Stallworth v. Hurst

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

ORRILYN MAXWELL )

STALLWORTH, )

)

Plaintiff, )

) NO. 2:18-cv-1005-ALB-SRW

v. )

)

RODNEY W. HURST, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on Defendant Foshee’s Motion to Dismiss

(Doc. 28), Defendant Hurst’s Motion to Dismiss (Doc. 29), and Defendants Harmon

and McCartney’s Joint Motion to Dismiss (Doc. 31). As explained below, the

motions filed by Hurst, Harmon, and McCartney are due to be GRANTED. The

motion filed by Foshee is due to be GRANTED IN PART and DENIED IN PART.

BACKGROUND

At around 10 PM on a December night, Orrilyn Stallworth (“Plaintiff”)

decided to visit a convenience store in Chilton County just off the Verbena exit.

Doc. 27 ¶10. When she drove back onto I-65, a police car began to follow her. Id.

¶12. Although she had violated no rule of the road, Stallworth was ordered to pull

over. Id.

After pulling Stallworth over, Defendant Rodney Hurst (“Hurst”), a Sheriff’s

deputy with the Chilton County Sheriff’s Office, was joined by Defendant Matt

Foshee (“Foshee”), who was a Clanton City police officer, and an unnamed third

party. Id. ¶14. Hurst told Stallworth that he had detected the fetid odors of alcohol

and marijuana emanating from her vehicle. Id. ¶¶16-17. After obtaining

Stallworth’s consent, the officers searched her vehicle for both alcohol and

marijuana but were unsuccessful in locating either. Id. ¶¶18-19.

Despite their unsuccessful search, Hurst informed Stallworth that he would

have to arrest her. Id. ¶20. She was arrested for driving under the influence and

taken to Chilton County Jail. Id. Stallworth’s vehicle was towed and impounded,

and she was subjected to a breath-alcohol content analysis test, which revealed no

alcohol in her system, as well as a blood test. Id. ¶¶25-26. These procedures were

put in place and enforced by Defendants Corry McCartney (“McCartney”), a

corporal in the Chilton County Sheriff’s office, and Kenneth Harmon (“Harmon”),

a captain in the same office. Stallworth was then formally charged by Hurst with

driving under the influence and booked into jail. Id. ¶27.

Just before trial, the State’s attorney moved to dismiss the charges with

prejudice and offered no explanation for this decision. Id. ¶31. Stallworth believes

that the State dismissed the charges against her because it knew Hurst had no

probable cause for her arrest. Id. ¶32. She filed a civil suit against the officials

involved in her arrest and requested damages.

This Court previously granted a motion to dismiss filed by Defendants

McCartney and Harmon. See Doc. 25. Plaintiff chose to file an amended complaint,

(Doc. 27), and this matter comes before the Court on various motions to dismiss

filed by the officers involved.

STANDARD

When considering a motion to dismiss, the court accepts all facts alleged in

the complaint as true and draws all reasonable inferences in the plaintiff’s favor.

Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010). There are two

questions a court must answer before dismissing a complaint. First, the court must

ask whether there are allegations that are no more than conclusions. If there are,

they are discarded. Second, the court must ask whether there are any remaining

factual allegations which, if true, could plausibly give rise to a claim for relief. If

there are none, the complaint will be dismissed. Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007).

DISCUSSION

Plaintiff’s amended complaint contains three claims. The first arises from 42

U.S.C. §1983 and alleges that she was detained without probable cause in violation

of her Fourth Amendment rights. The named Defendants are Hurst, Foshee,

Harmon, McCartney, and an unknown deputy from Chilton County. The second

claim alleges malicious prosecution in violation of 42 U.S.C. §1983 and it is brought

against all Defendants except Foshee. The third count alleges false arrest under

Alabama state law and is brought only against Foshee. All Section 1983 claims have

been brought against the named individuals in both their individual and official

capacities as employees of local governments or the State of Alabama. Plaintiff

seeks monetary damages and other non-economic damages.

1. Rodney Hurst

Hurst has moved to dismiss only the claims that have been brought against

him in his official capacity, and Plaintiff has conceded those claims. See Doc. 36.

The claims against Hurst in his official capacity will therefore be dismissed. The

claims against Hurst in his personal capacity remain.

2. Matt Foshee

Plaintiff alleges that, in violation of the federal constitution (Count 1) and state

law (Count 3), Foshee actively participated in and passively failed to prevent her

arrest despite knowing that Hurst had no probable cause. See Doc. 27 ¶¶33-38 and

¶¶42-45. Foshee argues that Plaintiff’s allegations are insufficient to state claims

against him and that he is immune from suit.

An officer can be held liable under both federal and state law for actively

participating in an arrest that he knows is not based on probable cause. To establish

Section 1983 liability for false arrest in the Eleventh Circuit, a plaintiff must allege

an affirmative causal connection between the officer’s acts or omissions and the

alleged violation. Brown v. City of Huntsville, Ala., 608 F.3d 724, 737 (11th Cir.

2010). This can be accomplished by proving that the official was personally

involved in the acts that resulted in the constitutional deprivation. Id. Similarly,

making out a claim under Alabama law for false arrest and imprisonment requires

an allegation that the officer directly caused the plaintiff to be arrested. Ex parte

Harris, 216 So. 3d 1201, 1213 (Ala. 2016).

Plaintiff erroneously argues that the Eleventh Circuit has also recognized a

cause of action under §1983 against law enforcement officials who passively fail to

intervene in an unlawful arrest.1 The Eleventh Circuit first discussed a cause of

action along these lines in Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986). The

ruling in Byrd pertained only to excessive force, but the court wrote that, “if a police

officer, whether supervisory or not, fails or refuses to intervene when a constitutional

1 The Southern District of Florida has found a claim of failure to intervene in unlawful arrest to

be cognizable based on cases from the Seventh Circuit, the Second Circuit, and the Southern

District of New York. See Ball v. City of Coral Gables, No. 07-20949-CIV, 2007 WL 9706910,

at *5 (S.D. Fla. Dec. 19, 2007). But this logic does not square with the Eleventh Circuit’s own

cases on the subject, as explained below.

violation such as an unprovoked beating takes place in his presence, the officer is

directly liable under Section 1983.” Id.

Subsequent Eleventh Circuit decisions have limited the cause of action in

Byrd to excessive force cases. It is one thing to require a police officer to stop his

partner from hitting someone with a baton. It is another to require that every officer

on the street actively inquire as to the constitutional merits and predicate of each

seizure by other officers, and then countermand seizures they believe are

unreasonable. It would effectively conscript every police officer to play the role of

internal affairs as well as peacekeeper.

Instead of establishing a duty to intervene in the context of unlawful arrest,

the Eleventh Circuit has recognized a “negligent involvement in unlawful arrest”

tort that exposes only those to liability who take part in causing unlawful arrests to

occur and possess actual knowledge that there is no constitutional basis for them.

See Brown v. City of Huntsville, Ala., 608 F.3d 724, 736-737 (11th Cir. 2010)

(holding that, for unlawful arrest liability under §1983, a plaintiff must show that the

officer was “personally involved in the acts that resulted in the constitutional

deprivation” such that “merely being present” was not enough); Lepone-Dempsey v.

Carroll Cty. Comm'rs, 159 F. App’x 916, 920 (11th Cir. 2005) (allowing a cause of

action for failure to intervene in unlawful arrest in a situation where excessive force

was used and holding that “our precedent suggests…that the duty to intervene does

not necessarily extend to every conceivable situation involving a constitutional

violation”); Jones v. Cannon, 174 F.3d 1271, 1286 (11th Cir. 1999) (holding that

“there is no previous decision from the Supreme Court or this Circuit holding that

an officer has a duty to intervene…once [he] knows another officer has fabricated a

confession in a police report for a warrantless arrest”).

Plaintiff cites Wilkerson v. Seymour, 736 F.3d 974, 980 (11th Cir. 2013) in

support of the idea that an officer may be held liable for failing to stop an unlawful

arrest. But, in fact, that case undermines her position. In Wilkerson, the Eleventh

Circuit explained that its case law does “not preclude all failure to intervene claims

against a present, but non-arresting, officer in false arrest cases.” Wilkerson v.

Seymour, 736 F.3d 974, 980 (11th Cir. 2013). Plaintiff cites this statement for the

proposition that her proposed cause of action exists. But what Plaintiff does not cite

is the final sentence of that paragraph, where the court underscores that its precedents

require for liability that an officer know an arrest is unconstitutional and participate

in it. The court explained that “what is made explicit in Jones is that a participant in

an arrest, even if not the arresting officer, may be liable if he knew the arrest lacked

any constitutional basis and yet participated in some way.” Id.

Applying this case law to the facts as alleged in the Amended Complaint, the

Court concludes that Plaintiff’s claims against Foshee cannot be dismissed. Plaintiff

has sufficiently alleged that Foshee knew there was no constitutional basis for the

arrest and participated in it anyway. See Doc. 27 ¶¶18-20. Plaintiff alleges that

Foshee knew the traffic stop was pretextual and had “determined and implicitly

agreed that plaintiff would be arrested upon some as-yet-unknown criminal charge

whether or not an actual basis or probable cause existed for said criminal charge.”

See Doc. 27 ¶15. Plaintiff also alleges that Hurst announced the ostensible basis for

the allegedly pretextual search in Foshee’s presence—that the car smelled of alcohol

and marijuana2—and that those statements were false. See Doc. 27 ¶¶ 16-17. Foshee

had the opportunity to determine for himself whether those statements were true or

false. Finally, Plaintiff alleges that all three officers on the side of the road proceeded

to “arrest [Plaintiff] for driving under the influence and transport her to the Chilton

County Jail.” See Doc. 27 ¶ 20. Although it may be difficult for Plaintiff to establish

at summary judgment or trial that Foshee was aware that there was no constitutional

basis for the arrest and still participated in it, Plaintiff has pleaded sufficient facts to

survive a motion to dismiss as to Foshee.

2 If the smell of marijuana or alcohol was actually emanating from the vehicle, a reasonable

officer could conclude that probable cause existed to arrest the driver. See United States v. Giles,

No. 1:08-CR-0093-CAP-JFK, 2008 WL 11449123, at *6 (N.D. Ga. July 17, 2008) (smell of

marijuana can provide probable cause for arrest); United States v. Reed, No.

118CR00612KOBHNJ, 2019 WL 2710088, at *10 (N.D. Ala. May 3, 2019) (favorably citing the

proposition of Blake v. State, 772 So.2d 1200 (Ala. Crim. App. 2000) that “the odor of burning

marijuana emanating from the defendant’s automobile constituted probable cause to search the

defendant and his passenger and to arrest either for possession of marijuana.”).

Neither party argues that the state law standards for false arrest and

involvement therewith are different than federal law standards. In light of the failure

of the parties to address this issue, the Court will assume without deciding that the

state law cause of action is the same as the federal law cause of action. Because the

Court has concluded there are sufficient allegations to state a Section 1983 claim

under federal law, Foshee’s motion to dismiss the state law claim is also due to be

denied.

Foshee also moved to dismiss the claims against him based on immunity. As

to the federal claim, Plaintiff agrees that it should be dismissed to the extent it is

brought against Foshee in his official capacity. Accordingly, the federal official

capacity claim is dismissed. The federal claim brought against Foshee in his

personal capacity will survive because federal immunity will be abrogated as the

requirements laid out by Wilkerson have been met.

As to the state-law claims, Plaintiff argues that both the official capacity and

personal capacity claims should remain. Specifically, Plaintiff argues that Foshee is

not immune as to the personal capacity claim and the City of Clanton may be

vicariously liable for Foshee’s actions under state law for the official capacity claim.

Alabama law provides that a municipality may be held liable for the negligence of

its employees but not their intentionally wrongful acts. See Ala. Code § 11-47-190.

Inversely, Alabama’s Peace Officer Immunity statute provides that officers are not

liable for negligence or carelessness, just their intentional acts. See Ala. Code § 6-5-

338. Plaintiff has not pleaded any state-law claim based on negligence or

carelessness. If she had, that claim would be barred in its entirety by Peace Officer

Immunity. Instead, Plaintiff has pleaded a state-law intentional tort based on

malicious and intentional conduct.

Where there is an alleged intentional tort, although there can be no municipal

liability under Alabama law, personal liability is not precluded by the Peace Officer

Immunity Statute. See Ex parte City of Gadsden, 718 So.2d 716, 721 (Ala. 1998)

(finding no municipal liability for promissory fraud and that municipalities are

insulated from liability for intentional torts committed by their agents); Hollis v. City

of Brighton, 950 So. 2d 300, 305 (Ala. 2006) (holding that, “Peace-officer immunity,

like State-agent immunity, does not provide immunity from liability for the

commission of an intentional tort, but only for negligence in the exercise of

judgment.”). Accordingly, the state law claim against Foshee in his official capacity

is due to be dismissed, but the state law claim against Foshee in his personal capacity

remains.

3. Kenneth Harmon and Corry McCartney

The Court dismissed Plaintiff’s initial complaint against Harmon and

McCartney for failure to state a claim and gave Plaintiff an opportunity to replead.

The Court can detect no substantive change between Plaintiff’s allegations against

Harmon and McCartney in her first complaint, which the Court dismissed, and her

amended complaint, which the Court will now dismiss. Plaintiff accuses both

Harmon and McCartney of participation in unlawful seizure (Count 1) and malicious

prosecution (Count 2). Plaintiff attempts to make out the elements for these claims

with conclusory assertions that Harmon and McCartney actively caused Hurst to

violate her rights and passively failed to ameliorate the situation after they both

became aware of it. See Doc. 27 ¶¶30(a)-(e).

In Plaintiff’s first complaint she alleged that her drug and alcohol testing at

the station happened at the “direction or with the consent” of the supervisors, that

the decision to charge her was “ratified, condoned, and approved” by them, and

finally that her incarceration was “continued” in part due to the actions of the

supervisors. See Doc. 1 ¶¶ 23-28. This makes up the active component of Plaintiff’s

allegations against Harmon and McCartney. Plaintiff then goes on to allege that

both men are additionally liable because “they culpably and deliberately failed or

refused to review the evidence concerning the plaintiff’s arrest and detention” and

“culpably failed to supervise the actions of…Hurst.” Id. ¶ 28. This is Plaintiff’s

allegation of passivity.

The Court’s previous order dealt with these allegations in turn. The Court

explained that there is no vicarious Section 1983 liability for police supervisors

based on the acts of their subordinates. See Doc. 25 at 3 citing Cottone v. Jenne,

326, 326 F.3d 1352, 1360 (11th Cir. 2003). For the active allegations, Plaintiff was

informed that the test for supervisory liability was a causal connection between the

act and the violation based on [1] a history of widespread abuse which puts the

supervisor on notice, [2] a supervisor’s custom or policy that causes the deprivation

of rights, or [3] facts supporting an inference that the supervisor directed the

subordinates to act unlawfully or knew that the subordinates would do so and failed

to stop it. Id. at 3-4 citing Cottone, 326 F.3d at 1360. For the passive allegations,

Plaintiff was informed that, “[t]here is no constitutional requirement for a

supervising officer to complete a full on-scene investigation of the basis for an arrest

for conduct he did not observe.” See Doc. 25 at 4 citing Wilkerson v. Seymour, 736

F.3d 978, 980 (11th Cir. 2013).

In the amended complaint’s recitation of the active allegations, Plaintiff was

once again subjected to alcohol and blood testing at the station but this time

“pursuant to standing or general orders promulgated and enforced” by Harmon and

McCartney. See Doc. 27 ¶25-26. Plaintiff was charged with a crime, but this time

with the “active and personal participation of” Harmon and McCartney. Id. ¶27.

The paragraph relating to incarceration is identical. Id. ¶28. In newly added

subparagraphs 30(b)-(e), Plaintiff alleges that the two men “actively…participated,

intentionally…to cause…the unlawful…arrest, charging, detention, and

imprisonment” of Stallworth and “set in motion a series of acts…that resulted in the

finalization of plaintiff’s arrest” even though they “should have known” it was

“unlawful.”

Plaintiff’s changes do not bring the complaint into compliance with the

requirements set forth in the first dismissal. A “standing order” to test people for

alcohol and drug use when they are arrested for driving under the influence is not a

“custom or policy” that causes constitutional deprivation. Further, while “active and

personal participation” does track the language of the test from the first dismissal,

there are no accompanying factual allegations that show what the officers allegedly

did to constitute such participation, rendering the general accusation conclusory.

Plaintiff also fails to tell the Court how the supervisors “set in motion a series of

acts.” Therefore, the Court finds that Plaintiff’s allegations of active deprivation are

once again insufficient to support claims of either unlawful arrest or malicious

prosecution.

Plaintiff’s improvement on her passive allegations is even less impressive. In

subparagraph 30(a), Plaintiff merely repeats her allegation that Harmon and

McCartney failed to independently ascertain the evidentiary basis for her arrest.

This time, instead of “culpably and deliberately” failing to “review the evidence,”

they have “culpably intentionally, with gross negligence, recklessness, or deliberate

indifference” failed to review “the quality and sufficiency of the evidentiary

foundation.” Id. ¶30(a). Whether the two men failed to review the evidence because

of simple negligence or intentional malice is immaterial because, as the Court

mentioned in its earlier order to dismiss, they have no duty to do so. Plaintiff then

claims that the supervisors “acquiesced” in or “condoned” her detention, despite

having “actual knowledge” that her rights had been violated and that they had a duty

to withdraw her charges because the evidence known to them “did not establish

probable cause for her arrest.” Id. ¶30(d). Because Plaintiff alleges no facts that

could plausibly support the inference that such knowledge existed, let alone that both

men maliciously took steps to continue her prosecution despite it, the claim fails.

Although no new factual material was included in Plaintiff’s brief, Plaintiff

cites a multitude of federal circuit cases for the proposition that Harmon and

McCartney are liable “(1) for their direct and personal participation in the alleged

unconstitutional actions and (2) their deliberate failure to act that amounts to their

explicit or implicit authorization, approval or acquiescence in the constitutional

deprivation.” See Doc. 37 at 13. However, neither the Court nor Harmon or

McCartney has ever questioned whether law enforcement officials who are complicit

in conspiracies to violate constitutional protections can be held liable for such

activity. They clearly can. Rather, the issue is that, despite using a number of

suggestive verbs like “condoned” and “acquiesced,” Plaintiff has carefully avoided

alleging even one single fact that might allow the Court to attach an inference to any

of them. Although the standard of pleading is a forgiving one, an assertion like

“deliberate failure to act” is conclusory if the complaint does not include any kind

of alleged fact that would allow an inference to support the assertion. See Burnett v.

Fulton Cty. Bd. of Educ., No. 1:07-CV-0300-JTC-AJB, 2007 WL 9702284, at *8

(N.D. Ga. June 20, 2007) (holding that “[d]espite the liberal pleading standard under

Fed. R. Civ. P. 8, courts have routinely dismissed complaints where a plaintiff makes

only conclusory allegations about a policy or custom.”); Associated Builders, Inc. v.

Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1974) (holding that “[c]onclusory

allegations and unwarranted deductions of fact are not admitted as true.”).

In summary, Plaintiff’s well-plead allegations against Harmon and

McCartney are as follows: because Plaintiff was arrested by officers under the

nominal control of Harmon and McCartney, and because her case proceeded to the

state prosecutor without any intervention, they are responsible for both her detention

and prosecution. This is nothing but a claim for vicarious liability, and the law does

not allow such a claim.

CONCLUSION

For the foregoing reasons, the Court ORDERS as follows:

1. Defendant Foshee’s Motion to Dismiss (Doc. 28) is GRANTED IN

PART AND DENIED IN PART.

2. Defendant Hurst’s Motion to Dismiss (Doc. 29) is GRANTED.

3. Defendants Harmon and McCartney’s Joint Motion to Dismiss (Doc. 31)

is GRANTED.

4. All claims against Hurst and Foshee in their official capacities are

DISMISSED WITHOUT PREJUDICE.

5. All claims against Harmon and McCartney in whatever capacity are

DISMISSED WITH PREJUDICE.

DONE and ORDERED this 8th day of October 2019.

/s/ Andrew L. Brasher

ANDREW L. BRASHER

UNITED STATES DISTRICT JUDGE