, the court GRANTS Defendants' summary judgment motion.

         SUMMARY JUDGMENT STANDARD

         “The court shall grant summary judgment 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 seeking summary judgment 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 demonstrates the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11^th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

         If the movant sustains its burden, a non-moving party demonstrates a genuine issue of material fact by producing evidence by which a reasonable fact-finder could return a verdict in its favor. Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11^th Cir. 2007) (citation omitted). The non-movant sustains this burden by demonstrating “that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11^th Cir. 1993). In the alternative, the non-movant may “come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency.” Id. at 1116-17; see also Doe v. Drummond Co., 782 F.3d 576, 603-04 (11^th Cir. 2015), cert. denied, 136 S.Ct. 1168 (2016).

         The “court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citations omitted). “‘Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). “Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.” Reeves, 530 U.S. at 151 (citation omitted). “That is, the court should give credence to the evidence favoring the nonmovant as well as that ‘evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.'” Id. (citation omitted).

         Rule 56 “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.” Celotex, 477 U.S. at 322. “In such a situation, there can be ‘no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 322-23. In addition, a movant may prevail on summary judgment by submitting evidence “negating [an] opponent's claim, ” that is, by producing materials disproving an essential element of a non-movant's claim or defense. Id. at 323 (emphasis in original).

         There exists no issue for trial unless the nonmoving party submits evidence sufficient to merit a jury verdict in its favor; if the evidence is merely colorable or is not significantly probative, the court may grant summary judgment. Anderson, 477 U.S. at 249. That is, the movant merits summary judgment if the governing law on the claims or defenses commands one reasonable conclusion, but the court should deny summary judgment if reasonable jurors could “differ as to the import of the evidence.” Id. at 250.

         FACTS^[2]

         Amanda Thompson's Apartment

         At the time of the events underlying this action, Plaintiff Amanda Thompson resided in Florence, Alabama, in an apartment below-street grade on the first floor of a building. (Thompson Dep. at 12). The building consists of an entrance adjacent to an alleyway, which remains locked and accessible by key or by having a resident “buzz” a visitor inside. (Thompson Dep. at 174-75, 190-91).

         The first floor apartments include outdoor patios that abut a concrete retaining wall and sit several feet below street level. The patio areas are visible from the sidewalk above. (Doc. 28 at 55-58). Each first-floor apartment accesses the patio area via their rear doors, and a resident or guest may also access the patio area from the outside by traversing a grassy area next to the building and proceeding through a wooden, entry gate. (Thompson Dep. at 189-90). The gate remained open during the night of the events at issue. (Thompson Dep. at 168).

         The Individual Defendant Officers Patrol the 2015 W.C. Handy Festival

         The W.C. Handy Festival is an annual, week-long festival that occurs in downtown Florence. In 2015, the Florence Police Department assigned Officers Bennie Johnson, Jeff Redcross, Guy Lambert, and Danny Hines to patrol downtown Florence in plainclothes during the festival to focus on minimizing and eliminating public intoxication and public urination. (Lambert Dep. at 31:1-5). For the events at issue, their shift commenced on Saturday, July 25, 2015, and ended once the local bars closed at 2:00 a.m.

         Saturday, July 25, 2015

         On Saturday evening, July 25, 2015, Thompson and her friend Sara Kilpatrick went out to dinner. (Thompson Dep. at 53:21-22). Thompson and Kilpatrick returned to her apartment after dinner and continued drinking. (Thompson Dep. at 56:15-22; 57:10-12). A couple of hours later, Thompson and Kilpatrick walked to FloBama Bar and Restaurant, where Thompson was employed but had the night off. (Thompson Dep. at 60 and 62). While at FloBama, Thompson's boyfriend, Mason Kemp, and his friend, Cody Sloas, agreed to stop by Thompson's apartment after their shifts at FloBama ended. (Thompson Dep. at 63).

         Thompson and Kilpatrick returned to her apartment around 11:00 p.m., and Kamp and Sloas arrived less than an hour later. (Thompson Dep. at 65:6-11). Kamp and Sloas proceeded through the open wooden gate and into Thompson's apartment via the rear patio door. (Thompson Dep. at 67:5). Thompson could not recall whether she consumed any additional alcohol that evening, and Kamp had nothing to drink because he was only twenty years old at the time. (Thompson Dep. at 73:1-12; 74:19-23). Sunday, July 26, 2015

         Around 2:00 a.m. on Sunday morning, Kilpatrick requested Thompson's assistance in the bathroom to help her take off her outfit. (Thompson Dep. at 75:14-19). While Thompson and Kilpatrick were in the bathroom, Kamp went outside to the patio, exposed his penis, and urinated. (Doc. 30-1 at 2). Kamp stated in a declaration that he urinated in a corner where the wooden gate abuts the concrete wall, and no one could see his penis from the sidewalk above the patio. (Id.) Thompson did not know Kamp had gone outside until she exited the bathroom, and it was not a common practice for guests to urinate on her patio. (Thompson Dep. at 83-83, 86-87).

         Near the conclusion of his shift, Officer Johnson walked on the sidewalk that passed above Thompson's patio. (Johnson Dep. at 31:5-32:5). As Johnson was walking, he peered down and saw Kamp while he was urinating. (Johnson Dep. at 31:5-32:5).

         Johnson paused for Kamp to finish, and he pulled out his badge and displayed it once Kamp looked up. (Johnson Dep. at 42:15-17). Johnson then declared he was a police officer, (Johnson Dep. at 44:10-13), and he informed Kamp that he could not urinate in public. (Johnson Dep. at 43:1-2).

         Kamp asked Officer Johnson for identification because he believed Johnson may be posing as a police officer. (Exhibit 1-A, Audio Recording of Mason Kamp).^[3]Subsequently, after some disputed remarks, Kamp went back into Thompson's apartment through the rear patio door.^[4] Kamp and Thompson both declared that upon re-entering Thompson's apartment, Kamp informed Thompson someone outside may be posing as a police officer, yet Kamp did not relay anything else regarding his conversation with Johnson. (Exhibit 1-A; Thompson Dep. at 81:7-11).

         Notwithstanding the dispute regarding the remarks exchanged between Johnson and Kamp, Johnson decided to apprehend Kamp for the alleged urination on the patio. Johnson did not know how to access Thompson's patio area from the sidewalk, so he spent a few minutes looking for the main entrance. (Johnson Dep. at 44-45). He encountered Officer Redcross during his search, and Johnson informed Redcross that he was attempting to arrest a male subject for urinating in public view. (Johnson Dep. at 45:6-8). After searching the building for an entrance, Johnson and Redcross discovered the open wooden gate leading to Thompson's patio. (Johnson Dep. at 52:1-5). The two officers proceeded through the gate before knocking on Thompson's patio door. (Johnson Dep. at 52:9-11).

         Upon the knocking on the patio door, Plaintiff Thompson opened it and observed Redcross and Johnson in plainclothes standing at her entrance. (Thompson Dep. at 87:3-15; 192:18-20). Thompson remained unaware that Kamp had urinated outside. (Thompson Dep. at 82:1-3). Both officers informed Thompson they needed to speak with the “gentleman” that was recently outside her apartment. (Thompson Dep. at 87:18-21; Johnson Dep. at 54:14-16). Thompson responded, “this is my apartment, what's going on?” (Thompson Dep. at 87:23-88:1). Thompson remembered no further exchanges at the door except Redcross asking her again to see the “gentleman” that was just outside. (Thompson Dep. at 88:15-18).^[5]

         Upon hearing Redcross's request to speak with the “gentleman” who was just outside, Kamp appeared from behind Thompson where the officers could see him. (Thompson Dep. at 88:20-89:1; Johnson Dep. at 55:15-19).^[6] In an attempt to seize Kamp, the officers bumped Thompson with the door as Redcross followed Kamp when he receded into the apartment. (Thompson Dep. at 91:11-13). As Johnson followed Redcross, Thompson testified that “everything kind of went chaotic.”^[7](Thompson Dep. at 89:3-4). The officers and Kamp engaged in an altercation as they attempted to arrest Kamp. As the scrum ensued between the two officers and Kamp, Sloas joined the encounter when he saw the two officers “get on” Kamp. (Thompson Dep. at 97:9-11; 97:21-98:3). Thompson declared to the officers they were not allowed in her apartment and had no right to be there. (Thompson Dep. at 96:9-12).)

         Kamp urged Thompson to call 911 and grab her gun for self-defense. (Thompson Dep. at 98; Exhibit 1-A). Thompson reached into her purse and grabbed a loaded 9mm Ruger handgun. (Thompson Dep. at 99:11-16; 108:9-10). She pointed the gun towards the floor and called 911 with her free hand. (Thompson Dep. at 12:15-16; 108:9-10). Thompson alleged that she had not seen a badge from either of the officers by this point in the evening. (Thompson Dep. at 105:5-11).

         In an audio recording of her 911 call, Thompson informed the operator that two black men “posing as police officers” (Johnson and Redcross are African-American) were in her apartment; that both men had Kamp and Sloas down on the floor; they had placed someone in handcuffs; and they “ha[d] broken half of [her] shit in [her] apartment for no reason.” (Exhibit E, Amanda Thompson 911 Call Audio). During the call, backup officers arrived on the scene, and thus, Thompson informed the operator she saw a uniformed police officer in her apartment. (Id.)

         Correspondingly, Officers Lambert and Danny Hines arrived as backup. (Lambert Dep. at 67-68; 74). Lambert testified that shortly after he arrived, he recalled Redcross declaring, “[Thompson's] got to go.” (Lambert Dep. at 107:6-8). The 911 recording identifies Thompson remarking, “you're not putting me in handcuffs.” (Exhibit E). Lambert testified he saw Thompson back away quickly, and subsequently Redcross hauled her to the floor. (Lambert Dep. at 68:8-15). Thompson alleged that Redcross tackled her to the floor while she was on the telephone with the 911 operator. (Thompson Dep. at 109:10-13).^[8] The 911 audio also recorded Thompson screaming before the call cuts off. (Id.)

         Thompson's gun flew out of her hands as she fell. (Thompson Dep. at 115:17-19; 116:3-5). Hines yelled “gun” when he saw the firearm, and Lambert retrieved the weapon and unloaded it. (Lambert Dep. at 67-68; 74).

         Thompson testified she resisted Redcross because she did not know he was a law enforcement officer attempting to arrest her. (Thompson Dep. at 116-17). In addition, she did not understand Redcross was arresting her until he had her fully handcuffed on the floor. (Thompson Dep. at 197:11-17).

         The officers transported Thompson, Kamp, and Sloas to jail without incident. (Thompson Dep. at 119-120). Johnson proceeded to a hospital for treatment of injuries inflicted by Kamp and Sloas. (Johnson Dep. at 19).

         Post-Incident Timeline

         Local authorities charged Kamp with assault in the second degree, resisting arrest, and public lewdness. (Doc. 28 at133). He pleaded guilty to the lesser included offense of assault in the third degree. (Doc. 28 at 134). Local authorities charged Sloan with assault in the second degree and resisting arrest, and he eventually pleaded guilty to the lesser included offense of assault in the third degree. (Doc. 28 at 135-36).

         Authorities charged Thompson with resisting arrest regarding her alleged interference with the arrests of Kamp, Sloas, and/or herself. (Doc. 28 at 137). The state court nolle prossed Thompson's criminal case with leave to reinstate in exchange for her agreement to give truthful testimony against Kamp and Sloas if their felony cases proceeded to trial. (Doc. 28 at 138).

         Thompson testified that she incurred bruising on her arms and thighs that remained visible for a few weeks after the incident. (Thompson Dep. at 160:10-15). In December 2015, approximately five months after the incident, Thompson began seeing a therapist. (Thompson Dep. at 129). She informed her therapist she had anxiety because there was a concert at FloBama that brought a lot of black customers, and they reminded her of Officers Johnson and Redcross. (Thompson Dep. at 132:3-7). She experienced panic attacks and struggles from anxiety as a result of the incident. (Thompson Dep. at 130:2-5; 136:12-21). However, she had not experienced a panic attack in the year preceding her deposition. (Thompson Dep. at 141:3-4).

         ANALYSIS

         Thompson claims Johnson and Redcross violated Fourth Amendment rights prohibiting unlawful entry, false arrest, and excessive force. Johnson and Redcross argue they deserve qualified immunity from Thompson's claims. As the following analyses portray, Johnson and Redcross merit qualified immunity on all claims.

         Qualified immunity protects government officials performing discretionary functions in their individual capacity from civil suit and liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Hill v. Cundiff, 797 F.3d 948, 978 (11^th Cir. 2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “When a court concludes [an official] was engaged in a discretionary function, “‛the burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity.'” Hill, 797 F.3d at 978 (citation omitted). There exists no dispute Johnson and Redcross performed discretionary functions in these circumstances, so Thompson bears the burden of persuasion on the balance of the qualified immunity inquiry: Johnson and Redcross violated a constitutional right, and the right was clearly established at the time of the alleged violation. Id. (citation omitted). Courts retain discretion to adjudicate one prong without addressing the other. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

         Determining whether a constitutional right was clearly established may proceed in three guises. A right may be clearly established by “(1) case law with indistinguishable facts clearly establishing the constitutional right; (2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes a constitutional right; or (3) conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law.” Hill, 797 F.3d at 979 (citation omitted). Under the second, afore-cited method, “every objectively reasonable government official facing the circumstances would know that the official's conduct did violate federal law when the official acted.” Id. (citation omitted). The “clearly established right must be defined with specificity.” City of Escondido, Cal. v. Emmons, No. 17-1660, 2019 WL 113027, at *2 (U.S. Jan. 7, 2019) (per curiam).

         Furthermore, a right is clearly established if a defendant acted on “fair warning” that his conduct violated the constitutional rights of the plaintiff. Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citing United States v. Lanier, 520 U.S. 259 (1997)). As elaborated, “fair warning” may emanate either from factually similar case law or where the right is one of ‘obvious clarity'- i.e., where the officer's conduct “lies so obviously at the very core of what the [constitutional provision] prohibits that the unlawfulness of the conduct was ...