Vasser v. Leesburg, Town of

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BILLY JOE VASSER, et al., ]

]

Plaintiffs, ]

]

v. ] CIVIL ACTION NO.

] 4:19-CV-00098-KOB

TOWN OF LEESBURG, et al., ]

]

Defendants. ]

MEMORANDUM OPINION

This Section 1983, conspiracy, and malicious prosecution matter comes

before the court on three motions to dismiss. (Docs. 39, 41, and 43).

Plaintiffs Billy Joe Vasser and Vicki Vasser allege that law enforcement

officers and several individuals conspired to falsely prosecute Mr. Vasser for

criminal coercion. Three of the Defendants alleged to be a part of the

conspiracy—the deputy sheriff who investigated the crime that Mr. Vasser was

accused of coercing, Josh Summerford; the victim of the crime, Jeannie Nichols;

and her daughter, Marcie Foster—have moved to dismiss some of Plaintiffs’

claims for failure to state a claim upon which relief can be granted. For the

following reasons, the court will grant Mr. Summerford’s motion to dismiss and

deny in part and grant in part Ms. Nichols’s and Ms. Foster’s motions to dismiss.

I. STANDARD OF REVIEW

A motion to dismiss challenges the legal sufficiency of a complaint. Under

Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant can move to

dismiss a complaint for “failure to state a claim upon which relief can be granted.”

The complaint will survive the motion to dismiss if it alleges “enough facts to state

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). For a complaint to be “plausible on its face,” it must contain

enough “factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). And the court accepts as true the factual allegations in the

complaint. Id.

II. BACKGROUND

Plaintiffs make the following factual allegations in their amended complaint

that the court accepts as true for purposes of Defendants’ motions to dismiss. (See

Doc. 32).

Defendant Kaleb Howard Hamilton secretly filmed Defendant Jeannie

Nichols changing clothes in private and posted the videos on a pornography

website. The Chief of Police of the Town of Leesburg, Alabama, Defendant Brian

Gilliland, and Cherokee County deputy sheriff Josh Summerford investigated the

crime. Mr. Hamilton admitted to law enforcement that he recorded Ms. Nichols;

then Chief Gilliland, Mr. Summerford, Ms. Nichols, and her daughter, Defendant

Marcie Foster, directed Mr. Hamilton to falsely accuse Plaintiff Billy Joe Vasser of

coercing Mr. Hamilton to record Ms. Nichols. At the direction of the other

Defendants, Mr. Hamilton falsely stated that Mr. Vasser threatened to post a

sexually explicit video of Mr. Hamilton online if he did not record Ms. Nichols.

Based on Mr. Hamilton’s false statement, the Cherokee County magistrate

issued a warrant for Mr. Vasser’s arrest on the charge of criminal coercion. Law

enforcement arrested Mr. Vasser on December 6, 2016.

The Cherokee County District Court scheduled a bench trial for the criminal

coercion charge for January 23, 2017. Mr. Vasser made discovery requests to the

district attorney prosecuting his case, but the district attorney responded that he had

no discovery materials. The district attorney moved to dismiss the criminal

coercion case on January 13, 2017 and the judge dismissed the case on January 17,

2017.

From these factual allegations, Plaintiffs bring six Section 1983 claims and

three state law tort claims in their amended complaint:

• Count One: Section 1983 claim for “Policymaker Liability – Deliberate

Indifference” against Chief Gilliland;

• Count Two: Section 1983 claim for unlawful arrest against Chief Gilliland

and Mr. Summerford;

• Count Three: Section 1983 claim for “Failing to Prevent Unlawful Arrest –

Deliberate Indifference” against Chief Gilliland and Mr. Summerford;

• Count Four: Section 1983 claim for “Policymaker Ratification Municipal

Liability” against Chief Gilliland;

• Count Five: Section 1983 claim for “Inadequate Training Municipal

Liability” against the Town of Leesburg;

• Count Six: Section 1983 claim for “Supervisor Liability” against Chief

Gilliland;

• Count Seven: Alabama state law claim for “Conspiracy to Maliciously

Prosecute” against Chief Gilliland, Mr. Summerford, Mr. Hamilton, Ms.

Nichols, and Ms. Foster;

• Count Eight: Alabama state law claim for “Abuse of Process, Malicious

Prosecution, and False Imprisonment” against Chief Gilliland, Mr.

Summerford, Mr. Hamilton, Ms. Nichols, and Ms. Foster; and

• Count Nine: Alabama state law claim for loss of consortium against all

Defendants (Plaintiffs Billy Joe Vasser and Vicki Vasser are married).

(Doc. 32 at 6–13).

Mr. Summerford, Ms. Foster, and Ms. Nichols have moved to dismiss

Counts Seven, Eight, and Nine against them for failure to state a claim upon which

relief can be granted. The court addresses each Defendant’s motion to dismiss in

turn.

III. ANALYSIS

A. Deputy Sheriff Josh Summerford’s Partial Motion to Dismiss

(Doc. 39)

As stated above, among other Section 1983 claims, Plaintiffs bring state law

tort claims against deputy sheriff Summerford for conspiracy, abuse of process,

malicious prosecution, false imprisonment, and loss of consortium. For the

following reasons, the court will dismiss those claims because of Mr.

Summerford’s state sovereign immunity to those claims.

The Alabama Constitution provides that “the State of Alabama shall never

be made a defendant in any court of law or equity.” Ala. Const. § 14. The

Alabama Supreme Court has ruled that this sovereign immunity extends to state

law tort claims brought against deputy sheriffs acting within the scope of their

official duties because deputy sheriffs are executive officers of the State under the

Alabama Constitution. Ex parte Sumter Cty., 953 So. 2d 1235, 1239 (Ala. 2006);

see Tinney v. Shores, 77 F.3d 378, 383 (11th Cir. 1996) (extending Alabama state

sovereign immunity to state law tort claims brought against a deputy sheriff); Ex

parte Blankenship, 893 So. 2d 303, 305 (Ala. 2004) (same); Ex parte McWhorter,

880 So. 2d 1116, 1117 (Ala. 2003) (same).

Here, Plaintiffs allege that deputy sheriff Summerford took actions within

the scope of his duties that constitute the state law torts of conspiracy, abuse of

process, malicious prosecution, false imprisonment, and loss of consortium. So

Mr. Summerford enjoys state sovereign immunity to those claims. Thus, the court

will grant Mr. Summerford’s motion to dismiss Counts Seven, Eight, and Nine

against him; the § 1983 claims against him will remain pending.

B. Marcie Foster’s Motion to Dismiss (Doc. 43)

1. Conspiracy to Maliciously Prosecute

First, Ms. Foster moves to dismiss Count Seven for conspiracy to

maliciously prosecute brought against her. To state a civil conspiracy claim under

Alabama law, a plaintiff must allege “a combination between two or more persons

to accomplish by concert an unlawful purpose or to accomplish by unlawful means

a purpose not itself unlawful.” Webb v. Renfrow, 453 So. 2d 724, 727 (Ala. 1984)

(citing Barber v. Stephenson, 69 So. 2d 251 (Ala. 1954)). Fundamentally,

“liability for civil conspiracy rests upon the existence of an underlying wrong and

if the underlying wrong provides no cause of action, then neither does the

conspiracy.” Jones v. BP Oil Co., 632 So. 2d 435, 439 (Ala. 1993) (citing Allied

Supply Co. v. Brown, 585 So. 2d 33 (Ala. 1991), and Webb v. Renfrow, 453 So. 2d

724 (Ala. 1984)).

Here, for their conspiracy claim, Plaintiffs allege the underlying wrong of

malicious prosecution. To state a claim for malicious prosecution, the plaintiff

must allege “(1) a judicial proceeding initiated by the defendant[;] (2) the lack of

probable cause; (3) malice on the part of the defendant; (4) termination of the

judicial proceeding favorably to plaintiff; and (5) damages.” Allen v. Molton, Allen

& Williams Realty Co., 495 So. 2d 27, 30 (Ala. 1986).

Plaintiffs have sufficiently alleged the underlying malicious prosecution and

the conspiracy to commit it. Tracking the elements of a malicious prosecution,

Plaintiffs have alleged that (1) Defendants directed Mr. Hamilton to falsely accuse

Mr. Vasser of criminal coercion to initiate judicial proceedings against him; (2)

Defendants lacked probable cause to charge him with criminal coercion because

they relied only on Mr. Hamilton’s false statement that they procured; (3)

Defendants acted with malice by directing Mr. Hamilton to make his false

statement; (4) the Cherokee County District Court eventually dismissed the case

against Mr. Vasser; and (5) Mr. Vasser suffered consequential damages by posting

cash bond, retaining an attorney, spending time in jail, and emotional distress. And

Plaintiffs have alleged that Ms. Foster was among the Defendants present at the

Leesburg Police Department who directed Mr. Hamilton to falsely accuse Mr.

Vasser of criminal coercion.

So Plaintiffs have sufficiently alleged a combination between two or more

persons, including Ms. Foster, to achieve in concert a malicious prosecution. Thus,

the court will deny Ms. Foster’s motion to dismiss the conspiracy claim.

2. Abuse of Process

Next, Ms. Foster moves to dismiss the abuse of process component of Count

Eight against her—she has not moved to dismiss the false imprisonment

component of Count Eight. To state an abuse of process claim under Alabama

law, the plaintiff must allege (1) “the existence of an ulterior purpose”; (2) “a

wrongful use of process”; and (3) malice. C.C. & J., Inc. v. Hagood, 711 So. 2d

947, 950 (Ala. 1998) (citing Triple J Cattle, Inc. v. Chambers, 621 So. 2d 1221,

1225 (Ala. 1993)). The “wrongful use of process” element requires a plaintiff to

allege that the defendant wrongfully used process after initiating a proceeding.

Constable v. Lambert, No. 2:14-CV-409-KOB, 2016 WL 11267160, at *1 (N.D.

Ala. Mar. 14, 2016) (quoting Shoney’s, Inc. v. Barnett, 773 So. 2d 1015, 1025

(Ala. Civ. App. 1999) (“[Plaintiff] was required to prove that [Defendant] did

something other tha[n] ‘carry out the process to its authorized conclusion.’”)).

Here, Plaintiffs have failed to allege the second element of their abuse of

process claim because they have not alleged that any Defendant wrongfully used

process after initiating the allegedly malicious prosecution. Plaintiffs have not

alleged an abuse of process claim separate from their malicious prosecution claim

because “prosecuting someone for a crime without probable cause is malicious

prosecution, not abuse of process.” Shoney’s, 773 So. 2d at 1025. So the court

will grant Ms. Foster’s motion to dismiss Plaintiffs’ abuse of process claim.

3. “Counts Seven through Nine: Co-Defendant’s Motion to

Dismiss”

In her motion to dismiss, Ms. Foster moves generally to dismiss “Counts

Seven through Nine” and states, “if the Court determines that Co-Defendant’s

Motions to Dismiss have merit, the[n] Defendant Foster must also be dismissed as

there can be no liability in the absence of co-conspirators and/or an underlying

wrongdoing.” (Doc. 43 at 4). She also states that if the court grants Mr.

Hamilton’s motion to dismiss, then the court must necessarily grant her motion to

dismiss. (Id.).

But Ms. Foster’s arguments fail because no motion to dismiss from Mr.

Hamilton is pending in this case. So, regardless of the outcome of the present

motions to dismiss, at the very least, Mr. Hamilton would remain as an alleged co-

conspirator. And, as explained below, the court will deny Ms. Nichols’s motion to

dismiss the conspiracy claim, so she will remain as an alleged co-conspirator.

Thus, the court will deny Ms. Foster’s motion to dismiss counts seven through nine

on the grounds that she raised.

C. Jeannie Nichols’s Motion to Dismiss (Doc. 41)

First, Ms. Nichols moves to dismiss the conspiracy claim against her based

on the same arguments that Ms. Foster raised and the court rejected. So, for the

reasons stated above when analyzing Ms. Foster’s motion to dismiss the

conspiracy claim, the court will deny Ms. Nichols’s motion to dismiss the

conspiracy claim.

Next, just as Ms. Foster did, Ms. Nichols argues that the court must

necessarily grant her motion to dismiss if the court grants the other Defendants’

motions to dismiss. Ms. Nichols is correct only as to the abuse of process claim.

Plaintiffs make the same factual allegations against Ms. Nichols to support their

abuse of process claim as they allege against Ms. Foster. For the same reasons

explained above to grant Ms. Foster’s motion to dismiss the abuse of process

claim, the court will also grant Ms. Nichols’s motion to dismiss that claim.

But, as explained above, the court will dismiss the state law claims against

Mr. Summerford on grounds of state sovereign immunity; Ms. Nichols, who is not

a state actor, does not enjoy state sovereign immunity. And Ms. Nichols asserts

that the court must grant her motion to dismiss if it grants Mr. Hamilton’s motion

to dismiss, but, again, Mr. Hamilton does not have a motion to dismiss pending

before the court.

Finally, Ms. Nichols moves to dismiss Plaintiffs’ Count Nine for loss of

consortium because “Plaintiff[s] [have] based this entire count upon the veracity of

[their] claims in counts [seven and eight]. If Counts [seven and eight] are

dismissed then Jeannie Nichols cannot be adjudged to have conspired in such a

way as to cause any such loss of consortium.” (Doc. 41 at 5). But, as explained

above, the court will not dismiss Count Seven—conspiracy for malicious

prosecution—and will only dismiss the abuse of process component of Count

Eight—the false imprisonment and malicious prosecution components of that

count will remain. So the court will deny Ms. Nichols’s motion to dismiss the

claim for loss of consortium.

IV. CONCLUSION

For the reasons stated above, by separate order, the court will GRANT Mr.

Summerford’s motion to dismiss and DENY IN PART and GRANT IN PART

Ms. Foster’s and Ms. Nichols’s motions to dismiss.

Specifically, the court will DISMISS WITH PREJUDICE Counts Seven,

Eight, and Nine against Mr. Summerford. The § 1983 claims against Mr.

Summerford will remain.

The court will DISMISS WITHOUT PREJUDICE the abuse of process

claim that forms part of Count Eight against all defendants. The false

imprisonment and malicious prosecution components of Count Eight will remain.

DONE and ORDERED this 14th day of November, 2019.

____________________________________

KARON OWEN BOWDRE

CHIEF UNITED STATES DISTRICT JUDGE