Walker v. The City of Dothan, Alabama (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

JOHN ALLEN WALKER, )

)

Plaintiff, )

)

v. ) CASE NO. 1:18-cv-170-JTA

) (WO)

THE CITY OF DOTHAN, )

ALABAMA, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This cause is before the Court on Defendants’ Motion for Summary Judgment.

(Doc. No. 67.) The Court has carefully reviewed the brief in support of the motion (Doc.

No. 68), Plaintiff’s response in opposition thereto (Doc. No. 73), Defendants’ reply (Doc.

No. 75), and the supporting and opposing evidentiary materials. For the reasons set forth

below, the Court finds that the motion for summary judgment (Doc. No. 67) is due to be

GRANTED.

I. SUMMARY JUDGMENT STANDARD

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is

proper “if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment “always

bears the initial responsibility of informing the district court of the basis for its motion, and

identifying those portions of the ‘pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. The movant

can meet this burden by presenting evidence showing there is no dispute of material fact,

or by showing, or pointing out to, the district court that the nonmoving party has failed to

present evidence in support of some element of its case on which it bears the ultimate

burden of proof. Id. at 322–324. A factual dispute is genuine if the evidence would allow

a reasonable jury to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).

Once the moving party has met its burden, Rule 56(e) “requires the nonmoving party

to go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to

interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a

genuine issue for trial.’” Celotex Corp., 477 U.S. at 324. To avoid summary judgment,

the nonmoving party “must do more than show that there is some metaphysical doubt as to

the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574

(1986). On the other hand, the evidence of the nonmovant must be believed and all

justifiable inferences must be drawn in its favor. See Anderson, 477 U.S. at 255. After the

nonmoving party has responded to the motion for summary judgment, the court must grant

summary judgment if there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(e). As stated by the Court in

Celotex, if the non-moving party “fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the

burden of proof at trial,” the moving party is entitled to summary judgment. Celotex Corp.,

477 U.S. at 322.

II. FACTUAL BACKGROUND1 AND PROCEDURAL HISTORY

This case stems from the arrest of Plaintiff John Allen Walker on March 30, 2010,

in Dothan, Alabama, and his subsequent prosecution for obstruction of governmental

operations. The undisputed facts are as follows.

Defendant Steve Parrish (“Chief Parrish”) has been Chief of the Dothan Police

Department since May 1, 2015. (Doc. No. 68-1, Ex. A, Parrish Aff. at 1.) The City of

Dothan, Alabama (“Dothan”) Police Department requires appropriate in-service training

of its officers over and above what is required by the State of Alabama. (Id. at 3.) The

Dothan Police Department has been certified by the Commission on Accreditation for Law

Enforcement Agencies since July 2012. (Id.) On March 30, 2010, the date this cause of

action arose, Chief Parrish was the Captain of the Administrative Services Division of the

Dothan Police Department. (Id. at 2.) As Captain of the Administrative Services Division,

Chief Parrish’s responsibilities did not include the training of Dothan Police officers or the

supervision of officers assigned to the Patrol Division of the Dothan Police Department.

(Id.)

Defendant Michael Miller (“Officer Miller”) was employed as a Dothan Police

officer from July 30, 2007, until November 30, 2011. (Id. at. 2.) Officer Miller was

1 As it must when ruling on a motion for summary judgment, this Court accepts the evidence of

the nonmovant – here, Walker – as true and draws all justifiable inferences in his favor. Anderson,

477 U.S. at 255.

certified by the Alabama Peace Officer’s Standards and Training (APOST) Commission at

all times during his employment and received training that met or exceeded the minimum

standards required by the Commission as a Dothan Police officer. (Id.)

Daniel Grantham (“Officer Grantham”) has been employed as a Dothan Police

officer since February 11, 2008. (Id. at. 3.) Officer Grantham has been APOST certified

at all times during his employment and has received training that meets or exceeds the

minimum standards required under the Alabama Peace Officer’s Standards and Training

Commission as a Dothan Police officer. (Id.)

On March 30, 2010, Officer Miller was conducting a traffic stop near the

intersection of Shirley and Burdshaw Streets. (Doc. No. 68-2, Ex. B, Grantham Aff. at 2;

Doc. No. 68-3, Ex. C, Circuit Court Tr. at 30–31.) Officer Grantham was dispatched as

backup and began directing traffic while Officer Miller conducted the traffic stop. (Doc.

No. 68-2, Ex. B, Grantham Aff. at 2; Doc. No. 68-3, Ex. C, Circuit Court Tr. at 32–33.)

While directing traffic, Officer Grantham observed a white minivan occupied by two

individuals approach and stop by the vehicle involved in the traffic stop. (Doc. No. 68-2,

Ex. B, Grantham Aff. at 2; Doc. No. 68-3, Ex. C, Circuit Court Tr. at 34-35.) Plaintiff John

Walker was in the passenger seat, and his wife, Beverly Walker, was the driver of the white

minivan. (Doc. No. 68-2, Ex. B, Grantham Aff. at 2; Doc. No. 68-3, Ex. C, Circuit Court

Tr. at 34–36.) The Walkers communicated with the individual involved in the traffic stop.

(Doc. No. 68-2, Ex. B, Grantham Aff. at 2; Doc. No. 68-3, Ex. C, Circuit Court Tr. at 61-

62.)

This is where the undisputed facts end and the factual disputes begin. Defendants

aver Officer Grantham approached the minivan while signaling for the driver to continue

moving and verbally instructed the driver to keep moving. (Doc. No. 68-2, Ex. B,

Grantham Aff. at 2-3.) As Officer Grantham approached the passenger side of the minivan,

he informed the Walkers that the officers were on a traffic stop and they needed to keep

moving. (Doc. No. 68-2, Ex. B, Grantham Aff. at 2-3; Doc. No. 68-3, Ex. C, Circuit Court

Tr. at 35–37, 62.) According to Officer Grantham, John Walker did not comply with his

instructions and argued with him. (Doc. No. 68-2, Ex. B, Grantham Aff. at 3; Doc. No.

68-3, Ex. C, Circuit Court Tr. at 37–38.) According to the Walkers, the road was blocked

by oncoming traffic that prevented Beverly Walker from complying with the instructions

by the officer. (Doc. No. 73-2, Beverly Walker Aff. at 1; Doc. No. 68-3, Ex. C, Circuit

Court Tr. at 62-63.) The Walkers assert that John Walker did not argue with the officer.

(Doc. No. 73-2, Beverly Walker Aff. at 2; Doc. No. 73-1, John Walker Aff. at 2.)

The encounter between the officers and the Walkers continued until John Walker

was arrested. One of the officers placed John Walker under arrest for obstruction of

governmental operations and transported him to the Dothan City Jail for booking. (Doc.

No. 68-2, Ex. B, Grantham Aff. at 3-4; Doc. No. 68-3, Ex. C, Circuit Court Transcript at

40–41.) The Walkers assert that it was Officer Miller who placed John Walker under arrest.

(Doc. No. 72 at 1; Doc. No. 73-1 at 1; Doc. No. 73-2 at 2.) But, according to Officer

Grantham, he placed John Walker under arrest. (Doc. No. 68-2, Ex. B, Grantham Aff. at

3-4.)

On April 2, 2010, Officer Grantham prepared a complaint charging John Walker

(“Walker”) with obstruction of governmental operations, which was signed and sworn

before City of Dothan Magistrate Valarie Savage. (Doc. No. 68-2, Ex. B, Grantham Aff.

at 4; Doc. No. 68-5, Ex. D, Compl.) Neither Chief Parrish nor Officer Miller took part in

preparing, signing or swearing to the complaint against Walker. (Doc. No. 68-2, Ex. B,

Grantham Aff. at 4-5; Doc. No. 68-1, Ex. A, Parrish Aff. at 2.)

On October 21, 2011, Walker pled not guilty to the charge of obstruction of

governmental operations in the Dothan Municipal Court and a trial was held. (Doc. No.

68-9, Ex. E, Municipal Court Case Disposition.) Officer Grantham testified at the trial.

(Doc. No. 68-2, Ex. B, Grantham Aff. at 4-5.) Neither Chief Parrish nor Officer Miller

testified or assisted in any way in the municipal court trial. (Doc. No. 68-2, Ex. B,

Grantham Aff. at 4-5; Doc. No. 68-1, Ex. A, Parrish Aff. at 2.) After trial, the municipal

judge found Walker guilty and sentenced him to 30 days in jail with execution of the

sentence suspended for two years. (Doc. No. 68-9, Ex. E, Municipal Court Case

Disposition.) The municipal judge also ordered Walker to pay a fine of two hundred and

fifty dollars ($250.00) and ordered him to pay court costs. (Id.)

On October 26, 2011, Walker appealed his conviction to the Houston County Circuit

Court for trial de novo. (Doc. No. 68-7, Ex. F, Notice of Appeal.) On March 8, 2016,

Walker’s appeal was tried before a jury in the Circuit Court of Houston County. (Doc. No.

68-3, Ex. C, Circuit Court Tr.; Doc. No. 68-2, Ex. B, Grantham Aff. at 4.) Officer

Grantham was the sole witness for Dothan at the trial. (Doc. No. 68-2, Ex. B, Grantham

Aff. at 4-5; Doc. No. 68-3, Ex. C, Circuit Court Tr. at 3, 30–49, 106–119.) Neither Chief

Parrish nor Officer Miller testified or assisted in any way in Walker’s circuit court trial.

(Doc. No. 68-2, Ex. B, Grantham Aff. at 4-5; Doc. No. 68-1, Ex. A, Parrish Aff. at 2.)

Walker was found not guilty by the jury and was discharged by Houston County Circuit

Judge Brad Mendheim. (Doc. No. 68-4, Ex. C, Circuit Court Tr. at 141; Doc. No. 68-8,

Ex. G, Verdict.)

Walker filed this action against the City of Dothan, Chief Parrish, and Officer Miller

on March 12, 2018, alleging claims of false arrest, unlawful search, false imprisonment,

failure to train, and malicious prosecution. (Doc. No. 1.) Walker received leave to amend

his Complaint twice (Docs. No. 12, 30) and filed his Second Amended Complaint on July

27, 2018 (Doc. No. 31). The Second Amended Complaint alleges two claims against the

City of Dothan, Chief Parrish and Officer Miller: (1) malicious prosecution in violation of

the Fourth and Fourteenth Amendments to the United States Constitution, and (2)

malicious prosecution under Alabama state law, through the Fourth and Fourteenth

Amendments to the United States Constitution. (Doc. No. 31 at 6-8.) Walker seeks

compensatory damages in the amount of $100,000, punitive damages in the amount of

$300,000, attorney’s fees, and any further relief deemed appropriate by this court. (Id. at

8.)

III. JURISDICTION

This Court has subject matter jurisdiction over Walker’s federal claim pursuant to

28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction over his state law claims

pursuant to 28 U.S.C. § 1367. The parties do not contest personal jurisdiction or venue,

and there are adequate allegations to support both. See 28 U.S.C. § 1391.

IV. DISCUSSION

A. Statute of Limitations Bars Walker’s Federal Claim

In Count One of his Second Amended Complaint, Walker alleges under 42 U.S.C.

§ 1983 that Defendants City of Dothan, Chief Parrish, and Officer Miller (collectively

“Defendants”) violated his Fourth and Fourteenth Amendment right “to be free of

unwarranted prosecution” following the dismissal of his obstruction of governmental

operations arrest and charge. (Doc. No. 31 at 6.) Defendants move for summary judgment,

arguing inter alia that Walker’s § 1983 claim fails because his claim is barred by the statute

of limitations. (Doc. No. 68 at 8.)

Walker was charged with obstruction of governmental operations on April 2, 2010,

and he was convicted following a bench trial on October 21, 2011. (Doc. No. 68-5, Ex. D,

Compl.; Doc. No. 68-9, Ex. E.) Walker appealed his conviction to the Houston County

Circuit Court. (Doc. No. 68-7, Appeal.) According to the Second Amended Complaint,

Walker’s de novo appeal was tried before a jury on March 10, 2016, where he was found

not guilty and his case was dismissed. (Doc. No. 31 at 7.) Walker filed his Complaint in

this Court on March 12, 2018.2 (Doc. No. 1.)

Contrary to Walker, Defendants aver in their motion for summary judgment that the

appellate verdict in favor of Walker occurred on March 8, 2016, and attach the verdict form

supporting their assertion. (Doc. No. 68 at 9; Doc. No. 68-8 at 1.) Thus, Defendants argue

2 As Defendants admit that March 10, 2018, occurred on a Saturday, pursuant to Federal Rule of

Civil Procedure 6(a)(1)(C), the filing of Walker’s Complaint on Monday, March 12, 2018, would

be considered timely if the statute of limitation began to accrue on March 10, 2016.

that the March 12, 2018, filing of Walker’s Complaint was untimely and his malicious

prosecution claim is barred by the two-year statute of limitations. Id.

In response, Walker does not dispute that the correct date of the verdict in his favor

was March 8, 2016, but argues that pursuant to Alabama law, a claim for malicious

prosecution does not begin to accrue “until the time of filing a notice of appeal in the

underlying case has expired.” (Doc. No. 73 at 2). Walker asserts that pursuant to Alabama

law his claim did not begin to accrue until the 42-day deadline to file a notice of appeal

had expired, which would fall on April 19, 2016. Walker relies on McConico v. Patterson

in which the court notes that the Supreme Court of Alabama has held that “‘a malicious

prosecution action does not accrue until the time for filing a notice of appeal in the

underlying case has expired; and, if an appeal is taken, the action for malicious prosecution

will not accrue until the appeal has been finally decided.’” 204 So. 3d 409, 415 (Ala. Civ.

App. 2016) (quoting Barrett Mobile Home Transp., Inc. v. McGugin, 530 So. 2d 730, 733

(Ala. 1988)).

There is no specific statute of limitations for a § 1983 action. Owens v. Okure, 488

U.S. 235, 239 (1989). “All constitutional claims brought under § 1983 are tort actions and,

thus, are subject to the statute of limitations governing personal injury actions in the state

where the § 1983 action has been brought.” Boyd v. Warden, Holman Corr. Facility, 856

F.3d 853, 872 (11th Cir. 2017) (citing Wallace v. Kato, 549 U.S. 384, 387 (2007)). The

parties do not dispute that, in Alabama, the statute of limitations for a § 1983 action is two

years. See Lufkin v. McCallum, 956 F.2d 1104, 1106 n.2 (11th Cir. 1992).

To support a malicious prosecution claim, a plaintiff must show:

(1) institution or continuation of an original judicial proceeding, either civil

or criminal; (2) by or at the instance of the defendant; (3) termination of such

proceeding in plaintiff’s favor; (4) malice in instituting the proceeding; (5)

want of probable cause for the proceeding; and (6) injury or damage as the

result of the prosecution's complaint.

Kroger Co. v. Puckett, 351 So. 2d 582, 585 (Ala. Civ. App. 1977). Of importance to the

statute of limitations issue before the Court is the third of these elements which requires

termination of a judicial proceeding in Walker’s favor. Courts have consistently held that

a cause of action for malicious prosecution cannot accrue until a plaintiff can meet the

element that requires a judgment in their favor. See Heck v. Humphrey, 512 U.S. 477, 489–

90 (1994) (“Just as a cause of action for malicious prosecution does not accrue until the

criminal proceedings have terminated in the plaintiff’s favor, [. . .] so also a § 1983 cause

of action for damages attributable to an unconstitutional conviction or sentence does not

accrue until the conviction or sentence has been invalidated.”). Hence, in this case, the

earliest possible date that Walker’s malicious prosecution claim can accrue is March 8,

2016, when the Houston County Circuit Court returned a verdict in his favor and his

criminal case was discharged.

The Court considers Walker’s argument but is not persuaded as both McConico and

Barrett Mobile Home are distinguishable to the case at bar. In McConico, the court found

that the date that the plaintiff’s criminal case was nol-prossed was “the earliest possible

date the malicious-prosecution claim would have accrued,” and since the civil complaint

was filed one year and four months after that date, it was well within the two-year statute

of limitations period. 204 So. 3d at 415–16. The court never addressed the notice of appeal

deadline because it did not apply to the particular set of facts before the court.

On the other hand, while the court in Barrett Mobile Home addressed the notice of

appeal deadline issue at length, it is distinguishable from the instant case because the initial

case that served as the basis for the subsequent malicious prosecution action in Barrett

Mobile Home was a civil action, not a criminal prosecution. 530 So. 2d at 731. The

underlying action arose when the plaintiffs filed a civil suit against the defendant for

damages sustained during transport of the plaintiffs’ mobile home, along with

counterclaims filed by the defendant. Id. A jury found in favor of the plaintiffs on both

their claims as well as on the defendant’s counterclaims. Id. The defendant filed several

post-judgment motions and, while they were pending, the plaintiffs filed a separate

malicious prosecution action regarding the defendant’s counterclaims. Id. The Supreme

Court of Alabama noted that “the effect of an appeal from a favorable judgment in the

underlying proceeding on a plaintiff’s right to maintain an action for malicious prosecution

is one of first impression in Alabama.” Id. at 732. The court reviewed the differing lines

of case law with respect to the effect of the pendency of an appeal on meeting the third

element of a malicious prosecution claim. Id. In the interest of eliminating “repetitious

and unnecessary litigation,” the court held that “the pendency of an appeal will preclude

an action for malicious prosecution.” Id.

The Barrett Mobile Home court then turned to the question of the “appropriate

judicial response when the malicious prosecution plaintiff files the action prior to the time

the appeal is taken.” Barrett Mobile Home Transp., Inc., 530 So. 2d at 733 (emphasis in

original). The court stated:

[i]f a cause of action for malicious prosecution is deemed to accrue at the

entry of final judgment in the underlying case, any malicious prosecution

action filed in the period between the trial court’s entry of judgment and the

expiration of the time for filing a notice of appeal would be overshadowed

by the specter of the losing party’s right of appeal. Indeed, if that party filed

a notice of appeal, the malicious prosecution action would then be due to be

dismissed, since the proceedings would not be considered terminated until

after the appellate court’s decision.

[. . .]

[W]e follow those courts that have held that the accrual of a malicious

prosecution action is postponed until appeal is precluded, thus eliminating

the filing of needlessly premature cases. We agree that it is “a waste of

judicial resources and inequitable” to allow a malicious prosecution plaintiff

to file the action while there is a right to appeal extant.

Id. (citation omitted and emphasis added). Thus, the court held that “a malicious

prosecution action does not accrue until the time for filing a notice of appeal in the

underlying case has expired; and, if an appeal is taken, the action for malicious prosecution

will not accrue until the appeal has been finally decided.” Id. (emphasis added).

Here, Walker was convicted of his obstruction of governmental operations charge

following a bench trial on October 21, 2011. (Doc. No. 68-9, Ex. E.) Walker timely

appealed his conviction to the Houston County Circuit Court. (Doc. No. 68-7, Ex. F.)

Walker’s appeal was tried before a jury on March 8, 2016, where he was found not guilty

and he was discharged. (Doc. No. 68-8, Ex. G, Verdict.) Walker filed his Complaint in

this Court on March 12, 2018. (Doc. No. 1.) Unlike in Barrett Mobile Home, Walker

timely appealed his conviction and his appeal was resolved in his favor prior to filing his

malicious prosecution action in this Court. No right to appeal the acquittal of Walker

existed. Indeed, in a civil action such as Barrett Mobile Home, both parties possess the

right to appeal the final judgment of the court; however, when a criminal action is

discharged in the criminal defendant’s favor following a “not guilty” jury verdict, there is

no possible appeal to be had by either party. Bravo-Fernandez v. United States, 137 S. Ct.

352, 358 (2016) (“In criminal cases, however, only one side (the defendant) has recourse

to an appeal from an adverse judgment on the merits. The Government ‘cannot secure

appellate review’ of an acquittal, . . . for ‘the Government is precluded from appealing or

otherwise upsetting such an acquittal by the Constitution’s Double Jeopardy Clause.’”).

Accordingly, the Court finds that Walker’s malicious prosecution action accrued on March

8, 2016, the date his conviction was reversed and his appeal was decided. See In re BFW

Liquidation, LLC, 471 B.R. 652, 667 (Bankr. N.D. Ala. 2012) (“There being no appeal

possible from the dismissal of the underlying criminal action against the plaintiff, her

malicious prosecution action accrued when her case was dismissed post-confirmation.”);

Hall v. Alabama, No. 2:09-CV-342-MHT, 2010 WL 582076, at *6 (M.D. Ala. Feb. 18,

2010) (holding that the § 1983 claim for malicious prosecution accrued upon the final

dismissal of the criminal proceedings); Kelly v. Serna, 87 F.3d 1235, 1240 (11th Cir. 1996)

(applying the malicious prosecution statute of limitations to a Bivens action and holding

that “[u]nder Heck and Abella, a Bivens claim accrues on the date a court of appeals of

competent jurisdiction reverses a conviction and no retrial is permitted”); Burgest v.

McAfee, 264 F. App'x 850, 852–53 (11th Cir. 2008) (holding that the malicious prosecution

claim began to accrue on the date the jury acquitted the plaintiff “and that acquittal

favorably terminated the criminal action”); Stewart v. City of Montgomery, No. 2:13-CV-

859-MEF, 2014 WL 2154203, at *3 (M.D. Ala. May 22, 2014) (holding that the criminal

proceeding was resolved in the plaintiff’s favor on the date that the judge dismissed the

criminal case after granting the government’s motion to nolle pross). Walker’s complaint

in this court was not filed until March 12, 2018, four days after the statute of limitations

had expired, therefore his Section 1983 claim is barred by the two-year statute of

limitations.3

B. Walker’s Federal Claim

Even if Walker’s Section 1983 claim were not barred by the statute of limitations,

he has failed to carry his burden of proof. In Count I of his Complaint, Walker alleges

under 42 U.S.C. § 1983 that Defendants violated his Fourth and Fourteenth Amendment

right “to be free from deprivation of liberty without due process of law” when Officer

Miller arrested him without probable cause, in bad faith, willfully, and beyond his

authority. (Doc. No. 31 at ¶¶ 22–25.) Defendants move for summary judgment, arguing

inter alia that Walker’s § 1983 claim fails because there is “no evidence sufficient to

establish a claim of malicious prosecution against Chief Parrish and Officer Miller,” and

Walker “has not established facts sufficient to impose municipal liability” against Dothan.

(Doc. No. 68 at 10-12, 17-18.) The Court agrees with Defendants.

1. Individual Liability of Chief Parrish and Officer Miller

Section 1983 imposes liability on anyone who, under color of state law, deprives a

person “of any rights, privileges, or immunities secured by the Constitution and laws.” 42

3 Notably, Walker did not provide any argument that would support equitable tolling of the statute

of limitations.

U.S.C. § 1983. “To establish a § 1983 malicious prosecution claim, the plaintiff must

prove two things: (1) the elements of the common law tort of malicious prosecution; and

(2) a violation of his Fourth Amendment right to be free from unreasonable seizures.”

Grider v. City of Auburn, Ala., 618 F.3d 1240, 1256 (11th Cir. 2010) (citing Wood v.

Kesler, 323 F.3d 872, 881 (11th Cir. 2003)). As previously stated, to support a malicious

prosecution claim, a plaintiff must show:

(1) institution or continuation of an original judicial proceeding, either civil

or criminal; (2) by or at the instance of the defendant; (3) termination of such

proceeding in plaintiff’s favor; (4) malice in instituting the proceeding; (5)

want of probable cause for the proceeding; and (6) injury or damage as the

result of the prosecution's complaint.

Kroger Co., 351 So. 2d at 585. Defendants challenge Walker’s ability to prove the first,

second, and fifth elements. 4 The Court addresses only the first two elements and finds that

Walker’s failure to prove these elements are fatal to his § 1983 claim for malicious

prosecution against Chief Parrish and Officer Miller.

Defendants aver that neither Chief Parrish nor Officer Miller instituted or continued

the criminal prosecution of Walker’s obstruction of governmental operations charge. (Doc.

No. 68 at 11.) Specifically, Defendants argue that Officer Grantham arrested Walker and

was “the sole witness for the city in the subsequent trials in both the City of Dothan

Municipal Court and the Houston County Circuit Court.” (Doc. No. 68 at 11.) In support

of their argument, Defendants submit the affidavit of Officer Grantham (Doc. No. 68-2),

4 Defendants also argue that Chief Parrish and Officer Miller are entitled to qualified immunity;

however, since this Court determines that summary judgment is due to be granted in favor of Chief

Parrish and Officer Miller due to Walker’s failure to establish a prima face case, the Court

pretermits discussion on qualified immunity.

the transcript of the Houston County Circuit Court jury trial (Docs. No. 68-3, 68-4), and

the criminal complaint signed and filed by Officer Grantham (Doc. No. 68-5).

Walker, however, asserts that Officer Miller was the arresting officer and instituted

the criminal proceeding against him. (Doc. No. 73 at 3.) Walker submits his own affidavit

(Doc. No. 73-1), and the affidavits of his wife (Doc. No. 73-2) and his son (Doc. No. 73-

3). The Walkers state in their affidavits that Officer Miller was the officer who arrested

Walker, and thus assert that Officer Miller initiated the criminal prosecution against Walker

at the time of the arrest. (Doc. No. 73 at 3; Doc. No. 73-1 at 1; Doc. No. 73-2 at 2.)

Additionally, Walker asserts that Defendants have not provided the “booking document to

show which officer initiated the incarceration at the jail” or “jail documents showing the

charge upon booking.” (Doc. No. 73 at 3.) Therefore, Walker asserts that there is a

“disputed issue of fact regarding who initially arrested him.” (Doc. No. 73 at 5.)

The only evidence presented to the Court on this issue consists of dueling affidavits.

It is well-settled law that the Court must “draw all inferences and review all evidence in

the light most favorable to the non-moving party.” Ft. Lauderdale Food Not Bombs v. City

of Ft. Lauderdale, 901 F.3d 1235, 1239–40 (11th Cir. 2018) (quoting Hamilton v.

Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012) (quotation marks

omitted and alteration adopted)). Thus, for the purposes of summary judgment, the Court

views the facts presented in a light most favorable to Walker, as the nonmoving party, and

accepts the statements contained in the affidavits submitted that Officer Miller was the

arresting officer on the scene of the March 30, 2010, traffic stop.

Nevertheless, regardless of which officer arrested Walker, the malicious prosecution

claim fails because the action that is the prerequisite for a successful claim ––the

commencement of a judicial proceeding by arraignment or indictment— was not

completed by Officer Miller. When the malicious prosecution arises from a plaintiff’s

warrantless arrest, as was the case here, the Eleventh Circuit has explained that “a

plaintiff’s warrantless arrest ‘cannot serve as the predicate deprivation of liberty because it

occurred prior to the time of arraignment, and was not one that arose from malicious

prosecution as opposed to false arrest.’ For purposes of a malicious-prosecution claim

when a warrantless arrest occurs, ‘the judicial proceeding does not begin until the party is

arraigned or indicted.’ ” Abercrombie v. Beam, 728 F. App’x 918, 927 (11th Cir.), cert.

denied, 139 S. Ct. 418 (2018) (quoting Kingsland v. City of Miami, 382 F.3d 1220, 1235

(11th Cir. 2004), abrogated on other grounds by Williams v. Aguirre, 965 F.3d 1147 (11th

Cir. 2020) (internal citations omitted)); see also Cottam v. City of Wildwood, 750 F. App’x

791, 795 (11th Cir. 2018), cert. denied sub nom. Cottam v. Pelton, 139 S. Ct. 1602 (2019)

(“Under the second prong, a § 1983 plaintiff must prove that he ‘was seized in relation to

the prosecution, in violation of his constitutional rights.’ In the case of a warrantless arrest,

this requires that the party was arraigned or indicted, not merely arrested.”) (internal

citations omitted).

For purposes of summary judgment, it matters not who arrested Walker, but rather

it is the Court’s responsibility to determine if Walker has made a showing sufficient to

establish that Officer Miller was involved in the actual institution or continuance of the

prosecutorial process. The uncontested facts show that on March 30, 2010, Officer Miller

was conducting a traffic stop with an unknown third party, when the Walkers approached

the scene. Although Officer Grantham was the officer who initially made contact with the

Walkers, Officer Miller interrupted his traffic stop to assist Officer Grantham. Accepting

Walker’s version of the events, Officer Miller then placed Walker under arrest and

transported him to the Dothan Municipal Jail.

Upon review of the record, there is no additional evidence that Officer Miller had

any further participation in the criminal case against Walker or the appeal thereof. It is

undisputed that on April 2, 2010, following the warrantless arrest, Officer Grantham

prepared a criminal complaint charging Walker with obstruction of governmental

operations. (Doc. No. 68-5.) It was this act of preparing and signing the criminal complaint

that was the vehicle to commence the criminal prosecution or judicial proceeding against

Walker which ultimately led to his arraignment, conviction and acquittal.5 (Doc. No. 68-

5 ; Doc. No. 68-9.) The record further indicates that it was Officer Grantham who attended

and testified as Dothan’s sole witness at Walker’s criminal trial before the Dothan

Municipal Court on October 21, 2011, and at the March 8, 2016, appeal before the Houston

County Circuit Court. (Doc. No. 68-3 at 30–49; Doc No. 68-4 at 106-119; Doc. No. 68-5;

Doc. No. 68-9.) Thus, it was Officer Grantham – not Officer Miller – who is clearly the

party responsible for the institution and continuation of the judicial proceeding and the

5 The Court notes that Case Number MC11-10-531 notated on the April 2, 2010, complaint

matches the case number on the document used by Dothan Municipal Court during the October

21, 2011, arraignment and trial which establishes that the criminal complaint prepared and signed

by Officer Grantham was the charging document tied to the prosecution of Walker. (See Doc. No.

68-5; Doc. No. 68-9.)

alleged malicious prosecution.6 Accordingly, Walker has failed to show that there was an

institution or continuation of a judicial proceeding by or at the instance of Officer Miller

and thus failed “to make a showing sufficient to establish the existence of an element

essential to his case, and on which [he] bear[s] the burden of proof at trial.” Celotex Corp.,

477 U.S. at 322. Consequently, Officer Miller is entitled to summary judgment on

Walker’s § 1983 claim for malicious prosecution.

Likewise, Walker has failed to show how Chief Parrish instituted or continued the

criminal prosecution and the Court finds nothing contained within the record to support his

involvement in the initiation or continuation of the prosecution. “Supervisory liability

occurs either when the supervisor personally participates in the alleged constitutional

violation or when there is a causal connection between actions of the supervising official

and the alleged constitutional deprivation.” Ross v. State of Ala., 15 F. Supp. 2d 1173,

1192 (M.D. Ala. 1998). In his Second Amended Complaint, Walker asserts that on the

date of the arrest, Chief Parrish “maintained a system of grossly inadequate training

pertaining to the law of permissible arrests and such program fails to meet standard police

training principals and criteria.” (Doc. No. 31 at 5.) To the contrary, Defendants present

an affidavit from Chief Parrish establishing that on March 30, 2010, he was neither the

6 On September 25, 2019, after expiration of the discovery deadline on September 16, 2019,

Walker requested leave to file a third amended complaint in which he sought to add Officer

Grantham as a party defendant and identify both Officer Miller and Officer Grantham as the

arresting officers. (Doc. No. 64.) The motion was denied by the Court for Walker’s failure to

exercise diligence in naming a defendant whom had been known to Walker since his March 30,

2010, arrest and whom Walker knew was the sole officer who signed the criminal complaint and

the sole witness in both criminal trials. (Doc. No. 71.)

chief of the Dothan Police Department nor was he responsible for the supervision or

training of Dothan police officers. (Doc. No. 68-1 at 2.) This affidavit remains unrefuted

as Walker has not provided any argument nor evidence regarding Chief Parrish’s role in

the malicious prosecution. Walker’s conclusory allegations in his Second Amended

Complaint, which are unsupported by specific evidence, do not create an issue of fact for

trial. See Celotex Corp., 477 U.S. at 324 (“Rule 56(e) [. . .] requires the nonmoving party

to go beyond the pleadings and [. . .] designate ‘specific facts showing that there is a

genuine issue for trial.’”). Walker has wholly failed to show that there was an institution

or continuation of a judicial proceeding by or at the instance of Chief Parrish and thus failed

“to make a showing sufficient to establish the existence of an element essential to his case,

and on which [he] bear[s] the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.

Consequently, Chief Parrish is entitled to summary judgment on Walker’s § 1983 claim

for malicious prosecution.

2. Municipal Liability of the City of Dothan

Finally, Defendants argue that Walker has not established sufficient facts to impose

municipal liability against Dothan “for the alleged malicious prosecution by its employees

using the theory of respondeat superior.” (Doc. No. 68 at 17.) Defendants assert that “[i]n

order to impose municipal liability under § 1983, a Plaintiff must allege facts showing: ‘(1)

that his constitutional rights were violated; (2) that the municipality had a custom or policy

that constituted deliberate indifference to that constitutional right; and (3) that the policy

or custom caused the violation.’” (Id. (quoting McDowell v. Brown, 392 F.3d 1283, 1289

(11th Cir. 2004))).

In response to the motion for summary judgment, Walker argues that he “is not

trying to impose respondent superior liability against the City of Dothan, but alleges the

City of Dothan violated his constitutional rights by its own custom and policy of deliberate

indifference.” (Doc. No. 73 at 7.) Walker asserts that the custom or policy at issue is

“allowing the city manager, rather than the mayor to appoint special sitting judges, is the

moving force behind [the] constitutional depravation, since the appointment for the person

who allegedly judged [him] had no legal authority to do such.” Id. Walker further argues

that because of the “city’s own negligence and deliberate indifference by failing to correct

its custom or policy of appointing judges, the City of Dothan is liable, directly, for its role

in [his] prosecution . . . .” Id.

Walker has clearly changed course from his Second Amended Complaint. In his

Second Amended Complaint, he alleges that Dothan is liable due to “inadequate training

pertaining to the law of permissible arrests” and such “failure to train was done with

deliberate indifference.” (Doc. No. 31 at ¶¶ 28, 30.) The Second Amended Complaint

does not include any allegations pertaining to the inappropriate appointment of judges.

Walker “may not amend [his] complaint through argument in a brief opposing summary

judgment.” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004)

(citation omitted) (finding new claims may not be raised by a non-movant in response to a

summary judgment motion). Therefore, this Court cannot consider Walker’s newly-

alleged inappropriate appointment of judges claim.

The Court considers Walker’s § 1983 claim against Dothan as alleged in the Second

Amended Complaint and finds Walker has failed to adduce any evidence from which a

reasonable jury could conclude there is a “direct causal link between a municipal policy or

custom and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378,

385 (1989) (“[O]ur first inquiry in any case alleging municipal liability under § 1983 is the

question whether there is a direct causal link between a municipal policy or custom and the

alleged constitutional deprivation.”). Walker bases his municipal liability claim on

Dothan’s failure to train its officers as to the law of permissible arrests, searches and

imprisonments. (Doc. No. 31 at ¶¶ 28, 29, 30.) Yet the Supreme Court has held that a

“pattern of similar constitutional violations by untrained employees is ‘ordinarily

necessary’ to demonstrate deliberate indifference for the purpose of failure to train.” See

Connick v. Thompson, 563 U.S. 51, 62 (2011). “Without notice that a course of training is

deficient in a particular response, decisionmakers can hardly be said to have deliberately

chosen a training program that will cause violations of constitutional rights.” Id.

Walker has alleged no facts nor presented any evidence to show any prior incidents

of false arrests for obstruction of governmental operations, unlawful searches or false

imprisonments that would put Dothan on notice of any need for training. Walker has

presented no evidence sufficient to create a triable issue of fact. Because there are no facts

in the record to support it, Walker’s municipal liability theory against Dothan fails and

summary judgment is due to be granted in favor of Dothan.

C. Walker’s State Law Claim

Having disposed of Walker’s federal law claim, the court now turns to his remaining

state law claim for malicious prosecution. Pursuant to 28 U.S.C. § 1367(a), in any civil

action in which a federal district court has original jurisdiction, the district court shall have

supplemental jurisdiction over all other claims that are so related to claims in the action

within such original jurisdiction that they form part of the same case or controversy under

Article III of the Constitution. Thus far, the Court has exercised supplemental jurisdiction

over Walker’s state law claim based on the Court’s original jurisdiction over his federal

law claim. 28 U.S.C. § 1367(a). However, where the district court “has dismissed all

claims over which it has original jurisdiction,” the court may decline to exercise

supplemental jurisdiction over any remaining claims. 28 U.S.C. § 1367(c). “Where §

1367(c) applies, considerations of judicial economy, convenience, fairness, and comity

may influence the court’s discretion to exercise supplemental jurisdiction.” Baggett v.

First Nat’l Bank of Gainesville, 117 F.3d 1342, 1353 (11th Cir. 1997). The Eleventh

Circuit has “encouraged district courts to dismiss any remaining state claims when, as here,

the federal claims have been dismissed prior to trial.” Raney v. Allstate Ins. Co., 370 F.3d

1086, 1088–89 (11th Cir. 2004). See also Kamel v. Kenco/The Oaks at Boca Raton LP,

321 F. App'x 807, 811 (11th Cir. 2008) (referring to as “well settled in our circuit” that

district courts should dismiss state law claims when the federal claims are dismissed).

In granting Defendants’ motion for summary judgment, the Court dismisses

Walker’s federal law claim. As a result, there are no remaining claims over which the

Court may exercise original jurisdiction. Considering the relevant factors, the Court finds

that the state law claim remaining in this action is best resolved by the Alabama state courts.

The remaining claim raises issues of state law only that do not implicate federal interests

in any manner. Further, because 28 U.S.C. § 1367(d) tolls the state statute of limitations,

there is no unfairness to Walker resulting from dismissal. Accordingly, the Court declines

to exercise supplemental jurisdiction over Walker’s remaining state law claim against

Defendants and dismisses the claim without prejudice to his right to pursue it in state court.

V. CONCLUSION

For the foregoing reasons, it is hereby

ORDERED as follows:

1. Defendants’ Motion for Summary Judgment (Doc. No. 67) is GRANTED as

to Count I of the Second Amended Complaint.

2. Count I of the Second Amended Complaint is DISMISSED with prejudice.

3. Count II of the Second Amended Complaint is DISMISSED without prejudice.

A separate judgment will be entered.

DONE this 21st day of December, 2020.

/s/ Jerusha T. Adams

JERUSHA T. ADAMS

UNITED STATES MAGISTRATE JUDGE