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Fuqua v. Turner

United States District Court, N.D. Alabama, Northwestern Division

August 29, 2019

DOUGLAS FUQUA, Plaintiff,
v.
BRETT TURNER, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          LILES C. BURKE UNITED STATES DISTRICT JUDGE.

         Defendant Jimmy Collier (“Collier”) has filed a motion for summary judgment (doc. 67) in this action. Plaintiff Douglas Fuqua (“plaintiff”) has filed a response (doc. 70), which the Court ordered him to re-file (see doc. 73)[1] to comply with Appendix II of the Uniform Initial Order. Collier then filed a reply (doc. 74). Therefore, the motion for summary judgment is ready for review. For the reasons stated herein, the motion for summary judgment is granted.

         I. BACKGROUND

         Plaintiff initially filed this action against Bureau of Alcohol Tobacco, and Explosives (“ATF”) Agent Brett Turner (“Turner”), ATF Agent Adam Nesmith (“Nesmith”), Sheriff of Colbert County Frank Williamson (“Williamson”), and Collier in their individual and official capacities, alleging various claims pursuant to 42 U.S.C. § 1983 (“Section 1983”) and § 1985 (“Section 1985”) and Alabama law. In particular, plaintiff appears to allege, against all defendants, a claim for conspiracy to violate the Fourth and Fourteenth Amendments to the United States Constitution (Count I); a claim for unreasonable search in violation of the Fourth Amendment (Count II); a Section 1985 claim for conspiracy to deprive Fuqua of his equal protection rights (Count III); and state law claims for unlawful entry and search, false arrest, and false imprisonment (Count IV). (Doc. 1, pp. 6-10).

         Sheriff Williamson filed a motion to dismiss (doc. 7), which the Court granted (doc. 20). Therefore, Sheriff Williamson is no longer a party to this action. Collier also filed a motion to dismiss (doc. 16), which the Court granted (doc. 29). In particular, the Court dismissed all federal claims against Collier in his official capacity[2], and all claims against him in his individual capacity arising from a September 2015 inspection; the Court found that the individual capacity claims against Collier related to a November 2015 inspection would remain. (Id.). Nesmith and Turner also filed a motion to dismiss (doc. 40), which was granted (doc. 48). Thus, Nesmith and Turner are no longer parties to this action. Therefore, the only defendant remaining in this action is Collier.

         As an initial matter, the Court notes that plaintiff failed to correct the deficiencies in his response (doc. 70) pursuant to its order (doc. 71). Almost all of plaintiff's asserted facts are unsupported by any citation to record evidence. (See, e.g., Doc. 73, pp. 5-8). Furthermore, plaintiff's facts section is replete with conclusory statements and arguments also unsupported by any record evidence. The Court will take this into consideration when determining whether plaintiff has shown that a material fact is genuinely disputed. Fed.R.Civ.P. 56(3) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion . . . .”). The Court will also consider whether - when asserting a fact is genuinely disputed - plaintiff has supported his assertion by “citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c) (1) (“A party asserting a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . . .”).

         The Court also notes that Collier has submitted as evidence a report and recommendation addressing a motion to suppress filed in a 2016 criminal action against plaintiff; in that action, plaintiff was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Some of the events described in the report and recommendation are the subject of this civil action. It appears that Collier attempts to rely on the report and recommendation as a source of facts. Even though plaintiff has not filed a motion to strike the report and recommendation, the Court declines to consider as facts the findings in same. For one, the report and recommendation is simply that - a recommendation. Furthermore, the facts in the report and recommendation are not supported by citations to any evidence, much less evidence of record in this action. Cf. Dudley v. City of Monroeville, Ala., 446 Fed.Appx. 204, 207 (11th Cir. 2011) (unpublished opinion) (“Unsworn statements do not meet the requirements of Rule 56, so the district court could not-and properly did not-rely on the content of the citizen's statement.”). The Court will, however, consider the only other evidence supporting the summary judgment filings in this action: the testimony under oath from Collier and Williamson at the hearing on the motion to suppress in the criminal action against plaintiff regarding events of which they had personal knowledge.[3] See Fed. R. Civ. P. 56(c)(4) (stating that an affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated); Vondriska v. Cugno, 368 Fed.Appx. 7, 8-9 (11th Cir. 2010) (unpublished opinion) (“In order to support a motion for summary judgment under Rule 56(e), testimony must be sworn, competent and on personal knowledge, and set out facts that would be admissible in evidence at trial.”).

         “The Pig” is a structure located at 625 Jarmon Lane in Leighton, Alabama. (Doc. 67-3, pp. 3-4). The Pig has been described as an unlicensed nightclub and gathering place; plaintiff also resided there. (Doc. 67-2, pp. 6-7, 9). Alcohol was also served at the Pig. (Id. at 15). Collier is a deputy state fire marshal employed by the State of Alabama Department of Insurance Office. (Id. at 2). Collier has held that position since February 2005. (Id.). Deputy state fire marshals “have full, general powers of peace officers” in Alabama. Ala. Code § 36-19-1. Part of Collier's duties as a deputy state fire marshal include fire origin and cause determination, termination of origin cause and of explosions, code inspection, and code enforcement, among other things. (Id. at 3-4). With respect to code inspections, there are certain structures that require annual inspections while others are inspected upon complaint. (Id. at 5). Collier receives complaints in a variety of ways, including by e-mail, phone call, or text message. (Id. at 6).

         Although the Court has dismissed all claims arising out of the September 16, 2015, inspection and search of the Pig, the Court briefly recounts events occurring on that day to give the summary judgment facts context. On September 16, 2015, Collier received a phone call regarding the Pig from Williamson. (Doc. 67-2, pp. 6-7). Williamson has been sheriff of Colbert County since January 2015. (Doc. 67-3, p. 3). Williamson testified that there has been trouble with the Pig since he has been in law enforcement, including drug deals, alcohol sales, and illegal alcohol sales. (Id. at 4). Williamson testified that he has received complaints about the Pig at least once a week since he has been sheriff. (Id.). Those complaints were for things like people parking in the road and blocking it, noise, loud music, people yelling, screaming, fighting, and shooting guns. (Id.). Williamson shared concerns with Collier about overcrowding and large gatherings at the Pig. (Doc. 67-2, pp. 8-9, 53). Collier suggested that he perform a fire marshal inspection to see if the complaint was founded. (Id. at 9-10). It was Collier's understanding that the Pig was an unlicensed club. (Id. at 9).

         Collier had safety concerns about conducting an inspection at the Pig alone due to prior complaints about it. (Id. at 11). Therefore, Collier requested that Williamson send someone to accompany him. (Id. at 55-56; Do c . 67 -3, pp. 15-16). Ultimately, Williamson and other deputy sheriffs accompanied Collier to the inspection. (Id. at 11). Collier cannot recall whether Williamson told him that plaintiff had been arrested earlier that day by a deputy sheriff that was also present at the inspection. (Id. at 10, 54-55). Williamson testified that, at the time of the inspection, he did not know that the deputy present at the inspection had arrested plaintiff earlier in the day. (Doc. 67-3, p. 16). Collier testified that the Alabama Code permits him to request additional personnel to be present. (Id.).

         Collier went to the Pig to conduct his inspection; however, plaintiff was not there when Collier arrived. (Doc. 67-2, p. 12). Collier spoke to a man who was present at the Pig. (Id.). That man called plaintiff, and plaintiff came to the Pig. (Id.). When plaintiff arrived, Collier told plaintiff that he had been asked to do an inspection of the business and requested that plaintiff accompany him through the building. (Id.). Plaintiff complied. (Id.). Collier found approximately nineteen to twenty code violations at the Pig. (Id. at 24-27, 32-33). During his inspection, Collier observed a shotgun in the kitchen. (Id.). Collier also observed a shotgun in plaintiff's bedroom. (Id. at 28, 110). Following the inspection, Collier entered the information into his inspection program, CodePal. (Id. at 34). Once Collier enters information into the system, it generates a report that includes a date for a follow-up inspection or re-inspection. (Id. at 35-36). Collier testified that follow-up inspections should occur thirty to forty-five days later. (Id. at 36).

         Collier conducted a follow-up inspection of the Pig on October 21, 2015. (Doc. 67-2, p. 37-38). Collier called plaintiff, and plaintiff met Collier at the Pig and let him in. (Id. at 81). Collier did not request any law enforcement personnel escort him because he no longer had any safety concerns. (Id. at 37). Some of the code violations had been corrected, but some had not. (Id. at 37-39). The report created by Collier in conjunction with this visit generated a follow-up inspection for November 17, 2015. (Id. at 39).

         On or about November 3, 2015, Collier attended a meeting at the Colbert County Courthouse. (Doc. 67-2, pp. 39-40). Various agencies, including ATF, the local drug task force, and the State Bureau of Investigation, had representatives at the meeting; the police chiefs for Muscle Shoals and Tuscumbia and the Colbert County district attorney were also there. (Doc. 67-3, pp. 23-24). The meeting was convened to talk about the problems at the Pig and what could legally be done about them. (Id.; Do c. 67-2, pp. 39-40). Collier informed the group that he had a re-inspection that was scheduled to be performed in the next thirty days. (Id. at 40). During the meeting, Collier and at least Nesmith discussed conducting the re-inspection on November 16, 2015, because Collier was available that day and Nesmith was not available on November 17, 2015. (Id. at 40, 97). Collier testified that the inspection was scheduled for November 16, 2015, to accommodate law enforcement. (Id. at 97). During the meeting, Collier stated that he had observed firearms at the Pig. (Id. at 42). No. one at the meeting instructed Collier to open closets or look under beds and mattresses for firearms or otherwise told him how to conduct his inspection. (Id.; Do c . 67 -3, p. 24). Collier was to contact Nesmith, however, if he observed any firearms during his re-inspection of the Pig on November 16, 2015. (Doc. 67-2, p. 42).

         On November 16, 2015, Collier performed a re-inspection of the Pig. (Doc. 67-2, pp. 46-47). No. law enforcement officers were with Collier during this visit. (Id.). Plaintiff was not present when Collier arrived at the Pig on November 16, 2015, so Collier called plaintiff and asked plaintiff to meet him at the Pig. (Id. at 47, 82). Collier waited until plaintiff arrived. (Id.). When plaintiff arrived, Collier performed another inspection of the Pig. Plaintiff asserts, without pointing to any evidence, that Collier entered the Pig without valid consent (doc. 73, p. 13); however, there is nothing in the record regarding what transpired when Collier entered the Pig and what exactly was said between Collier and plaintiff as Collier entered the Pig. Collier, however, testified that with all his inspections he asks the owner to accompany him. (Id. at 109-10). Furthermore, Collier's testimony indicates that plaintiff accompanied him during the inspection. (Id. at 82). There is no evidence that plaintiff objected to the inspection. Collier did not have a search warrant.

         Collier testified that he conducted a general fire marshal inspection like he had done in the past. (Id. at 97). During the inspection, Collier observed a shotgun in plaintiff's bedroom and a shotgun in the kitchen area. (Id. at 43, 100). Collier testified that he told plaintiff to open the door to his “residence, ” which the Court interprets as plaintiff's bedroom located inside the Pig, and plaintiff complied. (Id. at 97).[4] Collier testified that he had searched plaintiff's bedroom on an earlier occasion to inspect for extreme hazards similar to the storing of a liquid propane gas cylinder and deep fryer that he had discovered in another inner room of the Pig. (Id. at 27). Collier sent Nesmith a text message informing him that firearms were present. (Id.). Collier photographed the firearms. (Id. at 97, 100). Collier also observed code violations. (Id. at 43-46). Collier testified that he did not expand the scope of his inspection to help law enforcement conduct a criminal investigation. (Id. at 105).

         It appears that Nesmith obtained a search warrant for the Pig based, at least in part, on Collier's observations of the firearms inside of the Pig. (Doc. 67, p. 3 (fact undisputed by plaintiff)). The search warrant was executed, and three firearms and ammunition were recovered from the Pig. (Id.). It also appears undisputed that plaintiff was arrested at some point after the search warrant was executed for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See United States v. Fuqua, 3:16-cr-83-VEH-TMP (N.D. Ala.), Indictment (Doc. 1); (Doc. 67, p. 3) (fact undisputed by plaintiff)).[5] There is no evidence that Collier was involved in the execution of the search warrant or arrest of plaintiff following same.

         II. STANDARD OF REVIEW

         “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). To demonstrate that there is a genuine dispute as to a material fact that precludes summary judgment, a party opposing a motion for summary judgment must cite “to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A).

         When considering a summary judgment motion, the Court must view the evidence in the record in the light most favorable to the non-moving party and draw reasonable inferences in favor of the non-moving party. White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015). “[A]t the summary judgment stage[, ] the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “‘Genuine disputes [of material fact] are those in which the evidence is such that a reasonable jury could return a verdict for the non-movant. For factual issues to be considered genuine, they must have a real basis in the record.'” Evans v. Books-A-Million, 762 F.3d 1288, 1294 (11th Cir. 2014) (quoting Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)). Even if the Court doubts the veracity of the evidence, the Court cannot make credibility determinations of the evidence. Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (citing Anderson, 477 U.S. at 255). However, conclusory statements in a declaration cannot by themselves create a genuine issue of material fact. See United States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018) (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)).

         In sum, the standard for granting summary judgment mirrors the standard for a directed verdict. Anderson, 477 U.S. at 250 (citing Brady v. Southern R. Co., 320 U.S. 476, 479-480 (1943)). The district court may grant summary judgment when, “under governing law, there can be but one reasonable conclusion as to the verdict.” Id. at 250. “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party . . . . If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50 (internal citations omitted).

         III. DISCUSSION

         Collier moves for summary judgment on all counts in the complaint. Collier argues that he is entitled to qualified immunity from the federal claims against him. Collier also asserts that he is entitled to state immunity and state agent / peace officer immunity from the state-law claims. The Court will address each argument in turn.

         A. ...


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