Smith v. The City of Dothan, Alabama

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

JASMINE CORDELIA SMITH, )

)

Plaintiff, )

)

v. ) Case No. 1:19-cv-86-RAH

)

CITY OF DOTHAN, ALABAMA, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

“Oh, What A Tangled Web We Weave; When First We Practice To

Deceive,”1 at least so say the Defendants in this case. Plaintiff Jasmine Cordelia

Smith (“Plaintiff” or “Smith”) claims there was no deceit, nor any criminal conduct

worthy of the charges that were filed against her and lie at the heart of this case. The

tangled web presented here, however, was highly suspicious at best, and criminal at

worst. But for summary judgment purposes, the conduct at issue, at a minimum,

provided sufficient arguable probable cause that a crime had been committed,

thereby serving as a roadblock to Smith’s claims going any further in this case.

On January 28, 2019, Smith filed a seven-count complaint alleging that the

City of Dothan, Alabama (“the City”), its Chief of Police, Steve Parrish (“Chief

Parrish”), Detective Terry Nelson (“Detective Nelson”) (collectively, the “City

1 From Sir Walter Scott’s epic poem, Marmion, A Tale of Flodden Field. Canto VII, Stanza 17.

Defendants”), and Acceptance Loan Company, Inc. (“Acceptance”), had wrongfully

arrested Smith, defamed her, violated her constitutional rights, and acted negligently

toward her in connection with a criminal theft of property charge filed by Detective

Nelson concerning a 1997 Chevrolet Geo (“Geo”).

Counts 1 through 4 of the Complaint are directed against the City Defendants.

Count One alleges that Smith was unlawfully arrested and seized without probable

cause by Detective Nelson in violation of the Fourth Amendment; Count Two

alleges that Chief Parrish negligently supervised Detective Nelson, thereby leading

to a violation of the Fourth Amendment; Count Three alleges that Detective Nelson,

with the assistance of Chief Parrish and the City, maliciously prosecuted Smith for

theft in violation of the Fourth Amendment; and Count Four alleges state law

malicious prosecution.

Counts Five through Seven are directed against Acceptance, a private business

entity, and generally allege that Acceptance slandered (Count Five), libeled (Count

Six), and acted negligently toward Smith (Count Seven) by falsely representing to

the City Defendants that Smith, through forgery, had wrongfully removed

Acceptance’s lien from the certificate of title to the Geo.

This matter comes before the Court on two separate motions for summary

judgment: one filed by the City Defendants, (Doc. 46), and one filed by Acceptance,

(Doc. 37). Upon consideration, the motions are due to be GRANTED as to all

counts.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper “if there is no genuine issue as to any material

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

Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Fed. R. Civ. P. 56(a). The party

asking for summary judgment “always bears the initial responsibility of informing

the district court of the basis for its motion,” relying on submissions “which it

believes demonstrate the absence of a genuine issue of material fact.” Id. at 323.

Once the moving party has met its burden, the nonmoving party must “go beyond

the pleadings” and show that there is a genuine issue for trial. Id. at 324. Both the

party “asserting that a fact cannot be,” and a party asserting that a fact is genuinely

disputed, must support their assertions by “citing to particular parts of materials in

the record,” or by “showing that the materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot produce admissible

evidence to support the fact.” Fed. R. Civ. P. 56 (c)(1)(A), (B).

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, 586 (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 v. Liberty Lobby, 477 U.S. 242, 255 (1986).

BACKGROUND

Smith’s Complaint vaguely alleges only a few facts. On March 9, 2017, Smith

claims Detective Nelson, without probable cause, signed a criminal complaint

charging Smith with theft of property (in particular, $2,273.81 in U.S. currency),

caused the local magistrate to issue an arrest warrant that later was dismissed for “no

probable cause,” and caused Smith to lose her job with the Cobb County Board of

Education. (Doc. 1 at 3-4.) Unsurprisingly, the Complaint is totally devoid of the

facts leading up to the criminal charge filed by Detective Nelson. As a result, the

pertinent facts, for summary judgment purposes, are taken from the record evidence,

which Smith largely does not dispute and glaringly chooses to ignore.

On July 18, 2006, Smith entered into a title loan, with a 36-month repayment

plan, with Acceptance in Dothan, Alabama and expressly granted Acceptance a

security interest in her Geo. (See Docs. 38-5; 47 at 1.) On August 22, 2006, the

Alabama Department of Revenue (ADOR) issued a new certificate of title for the

Geo that listed Smith as the owner and Acceptance as the lienholder. (Docs. 38-5 at

30; 47 at 1; 47-18 at 1.) Acceptance was to retain possession of the certificate until

such time as Smith paid off the loan. Smith, however, never fully repaid the loan.

(Doc. 47 at 2.)

The next year, 2007, Smith moved to Georgia, where she would remain until

2015. (See id.) Although she resided in Georgia, between 2010 and 2015, Smith

registered the Geo with the local tag office in Houston County, Alabama and

identified her residence address as 1005 Eugene St., Dothan, Alabama. (Id.; Doc.

47-25 at 1-6.)

On August 2, 2016, the ADOR received an application for a replacement title

for the Geo purportedly signed by Smith. (See Docs. 47 at 2; 47-26 at 2-3.) The

application listed Smith as the owner of the Geo and gave a different address in

Dothan, but represented that there was no lienholder. (Doc. 47-26 at 2-3.) The

application bore Smith’s purported signature and was signed under the

representation that the information contained in it was true and correct and that any

false statement made with an intent to defraud was a felony under Alabama law.

(Doc. 47-26 at 3.)

In reliance upon the information contained in the signed application, the

ADOR issued a replacement certificate of title showing Smith as the owner of the

Geo with no lienholder. (Docs. 47 at 2; 47-10 at 1.)

Six weeks later, on September 22, 2016, Thomas Holston, Smith’s boyfriend,

submitted an application for a new title for the Geo at the tag office in Houston

County, Alabama. (See Doc. 47 at 3.) Holston presented a bill of sale and endorsed

certificate of title, both of which bore Smith’s purported signature. (See Docs. 47-7

at 3; 47-10 at 2; 47-11.) In reliance on the transactional documents provided by

Holston, the ADOR issued a new title showing Holston as the owner of the Geo.

(See Docs. 47 at 3; 47-12.)

Four days later, on September 26, 2016, Smith attempted to renew the tag for

the Geo at the tag office in Houston County, Alabama. (See Doc. 47-30 at 8.) There,

Smith was told that someone already had obtained the tag for the Geo. (See id.)

After requesting the documentation, Smith was provided a copy of the bill of sale

and title that showed Smith’s purported signatures and her conveyance of the Geo

to Holston. (See id.) Claiming that Holston was her ex-boyfriend, the documentation

fraudulent, and her signature thereon a forgery, Smith reported Holston to the

Dothan City Police Department for fraud. (See id.)

Detective Terry Nelson was assigned the case. (See Doc. 47 at 6.) Among

other activities, Detective Nelson spoke with Smith, who stated that she wanted to

press charges against Holston, whom she characterized as her “ex-boyfriend.” (See

Doc. 47-30 at 8.) Smith also told Nelson that Acceptance had possession of the

actual certificate of title for the Geo because the Geo was collateral for a loan with

Acceptance. (See id.)

Several months later, despite calling Holston an ex-boyfriend who had

committed fraud and forgery at her expense, Smith entered a TitleMax store in

Austell, Georgia with Holston by her side. (See Doc. 47-16 at 1.) There, in Smith’s

presence, Holston took out a loan from TitleMax and pledged the now-

unencumbered Geo as security using the certificate of title and purported

conveyance that Smith previously had reported to the Dothan authorities as

fraudulent. (See Doc. 47-15 at 1.) As a part of that transaction, Smith received $50

from TitleMax for referring Holston to TitleMax. (See Doc. 47-7 at 1.)

During the course of his investigation, Detective Nelson learned of the title

pawn involving TitleMax in Georgia. During a phone call to TitleMax on March 6,

2017, Detective Nelson spoke with a TitleMax representative who told him that she

had personally observed Holston and Smith enter the TitleMax store together on

December 14, 2016, that Holston in Smith’s presence pawned the title to the Geo,

and that Smith had received a $50 referral fee as part of the transaction. (See 47-16

at 1.) The representative also confirmed Smith’s identity through a photograph that

Detective Nelson sent her and confirmed that Smith even made a loan payment to

TitleMax on behalf of Holston. (See id.)

That same day, Detective Nelson called Acceptance about Smith and the Geo.

During the call, an Acceptance representative confirmed that Acceptance still had in

its possession the original certificate of title to the Geo and that Smith still owed

$2,273.81 on the loan. (See Docs. 47-18; 47-19.)

After these conversations, Detective Nelson issued a subpoena to TitleMax in

Georgia for documents associated with the Holston title pawn. In response,

TitleMax provided a copy of the $50 check to Smith, a copy of Smith’s driver’s

license, a copy of the pawn agreement between TitleMax and Holston, and a copy

of the payment receipt. (See Docs. 47-15; 47-16.) Reviewing these documents,

Nelson also observed that Holston and Smith both listed the same residence address

in Austell, Georgia. (See Doc. 47-15 at 1.)

Satisfied that Smith and Holston had been knowing parties to a crime,

Detective Nelson signed and filed theft warrants against Smith and Holston in

Houston County on March 9, 2017. (Doc. 47-30 at 9.) Finding probable cause, the

local magistrate issued a warrant for Smith’s arrest for Theft of Property, 2nd

Degree. (Docs. 47-20; 47-21.) This warrant was later dismissed for “no probable

cause” by the presiding district judge on June 2, 2017 after a preliminary hearing.

(Doc. 47-31.)

Smith filed this civil lawsuit on January 28, 2019. (See Doc. 1.)

DISCUSSION

The Court begins, as the Complaint does, with the allegations against the City

Defendants. The core of Smith’s first four counts is that, given the evidence and the

ultimate dismissal of the criminal theft charge against her for “no probable cause,”

the City Defendants violated her constitutional rights under the Fourth Amendment

when they filed, without probable cause, a criminal theft complaint against her.

(Doc. 1 at 1, 4, 6, 8, 9.) The next three counts, asserted against Acceptance, share a

similar theme; that Acceptance falsely accused Smith of fraudulently, and through

forgery, “delet[ing] Acceptance’s name as lien holders on the title to Plaintiff’s

vehicle.” (Doc. 1 at 11, 12, 13.) Because Detective Nelson had arguable probable

cause and because Smith has adduced nothing to show that Acceptance ever accused

her of forgery, the Defendants are entitled to summary judgment on all counts in the

Complaint.

1. Detective Nelson Had Arguable Probable Cause.

Of the many arguments for summary judgment raised by the City Defendants,2

the primary one is that Detective Nelson had probable cause, both actual and

arguable, to arrest Smith. Therefore, according to the City Defendants, because they

2 Because Smith has sued the City, her official capacity claims against Detective Nelson and

Parrish are duplicative and therefore due to be dismissed. See Kentucky v. Graham, 473 U.S. 159,

166 (1985).

had probable cause, they could not have violated the Fourth Amendment or any other

constitutional right that Smith may have had. Based on the facts and argument

presented, the Court concludes that the underlying actions of the law enforcement

officers are immunized by the existence of arguable probable cause.3

a. Claims of Unlawful Seizure and Negligent Supervision are defeated

by the lack of an underlying constitutional harm.

To establish municipal liability against a city, the officer through whom a

claim is vicariously asserted must commit an underlying constitutional harm. See

City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). To establish a constitutional

harm and thereby abrogate the shield of qualified immunity, which applies to each

of the first three counts of the Complaint, Smith must show that Detective Nelson

did not have, at a minimum, arguable probable cause to arrest her. See Brown v.

City of Huntsville, 608 F.3d, 724, 735 (11th Cir. 2010); Holmes v. Kucynda, 321

F.3d 1069, 1079 (11th Cir. 2003). An arrest made without probable cause violates

the Fourth Amendment. See Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1137 (11th

Cir. 2007).

i. The Arguable Probable Cause Standard.

3 Because the Court is concluding that arguable probable cause existed, the Court pretermits

discussion of whether actual probable cause existed.

“Probable cause exists when the facts and circumstances, of which the official

has reasonably trustworthy information, would cause a prudent person to believe that

the suspect has committed, is committing, or is about to commit an offense.” Elmore,

605 F. App'x 906, 911 (11th Cir. 2015). As long as the circumstances known to the

arresting official, when viewed objectively, can “give probable cause to arrest for

any crime, the arrest is constitutionally valid even if probable cause was lacking as

to some offenses, or even all announced charges.” Id. at 914 (citing Devenpeck v.

Alford, 543 U.S. 146, 153–55 (2004)) (emphasis added).

The law does not “automatically hold an [official] liable for making an arrest

that, when seen with the benefit of hindsight, turns out not to have been supported

by probable cause.” Skop, 485 F.3d at 1137. Because officials will, in some cases,

“reasonably but mistakenly conclude that probable cause is present,” the law does

not hold those officials personally liable for their mistaken judgment. Id. (quoting

Anderson, 483 U.S. at 641).

Under this principle, the Eleventh Circuit has clarified that officers are entitled

to qualified immunity even if they did not have probable cause to arrest as long as

they had arguable probable cause, which exists if “reasonable officers in the same

circumstances and possessing the same knowledge as the Defendant could have

believed that probable cause existed to arrest.” Gonzalez v. Butts County, GA., 522

F.App’x 742, 746 (11th Cir. 2013)(quoting Skop, 485 F.3d at 1137). Arguable

probable cause encompasses any situation where an officer reasonably could have

believed that probable cause existed in light of the information he possessed. See

Wood v. Kesler, 323 F. 3d 872, 881–882 (11th Cir. 2003).

Notably, the “validity of an arrest does not turn on the offense announced by

the offic[ial] at the time of the arrest.” Gonzalez v. Butts Cty., 522 F. App'x 742, 746

(11th Cir. 2013) (quoting Bailey v. Bd. of Cty. Comm'rs of Alachua Cty., 956 F.2d

1112, 1119 n.4 (11th Cir. 1992)). If the arresting official had arguable probable cause

to arrest for any offense, qualified immunity will still protect the official. Croland,

782 F. App'x 753, 757 (11th Cir. 2019). However, “a constitutional arrest must be

based on a reasonable belief that a crime has occurred, rather than simply unwanted

conduct.” Id. (quoting Wilkerson v. Seymour, 736 F.3d 974, 978 (11th Cir. 2013)).

The question then is whether Detective Nelson could have reasonably

believed that a crime had occurred given the facts available and made known to him.

ii. Smith’s Own Undisputed Actions Were Sufficient to

Create Arguable Probable Cause.

Smith argues that the City Defendants lacked probable cause to arrest her for

theft of property, second degree, see Ala. Code §13A-8-4, a charge that was

subsequently dismissed by a state court judge for “no probable cause.” (Doc. 47-31.)

The Court need not decide whether probable cause existed to file the theft of property

charge because the facts presented show that the City Defendants possessed arguable

probable cause.4

In their summary judgment motion, the City Defendants argue that Detective

Nelson, aside from having actual probable cause for the theft of property charge that

he did file, also had arguable probable cause for other criminal offenses, such as

Alabama Code § 32-8-11 (aiding and abetting a violation of § 32-8-12 and § 32-8-

13). Under Alabama Code § 32-8-11, a person is guilty of aiding and abetting a

violation of § 32-8-12, which makes it a felony for someone who, with fraudulent

intent, alters or forges a certificate of title, or an assignment or release of a security

interest, on a certificate of title or a form the department prescribes. See, e.g., Lucas

v. State, 406 So. 2d 1070, 1073 (Ala. Crim. App. 1981) (holding that a defendant

was properly sentenced for violating § 32-8-12 in connection with a criminal charge

for fraudulently having a lienholder removed from a title). Similarly, under § 32-8-

11, a person is guilty of aiding and abetting a violation of § 32-8-13(4), which makes

it a crime for someone to knowingly and willfully commit a fraud in any application

for a title or registration.

4 According to the record, Detective Nelson charged Smith with the theft of $2,273.81 in U.S.

currency, which apparently was the outstanding balance of Smith’s loan with Acceptance. In

reality, Smith did not steal $2,273.81 from Acceptance, or anyone else. Instead, the charged

conduct, among other things, deprived Acceptance of the ability to use its lien/security interest in

the Geo, and the original certificate of title, as a means of satisfying the $2,273.81 debt.

Additionally, it is a crime in Alabama to make a false report to law

enforcement officials under Alabama Code § 13A-10-9, and Smith’s uncontested

role in Holston’s pawn of the Geo strongly suggests that her report to Detective

Nelson about Holston’s forgery was not an honest one. Of course, this conduct also

gives rise to criminal conspiracy under Alabama Code § 13A-4-3.

The summary judgment evidence, which Smith largely has not contested or

addressed in her summary judgment response, shows that Detective Nelson had

evidence that Smith was a knowing and willing participant in a scheme5 whose

purpose was to release Acceptance’s security interest in the Geo and then use that

now-unencumbered vehicle to obtain a new loan from an altogether different

company using the Geo as collateral. In an effort to create distance between her and

the Geo, on paper, the scheme further involved conveying the Geo out of Smith’s

name in Alabama and then pawning the unencumbered title in a different state under

the name of a different person. In effect, this process deprived Acceptance of the

ability to use (seize or repossess) the Geo to satisfy Smith’s debt and arguably

5 It is not uncommon for people to enter the arena of criminal malfeasance by failing to disclose

past title encumbrances. See, e.g., State v. Young, 711 A.2d 134, 136 (man convicted of

intentionally failing to disclose encumbrances on a parcel of land); People v. Jory, 505 N.W.2d

228, 236 (1993) (overturning conviction for lack of intent but noting that it is a crime to purposely

fail to disclose the existence of an encumbrance.); U.S. v. Boliaux, 915 F.3d 493 (7th Cir. 2019)

(describing scheme where defendant lied to obtain a duplicate certificate of title for cars he knew

were financed by one lender, and used the duplicate titles to obtain additional financing from a

second lender, thereby compromising the security interests of and cheating both lenders);

Marshall v. U.S., No. 3:17-cv-573-FDW, 2018 WL 443001 (W.D.N.C. Jan. 16, 2018).

allowed Holston and Smith to obtain additional moneys from a Georgia company

that they otherwise could not have obtained. Detective Nelson perceived this scheme

as constituting a theft of property (funds) from Acceptance because it essentially

stole Acceptance’s ability to use the Geo (lien) as a means of satisfying its debt.

In addition, Detective Nelson had evidence that Holston forged Smith’s name

on a bill of sale and certificate of title. Indeed, Smith alleged as much to Detective

Nelson. Then, according to the evidence obtained by Detective Nelson, only a few

weeks later, Smith accompanied Holston to a Georgia title pawn company and

knowingly witnessed Holston pawn the title to a vehicle that Smith had previously

claimed was fraudulently obtained by Holston, all for the purpose of obtaining

money from the Georgia company.6

While not charged with such conduct, the City Defendants point out that these

facts expose Smith to criminal claims associated with the fraudulent release of a

security interest, forging a signature on a certificate of title, committing fraud in an

application for title and registration, and knowingly (aiding and abetting)

participating in efforts to use a fraudulently procured, unencumbered title for the

purpose of obtaining money.

6 In her affidavit, the TitleMax representative stated that she would not have entered into the pawn

agreement with Holston had she known about the Acceptance loan or Smith’s previous allegations

to the local authorities that her signature on the application for title and bill of sale were forgeries.

(Doc. 47-1 at 5.)

In her summary judgment response, Smith does not dispute the key facts. In

fact, she largely ignores them. That is, she does not dispute that Acceptance had

possession of the original certificate of title, that she never paid off the Acceptance

debt, that she applied for a replacement title for the Geo that did not reflect the

Acceptance lien, that someone purportedly signed (or forged) her name on a bill of

sale and the replacement certificate of title, that she told Detective Nelson that her

signature was forged by her ex-boyfriend, that she and Holston, within weeks of her

conversation with Detective Nelson, entered a title pawn company in Georgia and

pawned the title to the Geo, or that she received $50 for the transaction.

In her summary judgment responses, Smith completely ignores the facts

surrounding her presence with Holston at the Georgia pawn transaction and the

earlier claim to Detective Nelson that Holton had committed forgery. Her decision

to ignore these facts not only renders them undisputed, but casts a large shadow over

any assertion by Smith that there was otherwise no wrongdoing on her part.

Instead, Smith justifies her actions by arguing that the Acceptance debt was

stale and unenforceable7 because the Geo was over 12 years old. (See Doc. 48 at 7.)

7 Smith claims that because her credit report showed that Acceptance had written, or charged, off

the debt, the debt was not enforceable against her. (Doc. 41 at 7.) An internally charged-off debt

does not mean a debt is unenforceable against the debtor. See, e.g., In re Rodriguez, 555 B.R. 871,

875 (Bankr. S.D. Fla. 2016) (citing In re Diaconx Corp., 69 B.R. 333 (Bankr. E.D. Pa. 1987), for

the proposition that the “unilateral action of a bank's accounting department in writing off a debt

as uncollectible internally on its books” did not preclude enforcement of the obligation)). See also

Ramirez v. Palisades Collection LLC, No. 7-C-3840, 2008 WL 2512679, at *1 (N.D. Ill. June 23,

Whether true or not,8 for arguable probable cause purposes, the record remains

uncontested as to the key facts that, as already stated, support arguable probable

cause. Indeed, even in the light most favorable to Smith, these facts supported a

reasonable belief that there was a scheme9 to cheat Acceptance out of its lien and its

ability to use the Geo as a means of satisfying Smith’s debt, as well as to fraudulently

obtain loan funds from TitleMax using a vehicle that was actually encumbered. As

Detective Nelson’s testimony made clear, Smith’s actions are not consistent with

someone who truly believed she had been the victim of a fraud perpetrated by an ex-

boyfriend. Simply put, the tangled web spun by the undisputed facts supported

arguable probable cause for the arrest of Smith.

2008) (describing a company that purchases charged off credit card debt and enforces that debt

against consumers, because charged off debt is still legally collectable).

8 Whether stale or not, such a legal conclusion does not lessen the criminality of a forgery of a

certificate of title or security interest release or a false report to the policing authorities. See Rice

v. State, 117 So. 502, 503 (Ala. App. 1928) (holding that it was permissible for the state of Alabama

to bring a criminal case for forgery based on the testimony of a party that the signature appearing

on the document was not theirs). Nor does it explain or lend legitimacy to Smith’s statements to

Detective Nelson that the purported conveyance from Smith to Holston was fraudulent because

Smith’s signature was forged on a bill of sale and certificate of title by her ex-boyfriend; yet within

weeks, Smith and Holston, unbeknownst to Detective Nelson, entered a title pawn company in

Georgia where Holston used the fraudulently obtained title to obtain a loan against the title.

9 That some of the acts occurred in Georgia is without legal consequence. As the Eleventh Circuit

recently noted, see Everette v. Cobb County, GA, 2020 WL 4917581, at *4 (11th Cir. Aug. 21,

2020), it has long been understood that a state's constitutional authority encompasses punishment

for crimes committed out of the state that were intended to produce harm within the state. There

is no doubt that the harm associated with pawning the Geo in Georgia was intended to affect

Acceptance in Alabama.

Having found that arguable probable cause exists, the Court then moves to the

other element of the qualified immunity test, which is easily satisfied: that Detective

Nelson and Chief Parrish were operating within the scope of their employment

duties. See Grider v. City of Auburn, Ala., 618 F.3d 1240, 1267 (11th Cir. 2010)

(holding that “investigating and prosecuting violations of the law “clearly fall[s]

within the scope of official duties of a law enforcement officer”). The record shows

that Chief Parrish was acting in his capacity, at all times relevant to the Complaint,

as the Chief of the City Police Department by supervising Detective Nelson. See,

e.g., Paez v. Mulvey, 915 F.3d 1276, 1284 (11th Cir. 2019) (holding that a police

sergeant was at all times acting within the scope of her discretionary authority in the

supervision of officers). In this endeavor, the Court need go no further than consider

the fact that Detective Nelson was investigating criminal activity that Smith, herself,

reported. (See Doc. 47-30 at 7.)

Because both Detective Nelson and Chief Parrish are entitled to qualified

immunity, neither they nor the City are liable for allegedly violating Smith’s

constitutional rights against unlawful search and seizure. Because this is the

predicate for the first three counts of Smith’s Complaint, they are each entitled to

summary judgment.

b. Smith’s malicious prosecution claims are also defeated by arguable

probable cause.

Smith alleges malicious prosecution (Counts Three and Four) under both

federal and state law. Both claims fail, once again, because Detective Nelson had

arguable probable cause to arrest Smith for a crime as elucidated above.

First, to establish a federal claim for malicious prosecution under §1983, a

plaintiff must prove (1) the elements of the common-law tort of malicious

prosecution and (2) a violation of her Fourth Amendment right to be free from

unreasonable seizures. See Blue v. Lopez, 901 F.3d 1352, 1357 (11th Cir. 2018). As

established above, the second element here, a violation of Smith’s Fourth

Amendment rights, did not occur because Detective Nelson had arguable probable

cause. Thus, the federal malicious prosecution claim fails.

Second, Alabama courts have recognized that state law malicious prosecution

claims are disfavored because “[p]ublic policy requires that all persons shall resort

freely to the courts for redress of wrongs and to enforce their rights, and that this

may be done without the peril of a suit for damages in the event of an unfavorable

judgment by jury or judge.” Ex parte Harris, 216 So. 3d 1201, 1214 (Ala. 2016).

In Grider v. City of Auburn, Ala., the Eleventh Circuit established that, as it is

for federal malicious prosecution claims, Alabama state malicious prosecution

claims can be defeated by arguable probable cause. 618 F.3d 1240, 1259 (11th Cir.

2010)(holding that a police officer was not entitled to state-agent immunity or

discretionary-function immunity under Alabama law because the plaintiff’s version

of events showed an absence of arguable probable cause). As previously discussed,

Detective Nelson had arguable probable cause because probable cause existed to

arrest Smith for some crime, even if it was not the crime charged by Detective

Nelson. Thus, the finding of “no probable cause” by the state court judge is largely

irrelevant to the Court’s analysis.

With arguable probable cause, Detective Nelson and Chief Parrish receive

statutory, discretionary-function immunity under Alabama Code § 6-5-338(a),

which provides immunity from tort liability arising out of conduct occurring during

the performance of any discretionary function. See Telfare v. City of Huntsville, 841

So. 2d 1222, 7227 (Ala. 2002). Because arguable probable cause exists here, this

immunity activated to Detective Nelson’s and Chief Parrish’s benefit and precludes

the state law malicious prosecution claim from going any further. See Wood v.

Kesler, 323 F.3d 872, 882 (11th Cir. 2003) (holding that a malicious prosecution

claim is defeated by the absence of a constitutional violation and thereby the

presence of qualified immunity).

Finally, with regard to the municipal liability of the City, the Alabama

Supreme Court has held that “a municipality is not responsible for the acts of its

officers, agents, or servants in making false arrests or for instituting a malicious

prosecution.” See Dickinson v. City of Huntsville, 822 So. 2d 411 (Ala. 2011); Ott v.

Everett, 420 So. 2d 258 (Ala. 1982). See also Neighbors v. City of Birmingham, 384

So. 2d 113 (Ala. 1980). Thus, both malicious prosecution claims fail against the

City for the additional reason that the City cannot be held liable for any malicious

prosecution committed by Detective Nelson, even if one assumes that arguable

probable cause did not exist.

2. Smith has not Shown a Genuine Dispute of Material Fact as to

Acceptance’s Malfeasance.

All claims lodged against Acceptance rely on the same factual core; that is,

Acceptance falsely represented (orally, in writing, and negligently) “to Defendant

Nelson that Plaintiff had engaged in forgery to delete Acceptance’s name as lien

holders on the title to Plaintiff’s vehicle.” (Doc. 1, at 11, 12, 13.) It is this act,

alleges Smith, that exposes Acceptance to liability for slander (Count Five), libel

(Count Six), and negligence (Count Seven). Acceptance is entitled to summary

judgment as to all three claims.

Smith presents no evidence, not even a scintilla, to suggest that such a

representation or statement was ever made by Acceptance, whether in writing,

orally, or otherwise. Even Smith’s own affidavit does not offer any support for this

allegation. (See generally Doc. 42-1.) Such a failure at the summary judgment

stage, especially given the pleading requirements for such claims, proves fatal to any

claims based upon such an alleged representation, statement or communication by

Acceptance to Detective Nelson. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

257 (1986) (holding that a “plaintiff must present affirmative evidence in order to

defeat a properly supported motion for summary judgment.”); Chambliss v. Buckner,

804 F. Supp. 2d 1240, 1248 (M.D. Ala. 2011) (holding that allegations in an unsworn

complaint are not evidence for the purpose of summary judgment).

Apparently aware that she cannot support Counts Five, Six and Seven, as

pleaded, with any evidence, Smith changes direction and introduces new theories for

libel and slander in her summary judgment response.10 For example, Smith now

claims that Acceptance committed libel, slander, and a negligent act when it told

Detective Nelson that it held title to the Geo because, according to Smith, the lien

was no longer valid or legally enforceable due to the passage of time. (See Doc. 41

at 7-8.) This new theory fails for several reasons.

First, this claim was not pled in the Complaint and therefore it cannot be

injected into this case at such a late date. Gilmour v. Gates, McDonald & Co., 382

F.3d 1312, 1315 (11th Cir. 2004) (holding that new claims may not be asserted at

the summary judgment stage of litigation and must instead be included in an

amended complaint). It is axiomatic that a plaintiff cannot augment her complaint

with allegations made for the first time in response to a summary judgment motion.

10 Smith also vaguely references alleged violations of her privacy, violations of the Fair Credit

Reporting Act, and a breach of the duty not to use criminal process to collect a civil debt. (Doc.

41 at 10.) Smith, however, never asserted such claims in her Complaint and therefore these newly

articulated, but vaguely referenced, theories will be ignored.

See Mahgoub v. Miami Dade Cmty. Coll., No. 05-11520, 2006 WL 952278, at *2

(11th Cir. Apr. 13, 2006).

Second, Smith has presented no evidence that Acceptance made any false

statement or representation. Instead, the record shows that, in response to a request

by Detective Nelson, Acceptance stated that it still held the title and provided him

with the original certificate of title and a copy of the note/security agreement. There

is no contention that these are fraudulent documents. And that Acceptance

physically held possession of the title was, in fact, a true statement. See Foley v.

State Farm Fire & Cas. Ins. Co., 491 So. 2d 934, 937 (Ala. 1986) (holding that truth

is an absolute defense to defamation).

Third, any such statement, assuming such was made to Detective Nelson, was

made on a qualified occasion since it was information provided to law enforcement

as part of a law enforcement investigation, and Smith has not shown that it was

accompanied by malice. See Butler v. Town of Argo, 871 So. 2d 1, 26 (Ala. 2003);

Tidwell v. Winn-Dixie, Inc., 502 So. 2d 747, 748 (Ala. 1987). Such law enforcement-

related communications are subject to a qualified privilege. See id. (holding that a

store manager’s report to police could not serve as the basis for a defamation claim

because it was prompted by the duty of the store manager and therefore protected by

conditional privilege).

As Smith has not presented any evidence supporting the complaint allegation

that Acceptance accused her of forgery, Acceptance’s motion for summary judgment

is due to be granted. Her belated attempts to redefine these claims cannot, and will

not, be permitted. Consequently, Acceptance’s motion to strike (Doc. 43) is denied

as moot.

CONCLUSION

Based on the foregoing reasons, it be and is hereby

ORDERED as follows:

(1) the Motions for Summary Judgment (Docs. 37, 46) be and are hereby

GRANTED and this case be dismissed with prejudice; and

(2) the Motion to Strike filed by Acceptance (Doc. 43) is DENIED as moot.

DONE and ORDERED this 30th day of December, 2020.

/s/ R. Austin Huffaker, Jr.

R. AUSTIN HUFFAKER, JR.

UNITED STATES DISTRICT JUDGE