Coke v. City of Birmingham, Alabama

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MARKUS COKE, }

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Plaintiff, }

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v. }

} Case No.: 2:23-cv-00280-MHH

CITY OF BIRMINGHAM, et al., }

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Defendants. }

}

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MEMORANDUM OPINION AND ORDER

In this civil rights action, pro se plaintiff Markus Coke contends that

Birmingham Police Officer Nicholas George violated his constitutional rights while

Officer George was working for Zydeco, a night club located in downtown

Birmingham. Mr. Coke has sued the City of Birmingham, the Birmingham Police

Department, and Zydeco.1 Mr. Coke alleges that the defendants violated his civil

rights when Officer George stopped him after he left Zydeco and transported him

back to Zydeco against his will. Pursuant to 42 U.S.C. § 1983, Mr. Coke asserts

against the defendants claims for violations of his rights under the Fourth and Eighth

1 Mr. Coke also sued “N.A. George” and Destini Teele. (Doc. 1). Mr. Coke did not serve Officer

George with a summons and complaint, and Officer George has passed away. (See Doc. 3; Doc.

50, p. 2, ¶ 3; Doc. 61-1, p. 3). The Court has dismissed Ms. Teele as a defendant. (Doc. 45). The

City, the BPD, and Zydeco remain as defendants.

Amendments and state law claims for kidnapping, false arrest, assault, harassment,

fraud, false imprisonment, unlawful arrest, and conspiracy. Mr. Coke and the

defendants have filed motions for summary judgment on Mr. Coke’s claims.

This opinion resolves these pending cross-motions. The opinion opens with

a statement of the legal standard that governs cross-motions for summary

judgment. Then, consistent with that standard, the Court summarizes the evidence

in the summary judgment record. Based on the evidence in the record and the

governing legal standards for each of Mr. Coke’s claims, the Court then resolves

the parties’ summary judgment motions.

I.

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a district 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). When considering a summary judgment motion, a district

court must view the evidence in the record in the light most favorable to the non-

moving party and draw reasonable inferences from that evidence in favor of the non-

moving party. Sconiers v. Lockhart, 946 F.3d 1256, 1260 (11th Cir. 2020). When

a district court receives cross-motions for summary judgment, the court “must

methodically take each motion in turn and construe all the facts in favor of the non-

movant for each. If, after engaging in this analysis, the district court determines no

genuine issue of material fact exists, then it may appropriately enter summary

judgment for a party.” Thai Mediation Ass’n of Ala., Inc. v. City of Mobile, 83 F.4th

922, 926 (11th Cir. 2023). “A litigant’s self-serving statements based on personal

knowledge or observation can defeat summary judgment.” United States v. Stein,

881 F.3d 853, 857 (11th Cir. 2018); see also Feliciano v. City of Miami Beach, 707

F.3d 1244, 1253 (11th Cir. 2013). Even if a district court doubts the veracity of the

evidence, the court cannot make credibility determinations; that is the work of a

factfinder. Feliciano, 707 F.3d at 1252 (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986)). Still, conclusory statements in a declaration cannot by

themselves create a genuine issue of material fact. See Stein, 881 F.3d at 857 (citing

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)). Additionally, where video

evidence “obviously contradicts” the non-movant’s “version of the facts,” a district

court must “accept the video’s depiction instead of [the non-movant’s] account.”

Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir. 2010) (citing Scott

v. Harris, 550 U.S. 372, 380 (2007)); see also Scott, 550 U.S. at 380 (“When

opposing parties tell two different stories, one of which is blatantly contradicted by

the record, so that no reasonable jury could believe it, a court should not adopt that

version of the facts for purposes of ruling on a motion for summary judgment.”).

Because Mr. Coke is a pro se litigant, the Court construes his submissions

liberally. Caldwell v. Warden, 748 F.3d 1090, 1098 (11th Cir. 2014) (citing

Trawinski v. United Techs., 313 F.3d 1295, 1297 (11th Cir. 2002)). The Court

considers as evidence “specific facts” in Mr. Coke’s sworn complaint and other

sworn submissions. Caldwell, 748 F.3d at 1098 (quoting Perry v. Thompson, 786

F.2dd 1093, 1095 (11th Cir. 1986) (“Plaintiff alleged specific facts in his sworn

complaint and they were required to be considered in sworn form.”)); Stein, 881 F.3d

at 857.

II.

On March 12, 2021, Mr. Coke went to Zydeco. (Doc. 1, p. 4; Doc. 61-3, pp.

6–8). At the time, JJ DeLuca was the manager of Zydeco, and Officer George was

providing security at Zydeco while he was off duty for the BPD. (Doc. 61-2, p. 2;

Doc. 59-1, p. 3). Officer George was wearing his Birmingham Police Department

uniform while working as an off-duty officer. (Doc. 59-1, p. 3).

Mr. Coke was asked to leave Zydeco and was escorted out of the

establishment. (Doc. 61-3, p. 8, tp. 23–25; Doc. 59-1, p. 3). Officer George

approached Mr. Coke as he was getting into his vehicle. (Doc. 61-5, 11:17–11:49).

Mr. Coke and Officer George had a disagreement, (Doc. 61-5, 11:17–11:49), and

Mr. Coke sped off and ran the stop sign at an intersection near Zydeco. (Doc. 61-

3, p. 10, tp. 32–33; Doc. 61-5, 11:47–11:52).2 Officer George got in his BPD

2 Officer George did not record his conversation with Mr. George; Officer George turned on his

body camera at 11:47 p.m. (See Doc. 61-5, 11:17–11:47).

cruiser and pursued Mr. Coke. (Doc. 61-5, 11:51–12:39). The pursuit ended at

Black Market Bar & Grill, approximately five blocks from Zydeco. (Doc. 1, p. 4;

Doc. 61-3, p. 12, tp. 38–40; Doc. 61-5, 12:49–12:55).

At Black Market, Officer George drew his weapon as Mr. Coke exited his

vehicle. (Doc. 1, p. 4; Doc. 61-3, pp. 11–12; Doc. 61-5, 12:50–12:55). Officer

George handcuffed Mr. Coke and placed him in the back of the police cruiser.

(Doc. 1, p. 6; Doc. 61-5, 12:59–14:01). Officer George retrieved Mr. Coke’s

wallet. (Doc. 61-5, 13:40–13:45). Meanwhile, Officer Joshua Willis arrived at

the scene. (Doc. 61-1, p. 6; Doc. 61-5, 14:01). Officer George sent Mr. Coke’s

license information to dispatch to determine whether Mr. Coke had active

warrants; there were none. (Doc. 61-5, 14:56–15:09). Officer George guided Mr.

Coke out of the cruiser and removed the handcuffs. (Doc. 61-5, 17:14–17:49).

Officer Willis led Mr. Coke through a field sobriety test. (Doc. 61-5, 18:00–

22:38). Mr. Coke passed two of three categories of the field sobriety test. (Doc.

61-5, 16:15, 22:40–24:47). Mr. Coke did not have proof of insurance with him.

(Doc. 61-5, 35:14–35:45). In searching for his insurance card, Mr. Coke informed

the officers that he had a pistol in his vehicle. (Doc. 61-1, 34:07–34:34). Mr. Coke

provided Officer George a copy of his pistol license. (Doc. 61-1, 34:48–34:50).

At the end of the encounter, Officer George issued Mr. Coke a citation for

failure to stop at a stop sign; failure to use a seatbelt; reckless driving; and failure

to display insurance. (Doc. 1, p. 9; Doc. 61-5, 37:00–38:15). Then, Officer George

informed Mr. Coke that he was taking him for “a ride . . . back up [] to Zydeco”

because the owner wished to speak to Mr. Coke. (Doc. 1, p. 9; Doc. 61-5, 38:15–

38:24). Mr. Coke agreed and stated that he “w[ould] listen to him.” (Doc. 61-5,

38:23–38:26). Mr. Coke opened the police cruiser’s back passenger door and

entered the cruiser. (Doc. 61-5, 38:40–38:54).

At Zydeco, Mr. DeLuca walked to the patrol vehicle and told Mr. Coke he

was not allowed to visit the establishment. (Doc. 1, p. 9; Doc. 61-3, p. 12, tp. 41;

Doc. 61-5, 41:05–41:30).3 Officer George then drove Mr. Coke back to Black

Market and dropped Mr. Coke at his vehicle. (Doc. 61-3, pp. 13–14; Doc. 61-5,

41:40–43:01).4 Mr. Coke did not seek medical treatment or make an insurance

3 The body camera footage does not show Mr. DeLuca as he spoke with Mr. Coke. The footage

does not capture all of Mr. DeLuca’s conversation with Mr. Coke, but Officer George’s body

camera recorded Mr. DeLuca stating to Mr. Coke: “Hey, man. You can’t come back up here

anymore, okay?” (Doc. 61-5, 41:05–41:30).

4 Mr. Coke attached to his complaint a letter addressed to the clerk for the City of Birmingham

that Mr. Coke filed on December 16, 2021. (Doc. 1, pp. 8–12). In his letter, Mr. Coke provides

the following description of events:

I and my party left Club Zydeco on the date stated above located at 2001 15th

Avenue S, and parked three blocks from Club Zydeco to go to another

establishment. After I properly parked and was getting out of my vehicle, I noticed

blue lights being turned on behind me and in the roadway. I and the other two in

my party completed the exit from my vehicle. The husband asked N.A. George,

officer no. 3685, “WHY ARE YOU STOPPING HIM HE DID NOT DO

ANYTHING.” N.A. George, officer no. 3685 replied in a loud aggressive tone,

“GET THE [EXPLETIVE] OUTTA HERE” in case you did not believe what you

read, let me repeat what N.A. George, officer no. 3685 said to two citizens of

Birmingham, Alabama. “GET THE [EXPLETIVE] OUTTA HERE.” . . . N.A.

George, officer no. 3685 asked for my drivers license, he then told me I was under

claim because of the encounter. (Doc. 61-3, pp. 15–16, tp. 53–54).

III.

***

The Court begins its analysis of Mr. Coke’s claims with his claims against the

City of Birmingham and the Birmingham Police Department. “[P]olice departments

are not usually legal entities subject to suit,” and the “capacity to sue or be sued shall

be determined by the law of the state in which the district court” is located. Dean v.

Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (collecting cases). In the City of

Birmingham’s answer in this case, the City asserted that “the Birmingham Police

Department is a department of the City of Birmingham and not a separate entity from

the City.” (Doc. 47, pp. 1–2; see also Doc. 5, p. 2; Doc. 5-1, pp. 4–7; Doc. 62-1, pp.

27–30). Indeed, under Alabama law, police departments and other “subordinate

entities of municipalities, counties, and towns that are not separate legal entities or

arrest, he handcuffed me, put me in the back of his patrol car. He said nothing to

me, I knew I was going to jail, why, I did not know. He then drove three blocks

back to Zydeco, where we had just left minutes ago. He parked in front of the Club,

the front door is only about 15 feet away, someone was waiting at the door and

when he [saw] the patrol car pull up, he walked over to my door and told me that I

was barred from the Club. The man walked away and we drove off. N.A. George,

officer no. 3685, drove back to my parked car, I stayed handcuffed in the back seat

while he was doing something in the front seat. It seemed like hours but after

minutes N.A. George, officer no. 3685 got out, opened my door, unhandcuffed me,

handed me my drivers license, handed me traffic tickets and drove away.

(Doc. 1, pp. 8–10). Per Scott and Gee, the Court credits the body camera evidence over Mr. Coke’s

account of the events where the video evidence contradicts Mr. Coke’s version of events. See

Scott, 550 U.S. at 380; Gee, 625 F.3d at 1315.

bodies do not have the capacity to sue or be sued” absent specific statutory authority.

Ex parte Dixon, 55 So. 3d 1171, 1172 n.1 (Ala. 2010) (quoting 56 Am. Jur. 2d

Municipal Corps. § 787 (2000)); see also Jones v. Hutchinson, Case No.: 2:08-cv-

02082-HGD, 2008 WL 11423963, at *1 (N.D. Ala. Dec. 18, 2008) (citing Dean, 951

F.2d at 1214) (“The City of Birmingham Police Department is not a legal entity

subject to suit under 42 U.S.C. § 1983 and therefore is not a proper defendant in this

action.”).

Because the Birmingham Police Department generally is not subject to suit, and

Mr. Coke has not cited a statutory basis for his claims against the BPD, the Court

concludes, as a matter of law, that Mr. Coke may not pursue federal or state claims

against the Birmingham Police Department.

Mr. Coke asserts his federal constitutional claims against the City under 42

U.S.C. § 1983. Municipalities may not be held liable under § 1983 for the acts of

city employees under the theory of respondeat superior. Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 691 (1978); McDowell v. Brown, 932 F.3d 1283, 1289 (11th

Cir. 2004). To hold a city liable under § 1983, a plaintiff must demonstrate that he

was deprived of a federally protected right by the tortious act of a city employee who

acted “pursuant to official municipal policy.” Monell, 436 U.S. at 697; see also

Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986) (“The ‘official policy’ requirement

was intended to distinguish acts of the municipality from acts of employees of the

municipality, and thereby make clear that municipal liability is limited to action for

which the municipality is actually responsible.” (emphasis in Pembaur)). For the

City to be liable, Mr. Coke must show that his constitutional rights were violated,

that the City has a custom or policy that constituted deliberate indifference to his

constitutional rights, and that the policy or custom caused the constitutional

violation. McDowell, 392 F.3d at 1289.

For purposes of Monell liability, a policy is “a decision that is officially

adopted by the municipality, or created by an official of such rank that he or she

could be said to be acting on behalf of the municipality . . . A custom is a practice

that is so settled and permanent that it takes on the force of law.” Sewell v. Town of

Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997). “A municipality can be liable

when ‘a series of decisions by a subordinate official manifest[s] a ‘custom or usage’

of which the supervisor must have been aware.’” Church v. City of Huntsville, 30

F.3d 1332, 1343 (11th Cir. 1994) (quoting City of St. Louis v. Praprotnik, 485 U.S.

112, 130 (1988)). “[T]o demonstrate a policy or custom, it is generally necessary to

show a persistent and wide-spread practice. Moreover, actual or constructive

knowledge of such customs must be attributed to the governing body of the

municipality.” Depew v. City of St. Mary’s, 787 F.2d 1496, 1499 (11th Cir. 1986).

Here, Mr. Coke has not provided evidence of a municipal policy or custom to

support his claim against the City as required by Monell. In his deposition, Mr. Coke

stated that the body camera footage supports his assertion that the City has a policy

or custom of violating individuals’ civil rights, (Doc. 61-3, p. 16, tp. 55–57), but the

body camera footage shows only the March 12, 2021, encounter. A single instance

of alleged constitutional violations cannot support § 1983 liability against a

municipality. See City of Huntsville, 30 F.3d at 1343; Depew, 787 F.2d at 1499.

Because Mr. Coke has not identified a custom or policy implemented or adopted by

the City that causes BPD officers to deprive citizens of their Fourth or Eighth

Amendment rights, the City is entitled to summary judgment as a matter of law.

The City asserts that Mr. Coke has abandoned his state law claims against the

City. (Doc. 62-1, p. 30). In his response to the City’s motion, (Doc. 66), Mr. Coke

does not address the City’s argument concerning his state-law claims. Therefore,

Mr. Coke has abandoned those claims. See Jordan v. Conway, 441 Fed. Appx. 761,

762 (11th Cir. 2011) (quoting Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.

2008)) (“Although we construe pro se briefs liberally, ‘issues not briefed on appeal

by a pro se litigant are deemed abandoned.’”). The Court will enter judgment for

the City on those claims.5

5 The Court notes that under Alabama law, a city may be sued for negligent acts of its employees

but not intentional torts of its employees. ALA. CODE § 11-47-190; Franklin v. City of Huntsville,

670 So. 2d 848, 850 (Ala. 1995) (“Section 11-47-190 provides for an action against a municipality

for the ‘neglect, carelessness, unskillfulness’ of its agents, not for their intentional torts.”); see also

Ex parte City of Gadsden, 718 So. 2d 716, 721 (Ala. 1998). Under Alabama law, assault and fraud

are intentional torts. Wright v. Wright, 654 So. 2d 542, 545 (Ala. 1995) (assault); McCullough

v. Allstate Prop. and Cas. Ins. Co., 256 So. 3d 103, 110 (Ala. Civ. App. 2018) (quoting Patten v.

Alfa Mut. Ins. Co., 670 So. 2d 854, 856 (Ala. 1995)) (fraud). False arrest and false imprisonment

***

Turning to Mr. Coke’s claims against Zydeco, Mr. Coke asserts that Zydeco

is liable for Officer George’s conduct in detaining him and transporting him from

Black Market to Zydeco and back again to his vehicle at Black Market. To support

his state law claims concerning this series of events, Mr. Coke relies on the fact that

Officer George was working off-duty as a security guard for Zydeco at the time of

the encounter, not as a Birmingham police officer. (Doc. 61-3, pp. 19–22).

An off-duty police officer’s status may transform into active duty if he or she

witnesses a crime. Dinmark v. Farrier, 510 So. 2d 819, 820–21 n.1 (Ala. 1987)

(citing Robinson v. State, 361 So. 2d 1113 (Ala. 1978) (“A change in the policeman’s

status would occur if he saw a crime committed in his presence.”); Perry v.

Greyhound Bus Lines, 491 So. 2d 926, 926 (Ala. 1986) (“Because the offense for

which Perry was arrested was committed in the officers’ presence, we affirm

traditionally are intentional torts unless a plaintiff proves that such acts are part of “a factual pattern

that demonstrates ‘neglect, carelessness, or unskillfulness.’” Franklin, 670 So. 2d at 852. The

Court is not aware of a civil harassment claim other than a claim for sexual harassment, and sexual

harassment is an intentional tort. See Machen v. Childersburg Bancorporation, Inc., 761 So. 2d

981, 985 n.3 (Ala. 1999) (quoting Potts v. BE&K Constr. Co., 604 So. 2d 398, 400 (Ala. 1992)).

Kidnapping is a crime, not a tort. See ALA. CODE §§ 13A-6-43, 13A-6-44. Additionally, “[a]

plaintiff alleging a conspiracy must have a valid underlying cause of action.” DGB, LLC v. Hinds,

55 So. 3d 218, 234 (Ala. 2010) (quoting Callens v. Jefferson Cnty. Nursing Home, 769 So. 2d 273,

280 (Ala. 2000)) (brackets added). Thus, under Alabama law, Mr. Coke may not pursue his state

law claims against the City.

summary judgment . . ..”); see also Parker v. Dillard’s Inc., Case No.: 1:20-cv-

00111-CLM, 2021 WL 63342, at *1–2 (N.D. Ala. Jan. 7, 2021).

Here, as Officer George’s body cam recording shows, as Mr. Coke drove

away from Zydeco, he ran a stop sign. That is a violation of Ala. Code § 32-5A-

112(B). (Doc. 61-3, p. 10, tp. 32–33; Doc. 61-5, 11:47–11:52). When Officer

George witnessed Mr. Coke run the stop sign, his status as an off-duty police officer

transformed into active duty, and Officer George could pursue and detain Mr. Coke.

See Dinmark, 510 So. 2d at 820–21 n.1. To the extent that Mr. Coke contends that

Officer George unlawfully transported him to Zydeco to speak to Mr. DeLuca, the

video evidence demonstrates that Mr. Coke opened the BPD cruiser door and

voluntarily accompanied Officer George to Zydeco. This video evidence contradicts

Mr. Coke’s effort to cast his return to Zydeco as kidnapping or an unlawful arrest.

Accordingly, Mr. Coke’s claims against Zydeco fail as a matter of law.6

IV.

For the reasons explained above, the Court grants the defendants’ motions for

summary judgment and enters judgment for the defendants on Mr. Coke’s claims.

Because the Court grants the City’s and Zydeco’s motions for summary judgment

6 To the extent that Mr. Coke attempts to assert a § 1983 claim against Zydeco by describing

Zydeco as liable “under the color of state,” Mr. Coke has not pleaded or otherwise demonstrated

that Zydeco, a private business, falls into one of the narrow exceptions to the general rule that

private parties are not state actors for purposes of § 1983. Charles v. Johnson, 18 F.4th 686, 694–

96 (11th Cir. 2021) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982)); American

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999).

as to each of Mr. Coke’s claims, the Court denies Mr. Coke’s cross-motion for

summary judgment. The Clerk of Court shall please TERM Docs. 54, 59, and 62

and close this case. The Clerk of Court shall please also mail a copy of this order to

Mr. Coke.

DONE and ORDERED this September 18, 2025.

adele HUGHES HAIKALA

UNITED STATES DISTRICT JUDGE

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