from Jefferson Circuit Court (CV-17-901042)
McDonald appeals from a judgment entered against her, and in
favor of Robert Keahey and Foster Wrecker Service, Inc.
("Foster"), by the Jefferson Circuit Court
("the trial court"). For the following reasons, we
affirm in part, reverse in part, and remand.
and Procedural History
basic facts of this case are undisputed. In late 2016,
McDonald, a resident of the City of Center Point
("Center Point"), had two inoperable vehicles
parked in the driveway of her home. McDonald's driveway runs
alongside the front lawn of the home, and dips down below the
front elevation of the house to a parking area next to the
home. Both vehicles were parked at the bottom of
McDonald's driveway and next to her house. The driveway
was not fenced or gated, but the area where the vehicles were
located was bounded on two sides by the home and a retaining
November 9, 2016, Keith Evans, the code-enforcement manager
for Center Point, entered McDonald's property to inspect
the vehicles, which he claimed he had seen on a previous
patrol, and to determine whether they violated Center Point
municipal ordinance § 44-66. That ordinance prohibits a
property owner from parking "junked, abandoned or
nonoperational motor vehicles" on private property if
they are readily visible from a public place or surrounding
private property. The ordinance provides, in part:
"No person in charge of or in control of any premises,
whether as owner, lessee, tenant, occupant, or otherwise
shall allow any partially dismantled, wrecked, junked,
discarded or otherwise non-operable motor vehicles, of any
kind or type, to remain on such property longer than seven
days after being cited by a city official or his designated
representative and the responsible person notified to act in
such a way as to solve the problem to the satisfaction of the
ordinance defines "nonoperable" as "being
unable to be legally operated on public streets and roadways,
such as having flat tires, jacked up or resting on stands,
boxes, barrels, with pieces and/or parts missing, including
expired license tag and/or decals."
McDonald was not at home at the time of Evans's
inspection, her ex-husband, Byron Steele, was present. Steele
ordered Evans to leave the property. Evans then called
Keahey, a Jefferson County sheriff's deputy assigned to
the Center Point area, and reported that Steele was
interfering with his attempt to inspect the vehicles. Keahey
traveled to McDonald's home and met with
Steele. Ultimately, Evans completed the inspection
of the vehicles and issued a "notice of violation(s) and
order to correct violation(s)," which notice he left at
McDonald's home. The notice described the violation and
stated that the vehicles were to be "removed
immediately." The notice further provided that
"[i]f you fail to correct this violation, [Center Point]
may elect to correct the violation itself."
December 2, 2016, Keahey returned to McDonald's house.
Upon finding that the two inoperable vehicles remained in
McDonald's driveway, he telephoned Foster, a towing
company under contract to provide towing services to Center
Point, and requested that that company remove the vehicles.
Foster towed the vehicles to its facility. Keahey provided
McDonald with a card containing Foster's contact
information and instructed her to contact Foster regarding
her vehicles. After Foster determined that the redemption
date for McDonald to reclaim the vehicles had expired, it
sold the vehicles.
March 14, 2017, McDonald commenced this action against Center
Point, Foster, and Keahey ("the
defendants").McDonald asserted various state-law tort
claims against the defendants, including claims of
conversion, negligence, and detinue. Further, she sought
injunctive relief prohibiting the sale or disposal of one of
the vehicles, which vehicle, she alleged, was still in
Foster's possession. Finally, she asserted a count under
the provisions of § 32-13-4, Ala. Code 1975, contesting
the sale of her vehicles. In addition to injunctive relief,
McDonald sought an award of compensatory damages in the
amount of $100, 000 and an award of punitive damages in the
amount of $300, 000.
the defendants separately moved to dismiss McDonald's
claims. Keahey argued that, because he was a deputy sheriff,
all the claims against him were due to be dismissed under the
doctrine of State-agent immunity. Center Point moved to
dismiss the claims against it on the basis that the claims
for injunctive relief were moot or, alternatively, did not
comply with Rule 65, Ala. R. Civ. P.; that it was immune from
liability for intentional torts; that it could not be liable
for the acts of Keahey or Foster; that § 32-13-4 was not
applicable; and that, because it did not have possession of
the vehicles, detinue was not a legally cognizable claim
against it. Foster filed a motion to dismiss arguing that it
had no liability to McDonald because it had been merely
acting on the instruction of Keahey pursuant to its agreement
with Center Point and because, it claimed, it had complied
with all applicable notice requirements with regard to the
towing and sale of the vehicles.
September 15, 2017, McDonald filed her first amended
complaint, adding two civil-rights claims against the
defendants pursuant to 42 U.S.C. § 1983. McDonald
alleged that the defendants, while acting under color of
state law, had violated her rights under the Fourth and
Fourteenth Amendments to the United States Constitution.
Keahey and Foster moved to dismiss the amended complaint,
contending that they were protected from the § 1983
claims by the doctrine of qualified immunity. Foster also
claimed it was entitled to absolute quasi-judicial immunity.
Center Point contended that the claims against it were due to
be dismissed because McDonald could not establish a claim of
municipal liability under § 1983. McDonald subsequently
filed a second amended complaint that added a trespass claim
against the defendants.
October 16, 2017, the trial court issued orders dismissing
all the claims asserted against the defendants in
McDonald's original complaint. On April 16, 2018, the
trial court issued an order dismissing all of McDonald's
remaining state-law claims against Keahey and Foster but
denying Keahey's and Foster's motions to dismiss the
§ 1983 claims. As to those claims, the trial court
determined that additional discovery was necessary, and it
ordered that the parties would be permitted to conduct
limited discovery "narrowly tailored to addressing the
question of when notice was issued to [McDonald] regarding
the automobiles made the subject of this case." Also on
April 16, 2018, the trial court dismissed all pending claims
against Center Point, and it amended that order on April 19,
2018, to certify the judgment in favor of Center Point as a
final judgment pursuant to Rule 54(b), Ala. R. Civ. P.
20, 2018, Keahey and Foster each filed separate
summary-judgment motions directed to the § 1983 claims.
Both of those defendants contended that McDonald's claims
were barred by the doctrine of qualified immunity and that
McDonald had not established any constitutional violations
sufficient to support her § 1983 claims. The motions
were supported by affidavits and other attached evidentiary
submissions. McDonald responded to the summary-judgment
motions, likewise submitting affidavits and other documentary
evidence in opposition to the motions. On October 17, 2018,
the trial court granted Keahey's and Foster's
summary-judgment motions and entered a final judgment
disposing of all of McDonald's claims. McDonald appealed
the judgment to the Alabama Supreme Court, which transferred
the appeal to this court pursuant to § 12-2-7(6), Ala.
Code 1975. This court dismissed the appeal as it pertained to
the judgment entered in favor of Center Point because the
appeal of that judgment was undisputedly
principal brief, McDonald challenges only the propriety of
the summary judgment as it relates to the § 1983 claims
against Keahey and Foster; she does not discuss the
dismissals of the state-law claims or controvert any of the
various theories Foster and Keahey had asserted in support of
their contention that the state-law claims against them were
due to be dismissed. Consequently, any argument that the
trial court erred in dismissing the state-law claims has been
waived on appeal. Surginer v. Roberts, 231 So.3d
1117, 1127 (Ala. Civ. App. 2017) (quoting Gary v.
Crouch, 923 So.2d 1130, 1136 (Ala. Civ. App. 2005))
("'[T]his court is confined in its review to
addressing the arguments raised by the parties in their
briefs on appeal; arguments not raised by the parties are
waived.'"); Soutullo v. Mobile Cty., 58
So.3d 733, 739 (Ala. 2010) ("[T]he failure of the
appellant to discuss in the opening brief an issue on which
the trial court might have relied as a basis for its
judgment results in an affirmance of that
judgment."). Therefore, our review in this case is
limited to the correctness of the summary judgment in favor
of Keheay and Foster on McDonald's § 1983 claims.
"'Summary judgment is appropriate only when
"there is no genuine issue as to any material fact and
... the moving party is entitled to a judgment as a matter of
law." Rule 56(c)(3), Ala. R. Civ. P., Young v. La
Quinta Inns, Inc., 682 So.2d 402 (Ala. 1996). A court
considering a motion for summary judgment will view the
record in the light most favorable to the nonmoving party,
Hurst v. Alabama Power Co., 675 So.2d 397 (Ala.
1996), Fuqua v. Ingersoll-Rand Co., 591 So.2d 486
(Ala. 1991); will accord the nonmoving party all reasonable
favorable inferences from the evidence, Fuqua,
supra, Aldridge v. Valley Steel Constr.,
Inc., 603 So.2d 981 (Ala. 1992); and will resolve all
reasonable doubts against the moving party, Hurst,
supra, Ex parte Brislin, 719 So.2d 185
"'An appellate court reviewing a ruling on a motion
for summary judgment will, de novo, apply these same
standards applicable in the trial court. Fuqua,
supra, Brislin, supra. Likewise,
the appellate court will consider only that factual material
available of record to the trial court for its consideration
in deciding the motion. Dynasty Corp. v. Alpha Resins
Corp., 577 So.2d 1278 (Ala. 1991), Boland v. Fort
Rucker Nat'l Bank, 599 So.2d 595 (Ala. 1992),
Rowe v. Isbell, 599 So.2d 35 (Ala. 1992).'"
Ex parte Turner, 840 So.2d 132, 135 (Ala. 2002)
(quoting Ex parte Rizk, 791 So.2d 911,
912-13 (Ala. 2000)). Furthermore, an appellate court will
"'review the validity of a qualified immunity
defense de novo.'" Ex parte
Hugine, 256 So.3d 30, 45 (Ala. 2017) (quoting
Volkman v. Ryker, 736 F.3d 1084, 1089 (7th Cir.
2013), citing in turn Elder v. Holloway, 510 U.S.
510, 516 (1994)).
order to be entitled to relief under § 1983, McDonald
must demonstrate that the actions of Keahey and Foster (1)
occurred "under color of state law" and (2)
resulted in the deprivation of a constitutional or federal
statutory right. In this case, McDonald asserts that Keahey
and Foster were acting under the color of state law when they
removed her vehicles from her driveway and that the seizure
and sale of her vehicles constituted an unreasonable
seizure in violation of the Fourth Amendment and
also violated her due-process rights guaranteed by the
Fourteenth Amendment. Keahey and Foster deny that McDonald
was deprived of any constitutional right and further contend
that they are immune from McDonald's § 1983 claims.
We discuss each issue, in turn.
Color of State Law"
the color-of-state-law prong, we may safely conclude that
Keahey -- a deputy sheriff assigned to provide
law-enforcement services to Center Point -- was
unquestionably operating under color of state law. Foster, on
the other hand, is a private towing company. Nevertheless,
McDonald has alleged that Foster was acting under color of
of an ostensibly private organization or individual are,
under certain circumstances, treated as state action. The
United States Supreme Court has stated that "state
action may be found if, though only if, there is such a
'close nexus between the State and the challenged
action' that seemingly private behavior 'may be
fairly treated as that of the State itself.'"
Brentwood Acad. v. Tennessee Secondary Sch. Athletic
Ass'n, 531 U.S. 288, 295 (2001) (quoting Jackson
v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)).
In order to prove that a private party working for the
government is a state actor, a plaintiff must demonstrate
"pervasive entwinement" between the two entities
surpassing that of a mere contractual relationship.
McCarthy v. Middle Tennessee Elec. Membership Corp.,
466 F.3d 399, 412 (6th Cir. 2006) (noting that "the
existence of a contract alone does not rise to the level of
'pervasive entwinement'"). The question of
"pervasive entwinement" is a "'necessarily
fact-bound inquiry.'" Brentwood Acad., 531
U.S. at 298 (quoting Lugar v. Edmondson Oil Co., 457
U.S. 922, 939 (1982)).
recognize that there are opinions from various federal courts
holding that a private towing company does not act under
color of state law. See, e.g., Partin v.
Davis, 675 Fed.Appx. 575, 586-87 (6th Cir. 2017) (not
reported in Federal Reporter); Carmen Auto Sales
III, Inc. v. City of Detroit, No. 16-12980, March 15,
2018 (E.D. Mich. 2018)(not reported in Federal
Supplement); but see Smith v. Insley's
Inc., 499 F.3d 875, 880 (8th Cir. 2007). Foster,
however, has at no time asserted that it is not a
state actor,  and, although this court may affirm a
summary judgment for any legitimate reason supported by the
record, Evans v. Waldrop, 220 So.3d 1066, 1073 (Ala.
Civ. App. 2016), the facts as contained in the record on
appeal in this case are not sufficiently developed to permit
analysis as to whether there was a "pervasive
entwinement" between Foster and the undisputed state
actors. Accordingly, we view the question whether Foster was
acting under color of state law when it towed and later
disposed of McDonald's vehicles as an unresolved issue of
fact and, thus, as not a proper basis to affirm the judgment
entered in favor of Foster.
of a Constitutional Right
prevail on her § 1983 claims, McDonald must also show
that the claimed state action resulted in the deprivation of
a constitutional or federal statutory right. To that end,
McDonald asserts that Keahey's and Foster's actions
in removing the two vehicles from her property and the
subsequent disposal of those vehicles violated her right to
be free from unreasonable seizures as guaranteed by the
Fourth Amendment and her right to procedural due process as
guaranteed by the Fourteenth Amendment. We discuss each
claimed right, in turn.
Fourth Amendment provides:
"The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place ...