United States District Court, N.D. Alabama, Northwestern Division
MEMORANDUM OPINION AND ORDER
C. BURKE UNITED STATES DISTRICT JUDGE.
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) 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.
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).
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, 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.
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 . . . .”).
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. 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.”).
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).
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).
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.).
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).
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).
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.
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
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). 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).
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)). There is no evidence that Collier was
involved in the execution of the search warrant or arrest of
plaintiff following same.
STANDARD OF REVIEW
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.”
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)).
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
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.