Hails v. Dennis

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DANIEL WADE HAILS, )

Plaintiff, )

)

v. ) CIVIL ACTION NO. 17-259-KD-N

)

TIMOTHY TRENT DENNIS, et al., )

Defendants. )

REPORT AND RECOMMENDATION

This matter is before the Court on the Motion to Dismiss filed by Defendants

Timothy Trent Dennis and Kimberly D. Wasdin1 (Doc. 32-33), pro se Plaintiff Daniel

Hails’ (“Plaintiff”) Response (Doc. 46), and Defendants Officer Dennis and Chief

Wasdin’s Reply. (Doc. 48), and Defendants Michael Shawn Gaull, Lonny Shane

McKinney, David Austin Jones, Matthew Warner Morrison, Robert S. Correa, Donnie

Ray Payne, Michael Wayne Walker, Robert Gregory Lindell, Andre Lawrence Reid,

and Nathanial Douglas Lamplugh’s Motion to Dismiss2 (Doc. 29-30), Plaintiff’s

Response (Doc. 36), and Defendants’ Reply (Doc. 41). These motions have been

referred to the undersigned United States Magistrate Judge for report and

recommendation pursuant to 28 U.S.C. § 636(b) and S.D. Ala. GenLR 72(b). Upon

consideration, and for the reasons stated herein, the undersigned RECOMMENDS

that Defendants Gaull, McKinney, Jones, Morrison, Correa, Payne, Walker, Lindell,

Reid, and Lamplugh’s Motion to Dismiss (Docs. 29, 32) be GRANTED and that all

1 Defendants Dennis and Wasdin will be referred to as Officer Dennis, Chief Wasdin, or as the

Silverhill defendants.

2 Defendants Gaull, McKinney, Jones, Morrison, Correa, Payne, Walker, Lindell, Reid, and Lamplugh

will be referred to by last name or as the Baldwin County Sheriff’s Office (BCSO) Defendants.

claims against these Defendants be DISMISSED. The undersigned further

RECOMMENDS that the Motion to Dismiss filed by Defendant Chief Wasdin be

GRANTED, and that all claims against her be DISMISSED. (Docs. 32-33). The

undersigned RECOMMENDS that the Motion to Dismiss filed by Defendant Officer

Dennis be DENIED, and that Plaintiff be permitted an opportunity to amend his

complaint as to his claims against Defendant Officer Dennis. (Docs. 32-33).

BACKGROUND

Plaintiff’s Amended Complaint3 (Doc. 23) raises a number of 42 U.S.C. § 1983

claims against thirteen defendants, including Officer Dennis and Chief Wasdin, who

are officers from the Silverhill, Alabama Police Department, ten deputies from the

Baldwin County, Alabama Police Department (Gaull, McKinney, Jones, Morrison,

Correa, Payne, Walker, Lindell, Reid, and Lamplugh), and Baldwin County, Alabama

Sheriff Huey Mack. All Defendants have moved to dismiss Plaintiff’s claims (See

Docs. 27, 29, and 32). This Report and Recommendation addresses only the claims

against the Silverhill and BCSO defendants. (Doc. 27). The Claims against Sheriff

Huey Mack will be addressed by a separate Report and Recommendation.

The Amended Complaint provides minimal detail with regard to the counts

alleged, but raises claims of false arrest, false imprisonment, and malicious

prosecution against Officer Dennis and Chief Wasdin, who are members of the City

of Silverhill Police Department. (Doc. 23 at 8). As best the Court can determine from

the contents of the Amended Complaint, Plaintiff alleges that on June 9, 2015, Officer

3 The Court ordered Plaintiff to file an amended complaint pursuant to a motion for more definitive

statement. (Docs. 6-7).

Dennis responded to a call for emergency assistance that led him to Plaintiff’s home,

and Officer Dennis was the first officer to arrive on scene. According to Officer Dennis’

statements, which Plaintiff contends are false, Officer Dennis observed Plaintiff on

his front porch. Officer Dennis climbed onto Plaintiff’s fence, identified himself as a

police officer, and informed Plaintiff that he needed to speak with him. Plaintiff then

waved at Officer Dennis, produced a rifle, and fired a shot at Officer Dennis.

After the weapon was discharged, it appears that the Officer Dennis or

someone within the Silverhill Police Department called the sheriff’s office to request

assistance at Plaintiff’s home. Soon after, members of the Baldwin County Sheriff’s

Department SWAT4 team and/or deputies (the BCSO Defendants) arrived at the

home and breached the gate.5 Plaintiff was taken into custody at the scene. Later

that day, a state court judge issued a warrant for Plaintiff’s arrest for attempted

murder. According to the BCSO Defendants’ brief, “On October 11, 2016, the Circuit

Court of Baldwin County, Alabama issued an order dismissing Plaintiff’s criminal

proceeding for want of prosecution due to the State’s witness failing to appear.” (Doc.

30 at 4).

Plaintiff contends that all of Officer Dennis’ statements are false, but provides

no alternative version of events. Plaintiff claims that as a result of these false

statements he was falsely arrested, falsely imprisoned, and maliciously prosecuted

by the Silverhill and BSCO Defendants.

4 SWAT is an acronym for Special Weapons and Tactics.

5 From the briefing, it appears there was a “stand off” situation but this is unclear based on the

contents of the Amended Complaint.

The majority of the Amended Complaint quotes statements from police reports,

and claims they are false. There are no allegations indicating what Plaintiff claims

actually did happen. Rather, Plaintiff contends that all of Officer Dennis’ statements

about the events that took place at Plaintiff’s home on June 9, 2015 are false.

Additionally, Plaintiff claims that the BCSO Defendants and Chief Wasdin should

have engaged in “due diligence” by verifying the claims made by the Officer Dennis

before taking any action at Plaintiff’s home.

STANDARD OF REVIEW

In deciding a motion to dismiss under Rule 12(b)(6) for “failure to state a claim

upon which relief can be granted,” the Court must construe the complaint in the light

most favorable to the Plaintiff, “accepting all well-pleaded facts that are alleged

therein to be true.” E.g., Miyahira v. Vitacost.com, Inc., 715 F.3d 1257, 1265 (11th

Cir. 2013). “Fed. R. Civ. P. 8(a)(2) requires that a pleading contain ‘a short and plain

statement of the claim showing that the pleader is entitled to relief’ in order to give

the defendant fair notice of what the claim is and the grounds upon which it rests.”

Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010) (quotation

omitted). “ ‘While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not

need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.’ “ Id. at 1289 (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929

(2007)). A complaint’s “ ‘[f]actual allegations must be enough to raise a right to relief

above the speculative level ... on the assumption that all the allegations in the

complaint are true (even if doubtful in fact).’ “ Id. (quoting Twombly, 550 U.S. at

555). “[T]o survive a motion to dismiss, a complaint must now contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’

“ Id. (quoting Twombly, 550 U.S. at 570). While this “plausibility standard is not

akin to a ‘probability requirement’ at the pleading stage, … the standard ‘calls for

enough fact to raise a reasonable expectation that discovery will reveal evidence’ of

the claim.” Id. (quoting Twombly, 550 U.S. at 556).

Moreover, “ ‘the tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions.’ “ Id. at 1290 (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Under the plausibility standard, “ ‘where

the well-pleaded facts do not permit the court to infer more than the mere possibility

of misconduct, the complaint has alleged—but it has not “show [n]”—”that the pleader

is entitled to relief.” ‘ “ Id. (quoting Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P.

8(a)(2))). Iqbal “suggested that courts considering motions to dismiss adopt a ‘two-

pronged approach’ in applying these principles: 1) eliminate any allegations in the

complaint that are merely legal conclusions; and 2) where there are well-pleaded

factual allegations, ‘assume their veracity and then determine whether they plausibly

give rise to an entitlement to relief.’ “ Id. (quoting Iqbal, 556 U.S. at 679).

“Importantly, … courts may infer from the factual allegations in the complaint

‘obvious alternative explanation[s],’ which suggest lawful conduct rather than the

unlawful conduct the plaintiff would ask the court to infer.” Id. (quoting Iqbal, 556

U.S. at 679 (quoting Twombly, 550 U.S. at 567)).

“[G]enerally, the existence of an affirmative defense will not support a rule

12(b)(6) motion to dismiss for failure to state a claim. A district court, however, may

dismiss a complaint on a rule 12(b)(6) motion when its own allegations indicate the

existence of an affirmative defense, so long as the defense clearly appears on the face

of the complaint.” Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir. 1993) (quotation

omitted)).

“A document filed pro se is to be liberally construed, and a pro se complaint,

however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

curiam) ((citation and quotations omitted)). “Yet even in the case of pro se litigants

this leniency does not give a court license to serve as de facto counsel for a party, or

to rewrite an otherwise deficient pleading in order to sustain an action.” Campbell v.

Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir. 2014) (quotation omitted).

ANALYSIS

A. Capacity in Which Defendants are Being Sued

The Amended Complaint fails to specify whether suit is being brought against

Defendants in their official or individual capacities. As the Court of Appeals for the

Eleventh Circuit has observed:

The main concern of a court in determining whether a plaintiff is suing

defendants in their official or individual capacity is to ensure the

defendants in question receive sufficient notice with respect to the

capacity in which they are being sued. In general, plaintiffs have a duty

to make plain who they are suing and to do so well before trial. However,

plaintiffs are not required to designate with specific words in the

pleadings that they are bringing a claim against defendants in their

individual or official capacities, or both. When it is not clear in which

capacity the defendants are sued, the course of proceedings typically

indicates the nature of the liability sought to be imposed. Thus, while it

is clearly preferable that a plaintiff state explicitly in what capacity

defendants are being sued, failure to do so is not fatal if the course of

proceedings otherwise indicates that the defendant received sufficient

notice.

Young Apartments, Inc. v. Town of Jupiter, FL, 529 F.3d 1027, 1047 (11th Cir.

2008)(internal citations and quotations omitted). Upon review of the Amended

Complaint, the Court concludes that Plaintiff is suing Defendants only in their

individual capacities. First, “[i]n a § 1983 action, punitive damages are only available

from government officials when they are sued in their individual capacities.” Young,

529 F. 3d at 1047 (internal citations omitted). Though Plaintiff has identified

Defendants by their official titles, in the “Relief” section of the Amended Complaint,

Plaintiff demands punitive damages from each Defendant, indicating that he is suing

them in their individual capacities. Second, all Defendants have argued that they are

entitled to qualified immunity. In a § 1983 action, “[i]t is well-settled that qualified

immunity only protects public officials from lawsuits brought against them in their

individual capacity.” Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1184 n. 16

(11th Cir.1994). This defense is evidence that the Defendants believe they were being

sued in their individual capacities. See Tapley v. Collins, 211 F.3d 1210, 1211 n. 2

(11th Cir. 2000) (treating suit as against defendants in their individual capacities

where the complaint was silent but the parties briefed the issue of qualified

immunity).

B. Qualified Immunity

All Defendants have raised the defense of qualified immunity. In Harlow v.

Fitzgerald, the Supreme Court held that “government officials performing

discretionary functions generally are shielded from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” 457 U.S. 800, 818 (1982). Later, in

Mitchell v. Forsyth the Supreme Court reiterated that “[u]nless the plaintiff’s

allegations state a claim of violation of clearly established law, a defendant pleading

qualified immunity is entitled to dismissal before the commencement of discovery.”

472 U.S. 511, 526 (1985), citing Harlow, supra, 457 U.S. at 818; see also Gonzalez v.

Reno, 325 F.3d 1228, 1233 (11th Cir. 2003) (“It is [ ] appropriate for a district court to

grant the defense of qualified immunity at the motion to dismiss stage if the

complaint ‘fails to allege the violation of a clearly established constitutional right.’ “).

It is undisputed that the Defendants, all law enforcement officers responding to a call

for assistance, were at all times relevant hereto, acting within their discretionary

authority.

The United States Supreme Court “has repeatedly stressed the importance of

resolving qualified immunity questions at the earliest possible stage in litigation.”

Bloom v. Alvereze, 498 F. App’x. 867, 878 (11th Cir. 2012) (citing Pearson v. Callahan,

555 U.S. 223, 232 (2009)).6 While qualified immunity is typically addressed at

6 The Court recognizes that, according to the Rules of the United State Court of Appeals for the

Eleventh Circuit, “[u]npublished opinions are not considered binding precedent, but they may be cited

as persuasive authority.” 11th Cir. R. 36-2.

summary judgment, it may be raised on a motion to dismiss and granted if the

plaintiff’s complaint fails to allege the violation of a clearly established constitutional

right. St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir. 2002); Marsh v.

Butler Cty., 268 F.3d 1014, 1023 (11th Cir. 2001) (en banc) (“We apply the qualified

immunity defense to dismiss a complaint at the 12(b)(6) stage where, (1) from the face

of the complaint, (2) we must conclude that (even if a claim is otherwise sufficiently

stated), (3) the law supporting the existence of that claim—given the alleged

circumstances—was not already clearly established, (4) to prohibit what the

government-official defendant is alleged to have done, (5) before the defendant

acted.”). “At the motion to dismiss stage in the litigation, the qualified immunity

inquiry and the Rule 12(b)(6) standard become intertwined. Whether a particular

complaint sufficiently alleges a clearly established violation of law cannot be decided

in isolation from the facts pleaded.” Keating v. City of Miami, 598 F.3d 753, 760 (11th

Cir. 2010)(internal quotations omitted)(citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)

and GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1366 (11th Cir.1998).

The Supreme Court has mandated a two-step analysis for resolving qualified

immunity claims. Saucier v. Katz, 533 U.S. 194, 201 (2001). First, a court must decide

whether the facts that a plaintiff has alleged “show the [defendant’s] conduct violated a

constitutional right.” Id. Second, the court must decide “whether the right was clearly

established.” Id. The lower courts have discretion whether to address first the existence

of a constitutional violation or the clearly established nature of the right allegedly

violated. Pearson v. Callahan, 555 U.S. 223, 236 (2009); accord Reichle v. Howards, 132

S. Ct. 2088, 2093 (2012).

C. Claims Against the Defendants

The undersigned first addresses the claims against the BCSO Defendants,

recommending that the BCSO Defendants’ motion to dismiss be GRANTED as these

Defendants are entitled to qualified immunity and all claims against them are due to

be dismissed. Next, the undersigned recommends that the motion to dismiss filed on

behalf of the Silverhill Defendants be GRANTED IN PART and DENIED IN

PART. Specifically, it is RECOMMENDED that the motion to dismiss (Doc. 32) be

GRANTED as to all claims against Defendant Chief Wasdin, DENIED as to all

claims against Defendant Officer Dennis, and that the Plaintiff be permitted to

amend his complaint as to his claims against Defendant Officer Dennis ONLY.

1. Claims Against BCSO Defendants

Plaintiff alleges that the BCSO Defendants made false statements in offense

reports and failed to use due diligence to verify that Officer Dennis’ claims about

Plaintiff’s conduct were plausible. (See Doc. 23 at 9-14, generally). The Amended

Complaint contains sparse facts and vague allegations but it is clear that Plaintiff is

attempting to raise claims for false arrest, false imprisonment, and malicious

prosecution against each BCSO defendant. (See Doc. 23 at 15-16).

a. False Arrest and False Imprisonment Claims

Plaintiff has raised claims of false arrest and false imprisonment against each

BCSO Defendant. Plaintiff claims that Defendants violated his constitutional rights

under the Fourth Amendment by unlawfully arresting and detaining him without

probable cause. The BCSO Defendants argue that they did not arrest or prosecute

Plaintiff. As a result, they contend that they may not be held liable for Plaintiff’s

claims for false arrest/imprisonment and malicious prosecution. These Defendants

also argue that even if they could be held liable, they had arguable probable cause to

arrest and detain Plaintiff and are entitled to qualified immunity.

The Fourth Amendment’s guarantee against unreasonable searches and

seizures encompasses the right to be free from a warrantless arrest without probable

cause. See Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir.2004) (citing Von

Stein v. Brescher, 904 F.2d 572, 579 (11th Cir.1990)).7 “Probable cause is ‘defined in

terms of facts and circumstances sufficient to warrant a prudent man in believing

that the suspect had committed or was committing an offense.’ “ Id. at 1332 (quoting

Gerstein v. Pugh, 420 U.S. 103, 111 (1975)) (internal marks and citations omitted).

However, for purposes of qualified immunity, a constitutional violation does not occur

unless the officer made an arrest without “arguable” probable cause. See Jones v.

Cannon, 174 F.3d 1271, 1283 (11th Cir.1999). Arguable probable cause, not actual

probable cause, governs the qualified immunity inquiry. Id. The test for determining

arguable probable cause is whether an objectively reasonable officer in the same

circumstances and possessing the same knowledge as Defendants could have believed

probable cause existed to arrest Plaintiff. See Thornton v. City of Macon, 132 F.3d

1395, 1399 (11th Cir.1998).

7 A false arrest violates the proscriptions of the Fourth Amendment. See Redd v. City of Enterprise,

140 F.3d 1378, 1382 (11th Cir.1998) (“It is clearly established that an arrest made without probable

cause violates the Fourth Amendment”) (internal citation omitted). Likewise, unlawful detention is

purely a Fourth Amendment claim. See Reid v. Georgia, 448 U.S. 438, 440 (1980) (“[A]ny curtailment

of a person’s liberty by the police must be supported at least by a reasonable and articulable suspicion

that the person seized is engaged in criminal activity.”).

Plaintiff does not identify which BCSO defendant or defendants arrested him, but

claims that at least one of the BCSO Defendants did participate in his arrest. (Doc. 36

at 2). Though the BCSO Defendants have argued that they did not participate in

Plaintiff’s arrest, for purposes of the motion to dismiss, the Court assumes without

finding, that the BCSO Defendants arrested Hails. Assuming the BCSO Defendants did

arrest Plaintiff, they are entitled to qualified immunity as to his false arrest and

imprisonment claims based on the presence of arguable probable cause to do so. (Doc. 30

at 9-10).

The BCSO Defendants have responded, and Plaintiff has not disputed, that they

arrived at Plaintiff’s home in response to a call for assistance from a police officer from

the Town of Silverhill, Alabama. (Doc. 30 at 1). When the BCSO Defendants arrived at

the home, they had been told that Plaintiff had fired a weapon at a Silverhill police officer

and that he was refusing to exit his home. (Id. at 9-10). While Plaintiff claims that Officer

Dennis’ allegation that Plaintiff fired at him is false, he has not disputed this was the

information provided to the BCSO Defendants prior to Plaintiff’s arrest.

For purposes of determining whether arguable probable cause existed, the Court

has considered what was known to the BCSO Defendants at the time of Plaintiff’s arrest.

That is, Plaintiff had fired a weapon at a law enforcement officer and that he refused to

exit his home. This information was relayed to the BCSO Defendants by another law

enforcement officer. (Doc. 30 at 9-10). Plaintiff claims that the BCSO Defendants should

have verified this information before acting upon it. (Doc. 23, generally). However,

Plaintiff’s only allegation is that Officer Dennis’ statements about his conduct (i.e. firing

a gun at Officer Dennis) were false. Plaintiff has not made any allegation that the BSCO

Defendants has any reason to doubt Officer Dennis’ statements about Plaintiff’s conduct.

Based on the contents of the Amended Complaint, the BCSO Defendants acted

reasonably in relying on the statements of another law enforcement officer under the

circumstances presented here. See Burnett v. Unified Gov’t of Athens-Clarke Cty., Ga.,

395 F. App’x. 567, 569 (11th Cir. 2010) (internal quotations, alterations, and citations

omitted)(“Even though Officers Guest and Simpson did not personally observe what

Officer Wright witnessed, they reasonably relied on the information that Wright

provided about the suspected racing offense. Probable cause exists where the facts and

circumstances within the collective knowledge of law enforcement officials, of which they

had reasonably trustworthy information, are sufficient to cause a person of reasonable

caution to believe that an offense has been or is being committed.”); See also Brown v.

City of Huntsville, Ala., 608 F.3d 724, 735 (11th Cir.2010) (“If the arresting officer had

arguable probable cause to arrest for any offense, qualified immunity will apply.”).

Based on the circumstances as they were known to the BCSO Defendants at the

time, the BCSO Defendants, had at least arguable probable cause to arrest Plaintiff or

to assist with his arrest. Thus, they are entitled to qualified immunity on the false arrest

and false imprisonment claims. 8 Accordingly, the undersigned RECOMMENDS that

the BCSO’s Motion to Dismiss be GRANTED and that the false arrest and false

imprisonment claims against Defendants Gaull, McKinney, Jones, Morrison, Correa,

Payne, Walker, Lindell, Reid, and Lamplugh be DISMISSED. (Docs. 29, 32).

8 As with Plaintiff’s false arrest claims, arguable probable cause also serves as a bar to a § 1983 claim

for false imprisonment. See German v. Sosa, 399 F. App’x. 554, 556 (11th Cir. 2010) (applying arguable

probable cause bar to plaintiff’s “false arrest/false imprisonment claims”).

b. Malicious Prosecution Claims Against the BCSO

Defendants

To prove a § 1983 malicious prosecution claim, a plaintiff must establish (1) a

federal Fourth Amendment violation, and (2) the elements of the common law tort of

malicious prosecution. Holland v. City of Auburn, Alabama, 657 Fed.Appx. 899, 902

(11th Cir. 2016) (citing Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003)). To

establish malicious prosecution, a plaintiff must show:

“(1) a criminal prosecution instituted or continued by the present

defendant; (2) with malice and without probable cause; (3) that

terminated in the plaintiff accused’s favor; and (4) caused damage to the

plaintiff accused.” [Wood, 323 F.3d at 882]; see Grider v. City of Auburn,

618 F.3d 1240, 1256 (11th Cir. 2010) (noting that Alabama law for

malicious prosecution is the same except that it requires only a “judicial

proceeding” not a “criminal prosecution”).

Holland, 657 F. App’x. at 902. Defendants argue that they did not institute or

continue Plaintiff’s prosecution. (Doc. 30 at 8-9). In his reply, Plaintiff admits that

the BCSO Defendants’ statement that “[t]he Baldwin County deputy sheriffs did not

prosecute the Plaintiff is true.” (Doc. 36 at 2, ¶ 8). As the BCSO Defendants did not

institute or continue Plaintiff’s prosecution, the undersigned finds that the Amended

Complaint fails to state a claim for malicious prosecution against the Baldwin County

Defendants, and that all malicious prosecution claims against all BCSO Defendants

are due to be DISMISSED.9

9 These claims also fails as there is no allegation that the BCSO Defendants acted maliciously.

2. Silverhill Defendants

The Amended Complaint also makes claims for false arrest, false

imprisonment, and malicious prosecution against two members of the City of

Silverhill Police Department: Officer Dennis and Chief Wasdin. (Doc. 23 at 8). Officer

Dennis was the first officer to arrive at Plaintiff’s residence on June 9, 2015. Per Chief

Wasdin, she is the Silverhill Police Department Chief of Police, and was acting in a

supervisory capacity on June 9, 2015. (Doc. 48 at 2). Plaintiff has not disputed these

facts.

a. Claims Against Chief Wasdin

Plaintiff’s allegations against Chief Wasdin are:

11. Defendant #2 (Kimberly D. Wasdin) Failed to use due diligence to

verify that Defendant #1[‘s] claims were plausible.

12. Defendant #2 (Kimberly D. Wasdin) Allowed the Plaintiff to be

raided by the SWAT Team.

13. Defendant #2 (Kimberly D. Wasdin) Allowed the Plaintiff to be

arrested.

14. Defendant #2 (Kimberly D. Wasdin) Allowed the Plaintiff to be

jailed.

15. Defendant #2 (Kimberly D. Wasdin) Allowed the Plaintiff to be

maliciously prosecuted.

16.Wherefore Plaintiff demands judg[]ment for money damages

against Defendant #2, together with such other and further relief as

the Jury may deem reasonable and just under the circumstances.

(Doc. 23 at 8).

“Supervisory officials are not liable under section 1983 on the basis of

respondeat superior or vicarious liability.” Belcher v. City of Foley, Ala., 30 F.3d 1390,

1396 (11th Cir. 1994) (quotation omitted). Under § 1983, liability attaches to a

supervisor only if the supervisor personally participated in the events, or if there is a

causal connection between the action of the supervising official and the alleged

constitutional deprivation. Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990).

“The standard by which a supervisor is held liable in [his] individual capacity for the

actions of a subordinate is extremely rigorous.” Cottone v. Jenne, 326 F.3d 1352,

1360–61 (11th Cir. 2003)(internal quotations and citations omitted).

The Amended Complaint does not allege that Chief Wasdin personally participated

in or was present when Plaintiff was arrested. Rather, Plaintiff’s claims against her rise

out of her role as Officer Dennis’ supervisor, as Plaintiff alleges she “allowed” Plaintiff

to be arrested, jailed, and maliciously prosecuted. Thus, in order for Chief Wasdin to be

held liable for any alleged violations, Plaintiff must allege that there is “a causal

connection between the action of the supervising official and the alleged constitutional

deprivation.” Brown, 906 F.2d 667, 671. Chief Wasdin is not the Baldwin County Sheriff

or a supervisor within the Baldwin County Sheriff’s Department. As Chief of Police for

Silverhill, Alabama, Chief Wasdin has no supervisory authority over the BCSO

Defendants, and any allegations pertaining to her supervision relate only to her

supervision of Officer Dennis.

There are three ways the required causal connection may be shown. Cottone v.

Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). First, a causal connection may be

established “when a history of widespread abuse puts the responsible supervisor on

notice of the need to correct the alleged deprivation, and he fails to do so.” Braddy v. Fla.

Dep’t of Labor and Employment Sec., 133 F.3d 797, 802 (11th Cir. 1998). To be sufficient

to notify the supervising official, these deprivations must be “obvious, flagrant, rampant,

and of continued duration, rather than isolated occurrences.” Hartley v. Parnell, 193 F.3d

1263, 1269 (11th Cir. 1999). Next, the causal connection can be established “when a

supervisor’s custom or policy ... result[s] in deliberate indifference to constitutional

rights.” Cottone, 326 F.3d at 1360-61. To demonstrate either a policy or custom, the

plaintiff must show “a persistent and wide-spread practice.” Depew v. City of St. Mary’s,

Ga., 787 F.2d 1496, 1499 (11th Cir. 1986). Finally, the causal connection can be

established “when facts support an inference that the supervisor directed the

subordinates to act unlawfully or knew that the subordinates would act unlawfully and

failed to stop them from doing so.” Cottone, 326 F.3d at 1360. See also Gonzalez v. Reno,

325 F.3d 1228, 1236 (11th Cir. 2003) (“Because plaintiffs have failed to allege that the

supervisory defendants’ conduct constituted a constitutional violation, the supervisory

defendants are entitled to qualified immunity under the first step in our qualified

immunity analysis.”).

Plaintiff has failed to allege any facts showing a causal connection by any of

the three methods listed above. The Amended Complaint makes no suggestion of a

history of widespread abuse, or a custom or policy resulting in deliberate indifference.

Further, the Amended Complaint lacks any facts supporting an inference that Chief

Wasdin directed Officer Dennis or anyone else to act unlawfully, or that she knew

Officer Dennis would act unlawfully but failed to stop him from doing so. Thus, Chief

Wasdin, as Officer Dennis’s supervisor, may not be held liable under § 1983 based on

the allegations contained in the Amended Complaint and the undersigned

RECOMMENDS that the Silverhill Defendants’ motion to dismiss (Doc. 32) be

GRANTED with regard to the claims against Chief Wasdin and that all claims

against her be DISMISSED.10

b. Officer Timothy Dennis

The sum total of the allegations made against Officer Dennis are as follows:

1. Defendant #1 (Timothy Trent Dennis) Fabricated A False Arrest

Report on 6/09/15. “through the privacy fence I could see a subject

sitting on his front porch” This statement is False.

2. Defendant #1 (Timothy Trent Dennis) stated “I then climbed up on

the fence and identified myself as a police officer and that I needed to

speak with him” This statement is False.

3. Defendant #1 (Timothy Trent Dennis) stated “he waived at me in

acknowledgement” This statement is False.

4. Defendant #1 (Timothy Trent Dennis) stated “The subject then

produced a rifle, aimed at me, and fired a shot towards me” This

statement is False.

5. As a proximate result, a swat team was deployed to my residence.

6. As a result of his fabricated statements a swat team breached the

gate to my property.

7. As a result, I was falsely arrested.

8. As a result, I was falsely imprisoned.

9. As a result, I was maliciously prosecuted.

10.Wherefore Plaintiff demands judg[]ment for money damages

against Defendant #1, together with such other and further relief as

the Jury may deem reasonable and just under the circumstances.

(Doc. 23 at 8). Plaintiff cites 42 U.S.C. § 1983 as the basis for his claim against all

10 The motion to dismiss argued for dismissal only on the basis of Plaintiff’s failure to identify the

specific constitutional right he alleges has been violated. (Docs. 32-33). However, in Chief Wasdin’s

reply to Plaintiff’s response, she raised the issue of supervisory liability. (Doc. 48).

Defendants. “Section 1983 ‘is not itself a source of substantive rights,’ but merely

provides ‘a method for vindicating federal rights elsewhere conferred.’” Albright v.

Oliver, 510 U.S. 266, 271 (1994) (plurality opinion)(quoting Baker v. McCollan, 443

U.S. 137, 144, n.3 (1979). Thus, to plead a plausible claim, the first step for any

plaintiff is to identify the specific constitutional right allegedly violated. Albright v.

Oliver, 510 U.S. 266, 271 (1994).

As grounds for dismissal, Officer Dennis argues the following:

In his Amended Complaint, the Plaintiff fails to identify any particular

constitutional right that has been violated by Dennis or Wasdin. He

states only that “42 U.S. Code, Section 1983” is at issue in this case on

the pro se complaint form. (Doc. 23, p. 6). He makes no additional

reference to § 1983 in the portion of his complaint asserting claims

against the defendants nor does he reference any constitutional right.

Pursuant to Zatler [v. Wainwright, 802 F. 2d 397, 401 (11th Cir. 1986)],

because the Plaintiff has failed to identify a specific constitutional right

that has been violated, he is also unable to establish a causal connection

between the defendants’ actions and the alleged deprivation. Plaintiff’s

claims are due to be dismissed.

(Doc. 33 at 5-6).

While the Amended Complaint does not contain a specific reference to a

constitutional amendment, Plaintiff’s claims against Officer Dennis are for false

arrest, false imprisonment, and malicious prosecution, which implicate Plaintiff’s

Fourth Amendment rights. Further, as plaintiff is proceeding pro se, his pleadings

must be construed liberally, and as detailed below, the undersigned has

recommended that Plaintiff shall be permitted to amend his complaint with regard

to the allegations against Officer Dennis.

Plaintiff alleges that as a result Officer Dennis’ false statements regarding

Plaintiff’s actions, Plaintiff was falsely arrested, falsely prosecuted, and maliciously

prosecuted. As this stage, the Court must accept Plaintiff’s allegations as true.

Though a warrant for Plaintiff’s arrest was issued after he was taken into custody at

his home, he claims that Officer Dennis’ statements contained in the affidavit in

support of the warrant were false.

Plaintiff’s allegations that Officer Dennis made false statements upon which a

probable cause determination was made, may present a plausible claim for relief

under § 1983. “[W]hen the Fourth Amendment demands a factual showing sufficient

to comprise ‘probable cause,’ the obvious assumption is that there will be a truthful

showing.” [Franks v. Delaware, 438 U.S. 154, 164–65, 98 S.Ct. 2674, 2674, 57 L.Ed.2d

667 (1978) (emphasis in original)]. While this condition does not dictate that the

statements be objectively accurate, it does require that they “be ‘truthful’ in the sense

that the information put forth is believed or appropriately accepted by the affiant as

true.” Id. at 165, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667. Thus, a police officer

may be held liable under 42 U.S.C. § 1983 for submitting an application for an arrest

warrant that contains false information. See Malley v. Briggs, 475 U.S. 335, 346

(1986). See also Holmes v. Kucynda, 321 F.3d 1069, 1083 (11th Cir.2003) (Finding

that officer was not entitled to qualified immunity because he relied on statements

he knew were false in order to obtain an arrest warrant. An officer “may be held liable

under 42 U.S.C. § 1983 for submitting an application for an arrest warrant that

contains false information.”).

Plaintiff’s Amended Complaint is deficient, as it contains vague and conclusory

allegations against Officer Dennis for false arrest, false imprisonment, and malicious

prosecution. However, before an action is dismissed with prejudice for failure to state

a claim, a pro se plaintiff must be given an opportunity to amend the complaint if a

more carefully drafted version might state a claim. Jemison v. Mitchell, 380 F. App’x.

904, 907 (11th Cir. 2010) (per curiam) (unpublished) (emphasis added) (citing Bank

v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991) (per curiam) (“Where a more carefully

drafted complaint might state a claim, a plaintiff must be given at least one chance

to amend the complaint before the district court dismisses the action with

prejudice.”), overruled in part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d

541, 542 (11th Cir. 2002) (en banc) (overruling Bank as to counseled

parties).11Therefore, it is RECOMMENDED that Plaintiff be given an opportunity

to amend ONLY his claims against Defendant Officer Dennis in order to have the

opportunity to replead his claims for § 1983 false arrest, false imprisonment, and

malicious prosecution claims against Defendant Officer Dennis.12

CONCLUSION

As detailed above, the undersigned RECOMMENDS that Defendants Gaull,

McKinney, Jones, Morrison, Correa, Payne, Walker, Lindell, Reid, and Lamplugh’s

Motion to Dismiss (Docs. 29, 32) be GRANTED and that all claims against these

Defendants be DISMISSED. The undersigned further RECOMMENDS that the

Motion to Dismiss filed by Defendant Chief Wasdin be GRANTED, and that all

claims against her be DISMISSED. (Docs. 32-33). The undersigned

RECOMMENDS that the Motion to Dismiss filed by Defendant Officer Dennis be

11 Though Plaintiff has been permitted to amend his complaint once already, amendment was pursuant

to a motion for more definite statement rather than a motion to dismiss.

12 Plaintiff is forewarned that his Second Amended Complaint must comply with the above analysis, the

failure of which may result in the future dismissal of his claims.

DENIED, and that Plaintiff be permitted an opportunity to amend his complaint

ONLY as to his claims against Defendant Officer Dennis. (Docs. 32-33).

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the

manner provided by law. Any party who objects to this recommendation or anything

in it must, within fourteen (14) days of the date of service of this document, file

specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed.

R. Civ. P. 72(b); S.D. Ala. GenLR 72(c). The parties should note that under Eleventh

Circuit Rule 3-1, “[a] party failing to object to a magistrate judge’s findings or

recommendations contained in a report and recommendation in accordance with the

provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district

court’s order based on unobjected-to factual and legal conclusions if the party was

informed of the time period for objecting and the consequences on appeal for failing

to object. In the absence of a proper objection, however, the court may review on

appeal for plain error if necessary in the interests of justice.” 11th Cir. R. 3-1. In

order to be specific, an objection must identify the specific finding or recommendation

to which objection is made, state the basis for the objection, and specify the place in

the Magistrate Judge’s report and recommendation where the disputed

determination is found. An objection that merely incorporates by reference or refers

to the briefing before the Magistrate Judge is not specific.

DONE this 14th day of February 2018.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE