Germany v. City of Huntsville

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

HILTON GERMANY and JONNIE )

BEY )

)

Plaintiffs )

) Case No.: 5:18-cv-1745-LCB

v. )

)

CITY OF HUNTSVILLE, et al., )

)

Defendants.

MEMORANDUM OPINION AND ORDER

The plaintiffs, Hilton Germany and Jonnie Bey, filed a complaint alleging

various causes of action against the City of Huntsville (“the City”) and five

Huntsville police officers: William Hall, Keith Wooden, Richard Flannery, Levi

Sellers, and Hudson Slater. The plaintiffs amended the complaint twice.

Therefore, the operative pleading is the second amended complaint1. (Doc. 28).

All counts of the complaint stem from the October 23, 2016 arrest of Germany.

Before the Court is a motion to strike the plaintiffs’ second amended complaint

filed by City of Huntsville, and Officers Hall and Wooden (Doc. 31); a motion to

dismiss the second amended complaint filed by Officers Flannery, Sellers, and

1 Unless otherwise noted, all references to the complaint will refer to the second amended

complaint.

Slater (Doc. 39); a motion for summary judgment and motion for judgment on the

pleadings filed by Officer Sellers (Doc. 48); a motion for summary judgment and

motion for judgment on the pleadings filed by Officer Flannery (Doc. 54); and

motions for summary judgment filed by Officer Hall (Doc. 50), Officer Wooden

(Doc. 52), Officer Slater (Doc. 56), and the City (Doc. 58). The Court held oral

argument on the pending motions on September 29, 2020. In addition to hearing

the arguments of counsel, the Court also reviewed the bodycam footage of the

underlying incident.

I. Statement of Undisputed Facts2

On October 23, 2016, Germany placed a 911 call in which he asked for

police to come to his home and remove his wife from the residence. Germany

began the call by saying, “I’m not trying to be funny. I’m fucking serious.” (Doc.

60-26)(First 911 Call). The dispatcher confirmed Germany’s address and then

asked, “Can you tell me what happened?” Id. Germany replied, “I just need a

2 The entire incident that is the basis for this claim was captured on video by bodycams worn by

the responding officers. Unless otherwise noted, the Court’s recitation of the facts is based on its

review of all of the video footage as well as a recording of the 911 calls placed by Germany.

Neither party disputes the authenticity of the video or audio footage; therefore, unless otherwise

noted, these facts are not in dispute. The recordings were conventionally filed. See (Docs. 60-13

to 60-24 and 60-25 to 60-26).

2

police officer to come out here. That’s what I’m requesting.” Id. The following

exchange then occurred:

[911 Dispatcher]: Can you tell me what happened?

[Germany]: No, motherfucker, I just told you what the fuck I need, right?

So that’s what I need you to do.

[911 Dispatcher]: My job is to ask you questions.

[Germany]: I don’t give a fuck about your job. You gonna send one or not?

[911 Dispatcher]: Uh, you need to tell me what’s going on.

[Germany]: Look man, just send a fucking police officer. That’s all I asked

for.

Id. Germany then hung up the phone.

A few minutes later, Germany again called 911 and spoke to a different

dispatcher. Germany identified himself, gave his address, and said that he wanted

to have someone removed from his residence. When the dispatcher asked for more

information, Germany replied, “Bring a police officer. I’m trying to restrain

myself from killing anybody.” (Doc. 60-27)(Second 911 call).

Officer Hall was dispatched to the scene and was the first to arrive. When

he got there, Germany was standing in the yard in front of his house. Hall

approached and asked Germany what was going on. Germany told Hall that he

wanted his wife removed from the residence because the two had gotten into an

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argument that, Germany said, had gotten physical. Hall told Germany that because

they were legally married, he could not make his wife leave the home. Germany

then responded, “Well, I’m just letting y’all know, I don’t want to have no problem

with someone getting killed.” (Doc. 60-14)(Hall Bodycam). Hall then asked

Germany if he had any injuries and further questioned him about what had

transpired between he and his wife. However, Germany would not provide any

details and repeated his request to have Hall remove his wife from the residence.

Up to this point, the conversation between Hall and Germany had been calm.

Hall asked for Germany’s name, to which he replied, “Hilton.” Id. However,

when Hall asked for Germany’s last name, Germany immediately became irate and

told Hall that he did not like to repeat himself. Hall replied that he had never met

Germany and that there was no need for Germany to be disrespectful to him. Hall

told Germany that he was there to help, but Germany then loudly shouted, “I don’t

give a fuck!” Id.

While Hall was speaking with Germany, Bey, who was identified as

Germany’s mother, came out of the house and stood between the two men. At that

point, Germany turned around and walked back toward his house while shouting

that Hall needed to “get the fuck up out of here.” Id. At his deposition, Hall stated

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that, after Germany’s outbursts, he decided to place him under arrest for disturbing

the peace3. (Doc. 60-4, p. 26)(Hall Deposition).4 The video footage shows that

Hall did not explicitly tell Germany that he was under arrest but instructed him to

place his hands behind his back. Germany ignored the instruction and continued to

walk toward his house, uttering profanity and shouting “I ain’t doing shit!” (Doc.

60-14)(Hall Bodycam). Hall followed Germany to the house where Germany

climbed a small set of stairs and stood next to his front door. Hall the stated, “you

need to come back down here.” Id.

In his sworn declaration, Hall stated that, based on Germany’s “loud,

profane, and violent language and his repeated statements that he wanted his wife

out of his house, [he] was concerned that Germany’s earlier threats that he might

kill someone might be directed at his wife.” (Doc. 60-9, p. 6). Hall further stated

that he was familiar with the Huntsville Police Department’s domestic violence

policy, which requires officers responding to a potential domestic violence call to,

among other things, “take reasonable measures to assist and/or assure the

3 In the incident report that Hall prepared after the arrest, he stated that Germany was so loud that

his neighbors were looking out of their windows and coming outside their homes. (Doc. 60-4, p.

26). Germany disputes that he was being loud enough for his neighbors to hear him.

4 Citations to page numbers in depositions refer to the page numbers assigned by the court

reporter in the transcript.

5

immediate safety of every person who may be affected. Officers will also

determine what actions will be most effective in preventing future violence.”

(Doc. 60-1, p. 2). According to Hall, he concluded that it was important to keep

Germany separate from others inside the house until the situation could be de-

escalated. (60-9, p. 7).

When Germany began to walk away from Hall, Hall followed him to the

front porch at which point Bey moved in front of Hall blocking him from pursuing

Germany any further. Germany had climbed the stairs and was standing just

outside of his door. When Hall instructed Germany to come down from his porch,

Germany yelled, “I ain’t going nowhere, get the fuck off my property.” (Doc. 60-

14)(Hall Bodycam). Germany then went just inside the house and stood behind a

glass door in full view of Hall. Hall had previously used his radio to call for

assistance from other officers who then began to arrive.

As noted, Bey had placed herself between Hall and Germany and was

blocking Hall’s access to the house. Bey began to explain to Hall that Germany

had “PTSD” and was upset because he had already given his last name and other

information to the 911 dispatcher. Id. Bey stated that Germany did not like to

have to repeat information and that Hall’s questions pushed Germany “from 0 to

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1000.” Id. Bey told Hall that she is unable to control Germany when he is at “that

level” because of his size. Id. Bey stated that Germany was “out of control” and

that Germany could not control himself when he was that angry. When Hall asked

Bey whether there were any weapons in the house, she responded, “Not that I’m

aware of.” Id.

Bey also told Hall that Germany’s wife had thrown hot grease on him. Hall

then explained to Bey that, because the situation involved domestic violence,

Germany needed to come outside and talk with him. Germany again shouted, “I

don’t give a fuck. I ain’t going nowhere.” (Doc. 60-14)(Hall Bodycam). Hall told

Bey that Germany needed to come back outside, but Bey replied that he was “not

going to do that.” Id. Hall then told Bey that if Germany would not come out, he

would have to go inside and bring him out. Id.

Germany never complied with Hall’s instructions to come back outside the

house. Instead, he turned around and retreated inside and out of Hall’s view. Hall

immediately proceeded to follow him inside over Bey’s protests. Officers

Wooden, Flannery and Slater followed him inside. Bey was briefly pinned behind

the glass door and the porch rail for a few seconds as the officers entered the

house. The officers trailed Germany inside and confronted him at a set of stairs

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next to the kitchen. At that point, Hall instructed him to put his hands behind his

back and told him that he was under arrest. Germany asked why, and Hall

informed him that he was being arrested for disturbing the peace. Germany

remained loudly argumentative and yelled, “It’s my fucking property. I can say

whatever I want.” (Doc. 60-14)(Hall Bodycam). Officer Flannery then told

Germany to cooperate, but Germany pointed his finger at Flannery and told him to

“shut the fuck up.” Germany then emphatically shouted, “I’m not about to fucking

go nowhere.” Id.

At that point, it had been approximately seven minutes since Hall first

arrived on the scene. Germany had grown more agitated and showed no sign that

he intended to cooperate despite Hall’s continued commands that he put his hands

behind his back. Officer Wooden then sprayed a chemical irritant, identified as

“OC spray” into Germany’s face. A struggle ensued for approximately one minute

as officers attempted to put handcuffs on Germany. Germany was then wrestled to

the ground where he continued to struggle until he was ultimately subdued. There

is no dispute that Officer Flannery punched Germany three or four times during the

altercation. Flannery stated that he believed Germany was trying to grab his gun.

(Doc. 60-14)(Hall Bodycam). However, Germany disputes that he was going for

8

Flannery’s gun, and, because of the struggle, the video footage does not clearly

show one way or the other. Officers Hall, Wooden, and Slater also admit that they

struck Germany with their hands and fists during the altercation. It is undisputed

that some of these blows hit Germany in the head. Germany alleged that one of the

officers choked him during the struggle. However, the video footage is

inconclusive and shows only that an officer put Germany in a headlock in the

process of taking him to the ground. See e.g. (Doc. 60-14)(Hall Bodycam).

Once Germany was handcuffed, the officers called for medical assistance

and attempted to take Germany outside so that they could wash the OC spray from

his face. However, Germany refused, and the officers had to lift him to his feet.

Germany was then escorted out of the house but walked under his own power.

When they approached the porch, one of the officers escorting Germany told him,

“Watch your step. Step coming.” (Doc. 60-18)(Slater Bodycam). Germany’s left

foot then slipped off the porch, and his momentum carried him a few feet towards

the ground. However, his right foot remained on the porch and his left foot hit the

ground. Neither Germany nor any of the officers fell to the ground, and the videos

clearly show that the officers did not throw Germany to the ground. See e.g., (Doc.

60-20)(Allen Bodycam).

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During the officers’ attempt to arrest Germany, Bey began to scream loudly

and repeatedly stated that she needed to get inside. Officer Sellers restrained her

briefly, but she was ultimately able to pull herself free and run into the house.

Bodycam footage shows that, once she pulled her arm free, Bey fell into the house.

It is clear from the footage that Bey was not pushed. See e.g., (Doc. 60-19)(Sellers

Bodycam). She was later helped up by officers after Germany was subdued.

Approximately 24 hours after his arrest, Germany went to the hospital

complaining of conditions related to his arrest. The records from that visit indicate

that Germany had a chief complaint of “mild pain on multiple locations” and had

bruising below his right eye and on his upper extremities. (Doc. 60-12, p. 20).

Although Germany alleged in his complaint that he “blacked out” after he was

pepper sprayed, the medical records reveal that he denied losing consciousness.

(Doc. 60-12, p. 17). The doctor did not perform any imaging scans and prescribed

home care and a muscle relaxer.

Germany was subsequently charged with resisting arrest and disturbing the

peace. However, those charges were later dismissed, and Germany was never

convicted of any crime relating to the night of October 23, 2016.

II. Plaintiffs’ Complaint

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On October 22, 2018, Germany and Bey filed a complaint against the City

and five of the officers. In the operative complaint, Germany alleged false arrest

against Officer Hall; use of excessive force against all five officers; and assault and

battery against all defendants including the City. (Doc. 28). Bey alleged use of

excessive force against Hall as well as assault and battery against Slater. Id. As

will be discussed below, there is some argument as to whether the complaint

asserts any other causes of action on Bey’s behalf. All of the officers are sued in

their individual capacities. The plaintiffs purport to bring their claims pursuant to

42 U.S.C. § 1983. However, in their statement of jurisdiction, the plaintiffs also

refer to “state supplemental jurisdiction.” (Doc. 28, p. 1). The Court will discuss

this further below.

III. Discussion

As noted, each defendant has filed a motion for summary judgment, and two

officers have also filed, jointly with their motions for summary judgment, a motion

for judgment on the pleadings. There is also a motion to strike the second

amended complaint and a motion to dismiss. The Court will first address the

motion to strike and the motion to dismiss.

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A. The Motion to Strike is denied because the Court contemplated the

Plaintiffs’ amendment in a previous order.

The City, Wooden, and Hall moved to strike the second amended complaint

on the ground that it improperly added defendants and causes of action after the

deadline set out in the Court’s scheduling order. (Doc. 31). That order, which was

issued on February 28, 2019, provided that “[n]o causes of action, defenses, or

parties may be added.” (Doc. 23, p. 1). The plaintiffs filed the second amended

complaint on September 11, 2019, without seeking leave to amend. Therefore, the

movants say, the complaint violates the Court’s scheduling order and should be

stricken.

In response, the plaintiffs note that the initial complaint and the first

amended complaint named fictitious defendants John Doe, Richard Doe, and Bill

Doe. The defendants moved to strike these defendants (Doc. 8), but the Court

denied the motion. (Doc. 27). In that order, the Court agreed with the plaintiffs’

contention that the Doe defendants were not fictitious parties but instead, were

actual parties named fictitiously whose names could likely be ascertained through

discovery. The plaintiffs argue that because this order was issued after the

February 28, 2019 scheduling order, it served as an implicit grant of leave to

amend.

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Although it would have been better practice for the plaintiffs to file a motion

for leave to amend, the Court agrees with their contention that the order denying

the defendants’ motion to strike was an implicit grant of leave to amend. Although

not stated explicitly, the Court did contemplate that the plaintiffs would amend

their complaint once the fictitiously named defendants’ identities were ascertained.

The Court notes that the second amended complaint largely mirrors the first

amended complaint but for the substitution of Officers Flannery, Slater, and Sellers

for the Doe defendants. Bearing in mind that Rule 15(a)(2) Fed. R. Civ. P.

provides that leave to amend shall be freely granted, the Court will allow the

second amended complaint. Therefore, the defendants’ Motion to Strike (Doc. 31)

is DENIED.

B. The Motion to Dismiss is denied because the Plaintiffs adequately

described Flannery, Sellers, and Slater in their initial complaint.

In their motion to dismiss (Doc. 39), Officers Flannery, Sellers, and Slater

argue that the claims against them are due to be dismissed because, they said, they

were not adequately described in the initial complaint so as to allow their later

substitution. As noted, the initial complaint was filed on October 22, 2018, and the

events underlying this lawsuit occurred on October 23, 2016. The movants argue

that any claims filed more than two years after that date are due to be dismissed as

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being filed outside of the applicable two-year statute of limitations. See Jones v.

Preuit & Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989)(The statute of limitations

for actions brought under 42 U.S.C. § 1983 in Alabama is two years.). Although

the plaintiffs argue that the claims against the movants relate back to the initial

complaint, the movants contend that they were not sufficiently described in that

complaint so as to allow the later substitution.

As discussed in the Court’s order denying the defendants’ first motion to

strike, fictitious party practice is not allowed in federal court. (Doc. 27).

However, there is a limited exception to the rule that is applicable in situations

where “the plaintiff’s description of the defendant is so specific as to be ‘at the

very worst, surplusage[.]’” Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir.

2010), quoting Dean v. Barber, 951 F.2d 1210, 1215-16 (11th Cir. 1992). In the

initial complaint, the plaintiffs described the Doe defendants as “officers (identities

unknown at this time by the Plaintiffs) who participated in the arrest of Hilton

Germany on October 23, 2016.” (Doc. 1, p. 2). The parties disagree as to whether

this description meets the specificity standard discussed above.

In their motion, the movants cite several cases in which courts have found

descriptions of fictitious parties to be insufficient. For example, the movants

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compare the plaintiffs’ description of the Doe defendants to the description given

by the plaintiff in Richardson. In that case, the plaintiff described a fictitious

defendant as “John Doe (Unknown Legal Name), guard, Charlotte Correctional

Institute.” 598 F.3d at 738. That defendant was alleged to have violated the

plaintiff’s Eighth Amendment rights by “(1) assigning him to a cell with another

inmate who was known to be dangerous and who later attacked him, (2) refusing

him medical treatment for 15 hours after the attack, and (3) denying his numerous

grievances and requests.” Id. at 736.

The district court in Richardson dismissed the Doe defendant and the

Eleventh Circuit affirmed. In affirming the dismissal, the Eleventh Circuit held

that the description given above was insufficient to identify the defendant among

the many guards employed at the correctional facility. Id. The movants cite to

other cases following Richardson in which courts have dismissed fictitiously

named defendants after finding that they were not sufficiently described.

However, the Court finds the plaintiffs’ description in this case to be sufficient.

Although the description is brief, the Court finds it distinguishable from the overly

broad descriptions discussed in the cited cases.

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As noted, the plaintiffs described the three Doe defendants as officers who

participated in his arrest. Had he not specified that the officers participated in his

arrest and instead generally named them as Huntsville police officers who

contributed to his alleged injuries, the Court would agree that the description was

insufficient. However, by describing the three Doe defendants as officers who

participated in his arrest, the plaintiffs’ description adequately distinguished those

officers from the numerous other officers employed by the Huntsville Police

Department as well as the other officers present on the night Germany was

arrested. The Huntsville Police Department’s records, including incident reports

and bodycam footage, allowed Germany to ascertain the Doe defendants’

identities. In fact, the arresting officers can all be seen on the bodycam footage.

Thus, the plaintiffs’ description of the Doe defendants in this particular instance

was sufficiently specific to put them on notice so that they could be readily

identified for service of process. See Dean, 951 F.2d at 1215 n. 6. Accordingly,

the plaintiffs’ claims against Flannery, Sellers, and Slater relate back to the initial

complaint. As noted, that complaint was filed within two years of the alleged

incident. Consequently, the motion to dismiss (Doc. 39) is DENIED.

C. Motions for Summary Judgment (Docs. 48, 50, 52, 54, 56, and 58).

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All defendants have moved for summary judgment as to all of the plaintiffs’

claims, and Officers Sellers and Flannery also moved for judgment on the

pleadings. According to the defendants, they are entitled to qualified immunity

from the plaintiffs’ claims. The Court will address these motions as they relate to

each count in the plaintiffs’ complaint.

1. Summary Judgment Standard

“The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). To demonstrate that there is a genuine

dispute as to a material fact that precludes summary judgment, a party opposing a

motion for summary judgment must cite “to particular parts of materials in the

record, including depositions, documents, electronically stored information,

affidavits or declarations, stipulations (including those made for purposes of the

motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ.

P. 56(c)(1)(A). “The court need consider only the cited materials, but it may

consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).

When considering a summary judgment motion, the Court must view the

evidence in the record in the light most favorable to the non-moving party and

17

draw reasonable inferences in favor of the non-moving party. White v. Beltram

Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015). “[A]t the summary

judgment stage[,] the judge’s function is not himself to weigh the evidence and

determine the truth of the matter but to determine whether there is a genuine issue

for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “‘Genuine

disputes [of material fact] are those in which the evidence is such that a reasonable

jury could return a verdict for the non-movant. For factual issues to be considered

genuine, they must have a real basis in the record.’” Evans v. Books-A-Million,

762 F.3d 1288, 1294 (11th Cir. 2014) (quoting Mize v. Jefferson City Bd. of Educ.,

93 F.3d 739, 742 (11th Cir. 1996)). “A litigant’s self-serving statements based on

personal knowledge or observation can defeat summary judgment.” United States

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

707 F.3d 1244, 1253 (11th Cir. 2013) (“To be sure, Feliciano’s sworn statements

are self-serving, but that alone does not permit us to disregard them at the summary

judgment stage.”). Even if the Court doubts the veracity of the evidence, the Court

cannot make credibility determinations of the evidence. Feliciano, 707 F.3d at

1252 (citing Anderson, 477 U.S. at 255). However, conclusory statements in a

declaration cannot by themselves create a genuine issue of material fact. See Stein,

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881 F.3d at 857 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).

In sum, the standard for granting summary judgment mirrors the standard for

a directed verdict. Anderson, 477 U.S. at 250 (citing Brady v. Southern R. Co., 320

U.S. 476, 479–480 (1943)). The district court may grant summary judgment when,

“under governing law, there can be but one reasonable conclusion as to the

verdict.” Id. at 250. “[T]here is no issue for trial unless there is sufficient evidence

favoring the nonmoving party . . . . If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Id. at 249–50

(internal citations omitted).

The evidence submitted by the defendants in this case includes video footage

recorded by bodycams that were worn by officers at the scene. The Eleventh

Circuit has held:

In cases where opposing parties tell different versions of the

same events, one of which is blatantly contradicted by the record—

such that no reasonable jury could believe it—a court should not

adopt the contradicted allegations. Pourmoghani–Esfahani v. Gee,

625 F.3d 1313, 1315 (11th Cir.2010) (per curiam)(quoting Scott v.

Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)).

In the context of cases involving video evidence, this Court will

accept the video's depiction over the opposing party's account of the

facts where the video obviously contradicts that version of the facts.

See id. But, even where the entire series of events is recorded, video

evidence is not obviously contradictory if it fails to convey spoken

words or tone, or fails to provide an unobstructed view of the events.

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See id.

Logan v. Smith, 439 F. App'x 798, 800 (11th Cir. 2011). The bodycam

footage in the present case has sound and is continuous throughout the

officers’ relevant interactions with the plaintiffs. As will be discussed

below, some of the plaintiffs’ allegations are blatantly contradicted by the

video evidence. In those instances, the Court will not accept the

contradictory assertions as being true for purposes of summary judgment.

2. Qualified Immunity Standard

To receive qualified immunity, the public official carries the initial burden

of demonstrating that “he was acting within the scope of his discretionary authority

when the alleged wrongful acts occurred.” Courson v. McMillan, 939 F.2d 1479,

1487 (11th Cir. 1991). If the defendant is not acting within the scope of his

discretionary authority, he may not enjoy the benefit of qualified immunity. Lee v.

Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).

Once it is established that the official is acting within the scope of his

discretionary authority, the burden shifts to the plaintiff “to show that qualified

immunity is not appropriate.” Lee, 284 F.3d at 1194. The United States Supreme

Court has set forth a two-part test for determining the appropriateness of a

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qualified immunity defense. See Saucier v. Katz, 533 U.S. 194 (2001), receded

from by Pearson v. Callahan, 555 U.S. 223 (2009). 5 Under Saucier, a court must

ask, “[t]aken in the light most favorable to the party asserting the injury, do the

facts alleged show the officer’s conduct violated a constitutional right?” Saucier,

533 U.S. at 201. If a constitutional right would have been violated assuming the

plaintiff’s version of the facts as true, the court must then determine “whether the

right was clearly established.” Id.

While Section 1983 creates a private right of action for constitutional

violations by government officials, the doctrine of qualified immunity

simultaneously operates to provide a shield from liability to government officials

performing discretionary functions. See generally Case v. Eslinger, 555 F.3d

1317, 1326 (11th Cir. 2009) (quoting Pearson v. Callahan, 555 U.S. 223 (2009)

(“‘Qualified immunity balances two important interests—the need to hold public

officials accountable when they exercise power irresponsibly and the need to shield

5 In Pearson, the United States Supreme Court held that courts may exercise their discretion in

applying the two-part test under Saucier in whatever order is best suited to the facts of the case.

555 U.S. at 810 (“The judges of the district courts and the courts of appeals should be permitted

to exercise their sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances in the particular case at hand.”).

The Pearson Court noted that cases at the pleading stage may be best suited for reordering the

sequence because in the early stages of litigation, “the precise factual basis for the plaintiff’s

claim or claims may be hard to identify. Id. at 822. As the parties in the present case are beyond

the pleading stage, the Court finds that the traditional application of Saucier is appropriate.

21

officials from harassment, distraction and liability when they perform their duties

reasonably.’”)). The purpose of qualified immunity is to ensure that government

officials are not required to “err always on the side of caution because they fear

being sued.” Hunter v. Bryant, 502 U.S. 224, 229 (1991). “Qualified immunity

gives government officials breathing room to make reasonable but mistaken

judgments, and protects all but the plainly incompetent or those who knowingly

violate the law.” Stanton v. Sims, 571 U.S. 3, 6 (2013) (internal quotations and

citations omitted).

3. Germany’s Claims

In Count I of his complaint, Germany asserted a claim of false arrest against

Officer Hall. In Counts II-VI, he alleged excessive force against all five officers.

Finally, in Counts VIII-XIII, he asserted claims of assault and battery against all

five officers as well as the City. The Court will address each count in turn.

a. Hall is entitled to qualified immunity on Germany’s false

arrest claim.

Section 1983 creates a private right of action for constitutional violations

committed by persons acting under “color of state law.” City of Newport v. Fact

Concerts, Inc., 453 U.S. 247, 258 (1981); see generally Monroe v. Pape, 365 U.S.

167 (1961). The statute provides in pertinent part:

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Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the District

of Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress....

42 U.S.C. § 1983. Section 1983 is not itself a source of substantive rights; it

instead provides a method for vindicating federal rights elsewhere conferred.

Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979).

“A warrantless arrest without probable cause violates the Constitution and

forms the basis for a section 1983 claim. The existence of probable cause,

however, is an absolute bar to a section 1983 action for false arrest.” Marx v.

Gumbinner, 905 F.2d 1503, 1505–06 (11th Cir. 1990)(internal citations omitted).

Probable cause exists when “the facts and circumstances within the officer's

knowledge, of which he or she has reasonably trustworthy information, would

cause a prudent person to believe, under the circumstances shown, that the suspect

has committed, is committing, or is about to commit an offense.” Rankin v. Evans,

133 F.3d 1425, 1435 (11th Cir. 1998)(quoting Williamson v. Mills, 65 F.3d 155,

158 (11th Cir. 1995) ). “Probable cause to arrest exists when law enforcement

officials have facts and circumstances within their knowledge sufficient to warrant

23

a reasonable belief that the suspect had committed or was committing a crime.”

United States v. Gonzalez, 969 F.2d 999, 1002 (11th Cir. 1992). “If an officer has

probable cause to believe that an individual has committed even a very minor

criminal offense in his presence, he may, without violating the Fourth Amendment,

arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).

“Absent probable cause, an officer is still entitled to qualified immunity if

arguable probable cause existed.” Case v. Eslinger, 555 F.3d 1317, 1327 (11th

Cir. 2009)(citing Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002)). “An

arrest without probable cause is unconstitutional, but officers who make such an

arrest are entitled to qualified immunity if there was arguable probable cause for

the arrest.” Jones v. Cannon, 174 F.3d 1271, 1282 (11th Cir. 1999)(citing Lindsey

v. Storey, 936 F.2d 554, 562 (11th Cir. 1991); Marx v. Gumbinner, 905 F.2d 1503,

1505 (11th Cir. 1990)). “Arguable probable cause exists if, under all of the facts

and circumstances, an officer reasonably could—not necessarily would—have

believed that probable cause was present.” Crosby v. Monroe County, 394 F.3d

1328, 1332 (11th Cir. 2004)(emphasis added); Redd v. City of Enterprise, 140 F.3d

1378, 1382 (11th Cir. 1998)(“Taking the facts of the case in the light most

favorable to the plaintiffs, we conclude that the EPD officers had arguable

24

probable cause to arrest Anderson for disorderly conduct on March 24th, that is,

that the officers could reasonably have believed that Anderson's actions on that

date violated Alabama's disorderly conduct statute.”)(footnote omitted); Montoute

v. Carr, 114 F.3d 181, 184 (11th Cir. 1997)(“In order to be entitled to qualified

immunity from a Fourth Amendment claim, an officer need not have actual

probable cause but only ‘arguable probable cause,’ i.e., the facts and circumstances

must be such that the officer reasonably could have believed that probable cause

existed.”).

Assessing probable cause and arguable probable cause rests upon the

elements of the alleged crime and the operative fact pattern. However,

determining arguable probable cause does not require proof of every element of a

crime. If the arresting officer had arguable probable cause to arrest for any

offense, qualified immunity will apply. Thompson v. City of Florence, Ala., 3:17-

cv-01053-HNJ, 2019 WL 3220051, at *8 (N.D. Ala. July 17, 2019) (internal

citations omitted).

In the present case, Germany has alleged that his arrest for disturbing the

peace was improper because, he says, it was not based on even arguable probable

25

cause. The Court disagrees. The City of Huntsville’s municipal ordinance for

disturbing the peace is as follows:

It shall be unlawful for any person willfully to disturb the peace of

others by violence, offensive, boisterous or tumultuous conduct or

carriage or by language calculated to provoke a breach of the peace,

or to create or aid in a rout or riot within the city.

HUNTSVILLE, ALA. MUNIC. ORD. § 17-102.

It is undisputed that Germany was outside, in the corner of his yard when he

began to raise his voice and shout loud profanities at Officer Hall. Although

Germany asserts that he was not yelling loudly enough for any of his neighbors to

hear, that is not dispositive of the issue. The video footage shows that Germany’s

behavior was not as calm and measured as he described it in the complaint. See

(Doc. 28, at 6)(“Germany then told Hall that he could leave since he had already

stated that he could be of no assistance. . . [and] quietly walked back into the

privacy of his home when [Hall] told him he could not help him. . . . Germany did

not make any loud noises.”). These allegations are completely refuted by the

footage from Hall’s bodycam, which shows a verbal tirade that was incredibly loud

and boisterous. Germany’s contention that he “did not make any loud noises” is

completely false. Rather, his behavior was so intense that Hall, or an officer in his

position, could have reasonably believed that he was disturbing the peace, i.e. Hall

26

had, at the very least, arguable probable cause to arrest Germany. Germany has

pointed to no evidence to the contrary. Therefore, the Court finds that Hall had at

least arguable probable cause to arrest Germany thereby barring any § 1983 claim

for false arrest. See Marx, 905 F. 2d at 1505-06.

These facts also justify Hall’s warrantless entry into Germany’s home. It is

well established that certain exigent circumstances allow an officer to enter a

private residence without a warrant. One such exigency is the hot pursuit of a

fleeing suspect. See, e.g., United States v. Santana, 427 U.S. 38, 42-43 (1976).

Hot pursuit ensues when police pursue a suspect fleeing from a recently committed

crime. A “‘hot pursuit means some sort of chase, but it need not be an extended

hue and cry in and about [the] public streets.’” Thompson v. City of Florence,

2019 WL 3220051, at *10, quoting Santana, 427 U.S. at 42-43. This exigency

applies as long as the pursuit is immediate and continuous . . . from the scene of a

crime, regardless of how long the pursuit takes. See, e.g., United States v. Fuller,

572 Fed. Appx. 819, 821 (11th Cir. 2014) (citation omitted).

As described above, Germany first walked away from Hall and went inside

his house behind a glass door. However, despite Hall’s attempts to have Germany

voluntarily come back out of the house, Germany retreated inside and out of Hall’s

27

view. Having probable cause to arrest Germany as described above, Hall was thus

justified in pursuing Germany into his home. The entry into the home was

sufficiently continuous to qualify as an exigent circumstance. Indeed, the entire

sequence of events from Hall’s arrival until Germany’s arrest spanned less than ten

minutes.

Alternatively, Hall was justified in entering the house because he intended to

render emergency assistance to Germany’s wife and child.6 Law enforcement

officers may enter a house without a warrant to render emergency assistance to

protect an occupant from imminent injury. United States v. King, 634 Fed. Appx.

287, 290 (11th Cir. 2015). The United States Supreme Court has recognized this

exigency in the context of domestic violence:

No question has been raised, or reasonably could be, about the

authority of the police to enter a dwelling to protect a resident from

domestic violence; so long as they have good reason to believe such a

threat exists, it would be silly to suggest that the police would commit

a tort by entering, say, to give a complaining tenant the opportunity to

collect belongings and get out safely, or to determine whether

violence (or threat of violence) has just occurred or is about to (or

soon will) occur, however much a spouse or other co-tenant objected.

. . . Thus, the question whether the police might lawfully enter over

objection in order to provide any protection that might be reasonable

is easily answered yes.

6 Hall’s bodycam revealed that Germany had previously stated that his wife and child were inside

the house.

28

Georgia v. Randolph, 547 U.S. 103, 118 (2006). At the time of his entry, Hall

knew, based on Germany’s assertions, that the situation had escalated enough to

make Germany believe that someone might be killed. Bey also informed Hall that

Germany’s wife had thrown hot grease on him. Those assertions, along with

Germany’s aggressive behavior and abusive language, would have led any

reasonable officer to be concerned for the safety of those inside the house.

Accordingly, the Court finds that Hall’s decision to arrest Germany for disturbing

the peace was appropriate as was his decision to pursue Germany into his home in

order to effect that arrest.

Germany also contended that his arrest for resisting arrest was not based on

arguable probable cause. As discussed above, there was, at the very least, arguable

probable cause for Hall to arrest Germany for disturbing the peace. “A person

commits the crime of resisting arrest if he intentionally prevents or attempts to

prevent a peace officer from affecting a lawful arrest of himself or of another

person.” Ala. Code § 13A-10-41. Although Germany alleged in the complaint

that he “complied and did not resist arrest” (Doc. 28, at 6), the video evidence

clearly shows otherwise. After Hall told Germany that he was under arrest for

disturbing the peace, Germany continued to shout profanities at the officers and

29

explicitly told them that he had no intention of leaving his house. Specifically,

Germany told the officers, “I’m not about to fucking go nowhere.” (Doc. 60-

14)(Hall Bodycam). A struggle then ensued for approximately one minute in

which the officers had to use physical force to gain Germany’s compliance.

Accordingly, the video evidence indisputably shows that Germany intentionally,

through words and actions, tried to prevent his arrest. Accordingly, there was at

the very least arguable probable cause for Hall to arrest Germany for disturbing the

peace, and resisting arrest. Consequently, Hall is entitled to qualified immunity for

his decision to arrest Germany. Therefore, his motion for summary judgment

(Doc. 50) as to Count I is GRANTED, and Count I is DISMISSED WITH

PREJUDICE.

b. The officers are entitled to partial summary judgment on

Germany’s excessive-force claims because most of their

conduct during Germany’s arrest merits qualified

immunity.

Germany contends that all five officers used excessive force against him.

Germany’s excessive-force claims against the remaining officers are nearly

identical and will be analyzed together.7 In cases alleging excessive force

7 In each excessive-force claim, Germany alleged that the relevant officer “did use excessive and

unreasonable force against” him, which “included punching him in the face, back, and ribs.”

30

incident to an arrest, the source of federal rights arises under the Fourth

Amendment’s protections against unreasonable searches and seizures. Graham v.

Connor, 490 U.S. 386, 394 (1989)(“Where, as here, the excessive force claim

arises in the context of an arrest or investigatory stop of a free citizen, it is most

properly characterized as one invoking the protections of the Fourth Amendment,

which guarantees citizens the right “to be secure in their persons ... against

unreasonable ... seizures” of the person.”); Lee v. Ferraro, 284 F.3d 1188, 1197–98

(11th Cir. 2002) (“The Fourth Amendment’s freedom from unreasonable searches

and seizures encompasses the plain right to be free from the use of excessive force

in the course of an arrest.”).

The United States Supreme Court “has long recognized that the right to

make an arrest or investigatory stop necessarily carries with it the right to use some

degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at

396. Because the Court has determined that Germany’s arrest was proper, it

follows that the officers had the right to use some force. To determine whether the

amount of force used by a police officer was proper, a court must ask whether a

(Doc. 28, p. 7-11). Germany also alleged that Officer Wooden’s use of a chemical irritant was

excessive and that other officers slammed him onto a concrete porch. Those allegations will be

addressed separately.

31

reasonable officer would believe that this level of force is necessary in the situation

at hand. Kesinger v. Herrington, 381 F.3d 1243, 1248 n. 3 (11th Cir. 2004). “The

‘reasonableness’ of a particular use of force must be judged from the perspective of

a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

Graham, 490 U.S. at 396. “The calculus of reasonableness must embody

allowance for the fact that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly evolving—

about the amount of force that is necessary in a particular situation. Id. at 396-97.

The Graham factors guide this inquiry: courts consider [1] the severity of

the crime at issue, [2] whether the suspect poses an immediate threat to the safety

of the officers or others, and [3] whether [the suspect] is actively resisting arrest or

attempting to evade arrest by flight. Graham, 490 U.S. at 396; see also Vinyard v.

Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002). Also relevant are [4] the need for

the application of force, [5] the relationship between the need and the amount of

force used, and [6] the extent of the injury inflicted. Crenshaw v. Lister, 556 F.3d

1283, 1290 (11th Cir. 2009).

While disturbing the peace is not the most serious of crimes, Germany’s

behavior after Hall first told him to put his hands behind his back is another story.

32

In his complaint, Germany attempted to downplay his behavior by stating that he

simply asked Hall to leave after it was determined that Hall would not remove his

wife from the residence. (Doc. 28, at 6). Germany even went so far as to make the

demonstrably false assertions that he made no loud noises and complied with the

officers. Id. However, the video evidence described above demonstrates that

Germany’s behavior was severe enough to pose an immediate threat to the officers

present and, potentially, to the other occupants of the house. Indeed, Germany told

both the 911 dispatcher and Hall that he was trying to prevent someone from being

killed. Thus, the second Graham factor weighs heavily in favor of the officers.

Further, the third Graham factor weighs heavily in favor of the officers because, as

described above, Germany actively resisted arrest.

As to the fourth and fifth factors, the Court finds that the officers’ use of

hand strikes, taking Germany to the ground, and deploying a chemical irritant were

proportional to the threat and reasonable in the situation confronting him. Courts

have held that such tactics are reasonable when used on a subject who is resisting

arrest or refusing police requests. See Manners v. Cannella, 891 F.3d 959 (11th

Cir. 2018)(finding that shoving, punching in the head, and taking the plaintiff to

the ground “was proportional to restrain someone who was six-foot-two and 240

33

pounds[8] and was actively resisting for an extended period.”); Vinyard, 311 F.3d

at 1348 (“Courts have consistently concluded that using pepper spray is

reasonable, however, where the plaintiff was either resisting arrest or refusing

police requests, such as requests to enter a patrol car or go to the hospital.”). As

noted above, Germany explicitly told the officers that he had no intention of

leaving his house. See e.g. (Doc. 60-14)(Hall Bodycam). Thus, the fourth and

fifth Graham factors weigh in favor of the officers. As to the final factor,

Germany’s medical records reveal that his injuries were minor, and required

minimal treatment. See (Doc. 60-12).

Having reviewed the video evidence, the Court finds that the officers were

forced to quickly respond to Germany’s hostile behavior and initially used a

reasonable amount of force in gaining his compliance. Accordingly, the Court

finds that the officers’ initial use of force, when viewed through the lens of the six

factors mentioned above, was objectively reasonable under the circumstances.

Thus, the officers’ conduct to that point did not violate any Constitutional rights,

and they are consequently entitled to qualified immunity for their actions up to that

point.

8 Germany’s mother told Hall that Germany was six-foot-five and could not be controlled when

he became angry.

34

However, Germany also alleged that the officers continued to choke and

punch him after he gave up and after he was handcuffed. (Doc. 60-11, p. 66-

67)(Germany Deposition). The Eleventh Circuit has held that “‘gratuitous use of

force when a criminal suspect is not resisting arrest constitutes excessive force.’”

Wate v. Kubler, 839 F.3d 1012, 1021 (11th Cir. 2016), quoting Hadley v.

Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008).; see also Lee v. Ferraro, 284

F.3d 1188, 1200 (11th Cir. 2002) (holding that once an arrest has been fully

secured and any potential danger or risk of flight vitiated, a police officer cannot

employ severe and unnecessary force). Thus, if the officers punched or choked

Germany after he was subdued or handcuffed, they would not be entitled to

qualified immunity.

Although the officers deny Germany’s allegations, Rule 56 demands the

Court view the evidence in the light most favorable to Germany. A careful review

of the evidence shows that, after the initial strikes, the spraying of the chemical

irritant, and the attempt to wrestle Germany to the floor, all of the bodycam

footage showing the struggle becomes difficult to make out. Because of the

physical nature of the struggle, the footage from all of the relevant cameras is

shaky and does not clearly show what happened for approximately 30 seconds

35

after Germany was taken to the ground. Further, the footage does not clearly show

when Germany was handcuffed so as to allow the Court to determine whether the

officers continued to strike Germany after he was subdued. Additionally, the video

footage does not show whether Germany was choked. Viewing this evidence in

the light most favorable to Germany, the Court must conclude that a genuine

dispute exists as to whether the officers used excessive force in completing

Germany’s arrest. Accordingly, summary judgement is due to be denied as to

whether the officers are entitled to qualified immunity for their actions after

Germany was taken to the ground as alleged in Counts II-V.9

However, insofar as Germany alleged that the officers violated his

constitutional rights by spraying him with a chemical irritant, using hand strikes

before he was taken to the ground, and wrestling him to the ground, the bodycam

footage is clear that those acts were justified under the circumstances. As detailed

9 In his motion for summary judgment, Sellers asserts that his bodycam footage demonstrates

that he did not touch Germany at all during the events in question. A review of that footage

shows that Sellers’s bodycam was knocked off and fell to the ground as the officers entered the

house. See (Doc. 60-19)(Sellers’s Bodycam). That bodycam shows an officer remaining at the

entrance to the house in order to prevent Bey from entering during the arrest. However, the

Court is unable to determine whether that officer is Sellers or some other unidentified officer.

Thus, the Court finds that a dispute exists as to whether Sellers was involved in the events

described above.

36

above, the video clearly shows Germany refuse multiple requests from the officers

and unequivocally state that he had no intention of complying.

Germany also alleged that Officers Wooden, Flannery, and Slater used

excessive force by dragging him out of the house and “slamming him on the

concrete porch.” (Doc. 28, p. 9-10). This appears to relate to the incident

described in the statement of facts in which Germany slipped while being escorted

from his house. As noted, the video evidence clearly shows that, despite the

officers warning him about the upcoming stairs, Germany stumbled after a making

a misstep. However, Germany did not fall to the ground. Further, Germany was

not being dragged by the officers. Rather, he was walking under his own power.

Thus, the video evidence clearly refutes the allegation that those or any other

officers dragged him from his house and “slam[ed] him on the concrete porch.” Id.

Therefore, summary judgment is due to be granted as to Counts III-V insofar as

Germany alleged that Wooden, Flannery, and Slater slammed him on the porch or

otherwise violated his constitutional rights while escorting him to the patrol car.

The Court finds it important to note the extent to which the video evidence

contradicts Germany’s characterization of the events in question. In his responses

to the motions, Germany attempts to compare the events of his arrest to other cases

37

in an attempt to demonstrate that the officers’ conduct was unreasonable.

However, in making comparisons, Germany severely downplays his behavior. For

example, in his response to Hall’s motion for summary judgment, Germany

compares the facts of his case to Longino v. Henry Cty. Georgia, et al., 791 Fed.

Appx. 828 (11th Cir. 2019), an unpublished Eleventh Circuit opinion, and states

that he was “somewhat verbally resistive.” (Doc. 67, p. 26). Having carefully

reviewed the bodycam footage, the Court finds that to be a gross understatement.

In the same response, Germany attempts to argue that his resistance to the officers

was because of his surprise at their presence in his house. Germany explains the

events leading up to the struggle as follows: “[T]he facts of this case show that

Germany, having gone into his den, came upstairs to be unexpectedly faced with

four police officers in his house.” Id. at 24-25. However, the video evidence

clearly refutes this. Officer Hall told Germany that he was going to come into the

house if he refused to come out. Hall and the other officers then immediately

followed Germany into his house and were never more than a few feet behind him

shouting instructions the entire time. Germany appears to take a few steps down

the stairs but quickly turns around and confronts the officers. There was nothing

unexpected about their presence in his house. Having reviewed the video

38

evidence, the Court finds Germany’s characterization of many of the facts to be

refuted.

In sum, the officers are entitled to qualified immunity for their actions prior

to wrestling Germany to the ground. Sellers’s, Hall’s, Wooden’s, Flannery’s, and

Slater’s motions for summary judgment (Docs. 48, 50, 52, 54, and 56) are

GRANTED IN PART as to Counts II-VI insofar as the complaint claims injuries

based on that conduct. Further, Officers Wooden, Flannery, and Slater are entitled

to summary judgment insofar as Germany alleged that they dragged him from the

house and slammed him on the porch. Accordingly, their motions (Docs. 52, 54,

and 56) are GRANTED IN PART on that basis. However, there is a dispute as to

the officers’ conduct after Germany was taken to the ground. Viewing the facts in

the light most favorable to Germany, as the Court is required to do, their motions

for summary judgment (Docs. 48, 50, 52, 54, and 56) are DENIED as to that

alleged conduct.

c. The officers are entitled to partial summary judgment on

Germany’s assault and battery claims because most of

their conduct during Germany’s arrest merits qualified

immunity.

In Counts IX-XIII, Germany asserted claims for assault and battery against

all five officers. In their motions for summary judgment, the defendants have

39

analyzed these claims as if they were brought under state law. Germany’s

complaint is unclear as to whether he seeks to bring these claims under state law or

§ 1983. In his statement of jurisdiction, Germany purports to invoke the Court’s

“state supplemental jurisdiction.” (Doc. 28, p. 1) However, in the prayer for relief

following all of Germany’s and Bey’s claims, the plaintiffs demand “judgment and

punitive damages under Section 1983, in an amount to be determined ….” (Doc.

28, p. 7-17). Given that there is no actionable claim for assault and battery under

the Fourth Amendment, the Court will assume that Germany intended to bring this

claim pursuant to Alabama law.

In his complaint, Germany alleged, as a basis for his assault and battery

claims, that the relevant officers “did punch, kick, and slam [him] without right or

cause to do so.” (Doc. 28, p. 13-19). These are essentially the same allegations

that Germany alleged in claiming that the officers used excessive force.

Accordingly, the Court will analyze these claims together.

In Cantu v. City of Dothan, Alabama, No. 18-15071, 2020 WL 5270645, at

*15 (11th Cir. Sept. 3, 2020) the Eleventh Circuit held:

“The Alabama Supreme Court has largely equated qualified

immunity with [state agent] immunity.” Hunter v. Leeds, 941 F.3d

1265, 1284 (11th Cir. 2019). “Under both Alabama law and federal

law, the core issue is whether a defendant violated clearly established

40

law.” Sheth v. Webster, 145 F.3d 1231, 1239 (11th Cir. 1998). That

means the same facts that establish an officer is not entitled to

qualified immunity “also establish that [she] is not entitled to” state

agent immunity. Hunter, 941 F.3d at 1284.

The converse also holds true. Therefore, summary judgment as to Counts

IX-XIII is due to be granted in part and denied in part for the reasons discussed in

the previous subsection. Thus, Sellers’s, Hall’s, Wooden’s, Flannery’s, and

Slater’s motions for summary judgment (Docs. 48, 50, 52, 54, and 56) are

GRANTED IN PART AND DENIED IN PART as to Counts IX-XIII for the

reasons discussed above.

d. The City is entitled to summary judgment on Germany’s

assault and battery claim because it is immune from tort

liability arising from its officers’ conduct.

In Count VIII of his complaint, Germany alleged a claim of assault and

battery against the City. For the reasons stated in the previous subsection, it is

unclear whether Germany intends to bring this claim under § 1983 or state law.

However, for the reasons described above, the Court will treat Count VIII as if it

asserted a state law cause of action.10

10 As noted in the City’s response, Germany has not stated a § 1983 claim against the City

because he did not plead or prove the existence of a policy or custom that was the moving force

behind any constitutional violation. (Doc. 59, p. 3)(citing Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 694 (1978) and Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

41

With respect to the City’s individual police officers, Ala. Code § 6-5-338(a)

provides in relevant part as follows:

Every peace officer . . . who is employed or appointed pursuant to the

Constitution or statutes of this state, whether appointed or employed as a

peace officer . . . by the state or a county or municipality thereof, . . . and

whose duties prescribed by law, or by the lawful terms of their employment

or appointment, include the enforcement of, or the investigation and

reporting of violations of, the criminal laws of this state, and who is

empowered by the laws of this state to execute warrants, to arrest and to take

into custody persons who violate . . . the criminal laws of this state, shall at

all times be deemed to be officers of this state, and as such shall have

immunity from tort liability arising out of his or her conduct in performance

of any discretionary function within the line and scope of his or her law

enforcement duties.

Ala. Code § 6-5-338(a). As determined in the previous sections, the officers in this

case were performing discretionary functions within the scope of their duties.

Additionally, the officers are entitled to immunity for their actions before the point

at which they wrestled Germany to the ground. However, as noted above, there is

a dispute as to whether the officers are entitled to qualified immunity for their

conduct after taking Germany to the ground.

Where an officer, including a municipal police officer, is entitled to

immunity from tort liability under Ala. Code § 6-5-338(a), the statute extends this

same immunity to the municipality for whom that officer works. See Ala. Code §

6-5-338(b) (“This section is intended to extend immunity only to peace officers

42

and governmental units or agencies authorized to appoint peace

officers.”)(emphasis supplied). Thus, “[i]t is well established that, if a municipal

police officer is immune pursuant to § 6–5–338(a), then, pursuant to § 6–5–338(b),

the city by which he is employed is also immune.” Ex parte City of Tuskegee, 932

So. 2d 895, 910 (Ala. 2005) (quotation omitted). Accordingly, the immunity

extended to the officers in this case described above also extends to the City, and

summary judgment is due to be granted in its favor for the same reasons.

However, summary judgment is due to be denied on this basis as to Germany’s

claims regarding the officers’ conduct after taking him to the ground.

However, the City is entitled to immunity on another ground. In its motion,

the City also argues that it is entitled to immunity under Ala. Code § 6-5-338(a),

and by operation of Ala. Code § 11-47-190, which provides that “[n]o city or town

shall be liable for damages for injury done to or wrong suffered by any person or

corporation, unless such injury or wrong was done or suffered through the neglect,

carelessness, or unskillfulness of some agent, officer, or employee of the

municipality engaged in work therefor and while acting in the line of his or her

duty….” The Alabama Supreme Court has interpreted that section as

“absolve[ing] a city from liability for an intentional tort committed by one of its

43

agents.” Ex parte City of Gadsden, 718 So. 2d 716, 721 (1998). See also Brown v.

City of Huntsville, 608 F.3d 724, 743 (11th Cir. 2010)(“In sum, under § 11-47-190,

a city is liable for negligent acts of its employees within the scope of their

employment, but not intentional torts of its employees.”).

Although the City denies that its officers used excessive force or committed

any other tort, it maintains that all of the officers’ actions were intentional, not

negligent. Indeed, the bodycam footage and officer testimony established that each

of the officers involved in Germany’s arrest acted intentionally, rather than

negligently or carelessly. There is no dispute that Officer Wooden intentionally

deployed his OC spray on Germany and that he did so in compliance with HPD

policy. See, e.g., (Doc. 60-5, p. 12)(Wooden Deposition)(“I used OC spray in order

to control the situation.”). There is no dispute that Officer Hall intentionally used

palm strikes on Germany to gain his compliance. See, e.g., Doc. 60-9, p. 42-

43)(Hall Deposition). There is no dispute that Officer Wooden intentionally struck

Germany to gain his compliance. See, e.g., (Doc. 60-5, p. 14-16)(Wooden

Deposition). There is no dispute that Officer Slater intentionally struck Germany’s

torso to gain his compliance. See, e.g., (Doc. 60-7, ¶ 6)(Slater Declaration). There

is no dispute that Officer Flannery intentionally struck Germany, not just to gain

44

Germany’s compliance but also because he felt his gun move and believed that

Germany was attempting to take it from him. See, e.g., (Doc. 60-6, p. 18-19,

26)(Flannery Deposition). And there is no dispute that the officers intentionally

took Germany to the ground for the purpose of effecting his arrest. See, e.g., (Hall

Bodycam).

In his response to the City’s motion, Germany contends that the officers

were acting in a negligent or unskillful manner by referencing the allegation in his

complaint that the officers “performed their actions in an unskillful manner when

they assaulted and battered” the plaintiffs. (Doc. 70, p. 6), quoting (Doc. 28, p.

12). However, Germany failed to point to actual evidence in the record that would

refute the City’s contention that the officers acted intentionally. A plaintiff’s mere

allegations in a pleading, without more, are insufficient to survive summary

judgment. See, e.g., Levin v. Palm Beach County, 752 Fed. Appx. 734, 739-40

(11th Cir. 2018) (quotation omitted)(“[C]onclusory allegations [are] not sufficient

to oppose a motion for summary judgment.”); Miles v. Celadon Group, Inc., 382 F.

Supp. 3d 1246, 1248 (N.D. Ala. 2019)(noting that party seeking to oppose

summary judgment “may not merely rest on his pleadings”).

45

Furthermore, the dispute in this case is not whether the officers’ acts were

intentional or negligent. The question is whether, once Germany was handcuffed

or subdued, the officers acted at all. Germany says he was unlawfully kicked,

choked, and punched after being handcuffed; the officers deny this. Accordingly,

the City is entitled to immunity from the officers’ actions under Ala. Code § 11-47-

190, and summary judgement is granted in its favor as to Count VIII. Therefore,

the City’s motion for summary judgment (Doc. 58) is GRANTED, and Count VIII

is DISMISSED WITH PREJUDICE.

4. Hall is entitled to summary judgment on Bey’s excessive-force

claim because the video evidence shows he did not act as Bey

alleges.

In Count VII of the complaint, Bey alleged that Officer Hall used excessive

force when he “knock[ed] [her] to the floor to come into her home without a

warrant or any exigent circumstances.” (Doc. 28, p. 11). Bey asserted that she

was not suspected of a crime, was lawfully at her residence, and that no use of

force was warranted against her. However, as has already been determined,

exigent circumstances existed allowing Hall and the other officers to enter the

home without a warrant. Further, the video evidence clearly refutes Bey’s

contention that Hall knocked her to the ground. See (Doc. 60-19)(Sellers

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Bodycam). Rather, Hall merely opens the glass door to enter the house in pursuit

of Germany. The door in turn briefly pinned Bey against the porch rail. At no

point did Hall knock Bey to the ground. Because the video evidence clearly

refutes this contention, summary judgment is granted as to Count VII. See Logan

v. Smith, supra. Accordingly, Hall’s motion for summary judgment (Doc. 50) is

GRANTED IN PART insofar as it pertains to Count VII, and Count VII is

DISMISSED WITH PREJUDICE.

5. Slater is entitled to summary judgment on Bey’s assault and

battery claim because the video evidence shows he did not

knock her down, and his other conduct is protected through

qualified immunity.

In Count XIV of the complaint, Bey alleged assault and battery against

Officer Slater. According to Bey, Slater “did rudely and offensively touch Bey

without permission nor right to do so,” and Slater “knock[ed] her down without

right or cause to do so.” (Doc. 28, p. 16). Again, the bodycam footage clearly

refutes Bey’s contention that Slater knocked her to the ground.

As to whether Slater “rudely and offensively touch[ed]” Bey, the footage

shows that he made contact with her for a few seconds as he passed her in order to

follow Hall and another officer into the house. It is clear from the video that this

de minimis amount of force used by Slater was incidental and necessary to assist

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the other officers in arresting Germany. Thus, the force was applied while Slater

was performing a discretionary function and in no way violated any of Bey’s

constitutional rights. Accordingly, summary judgment is due to be granted as to

Count XIV. Consequently, Slater’s motion for summary judgment (Doc. 56) is

GRANTED IN PART insofar as it pertains to Count XIV, and Count XIV is

DISMISSED WITH PREJUDICE.

6. Wooden, Flannery, and Sellers are entitled to summary

judgment on Bey’s assault and battery claim because Bey’s

allegations are directly controverted by video evidence.

Bey also contends that she properly asserted assault and battery claims

against Officers Wooden, Flannery, and Sellers in Counts X, XI, and XIII

respectively. Although the headings for each of those counts reference only

Germany, the body of each count alleges that the relevant defendant “did shove

Bey without right to do so.” See e.g., (Doc. 28, p. 14). Assuming, without

deciding, that the inclusion of that single allegation in each count suffices to state a

separate claim, the Court still finds that the officers are entitled to summary

judgment. Like Slater, Officers Wooden, Flannery, and Sellers followed Hall into

the house in order to arrest Germany. The video footage clearly shows that none

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of the officers shoved Bey. The footage does show an officer11 holding Bey’s arm

in an attempt to keep her from entering the house while Germany was being

arrested. (Doc. 60-19)(Sellers Bodycam); (Doc. 60-22)(Matthewson Bodycam).

However, after a few seconds, Bey jerks her arm free and falls into the house. It is

clearly seen that her own momentum caused her to fall and that no officer pushed

or shoved her. Because the video footage clearly refutes her allegations, Bey is

entitled to no relief, and summary judgment is granted in favor of all defendants as

to her claims. See Logan v. Smith, supra. Accordingly, Sellers’s, Wooden’s, and

Flannery’s motions for summary judgment (Docs. 52, 54, and 48) are GRANTED

IN PART insofar as they relate to Bey’s assault and battery claims.

IV. Motions for Judgment on the Pleadings (Docs. 48 and 54)

As noted above, Officers Sellers and Flannery contemporaneously moved

for a judgment on the pleadings in their motions for summary judgment. (Docs. 48

and 54). However, both officers’ motions for judgment on the pleadings are based

on their contention that the second amended complaint does not relate back to the

initial complaint and, consequently, fails to state a claim within the applicable

statute of limitations. However, for the above-stated reasons denying the motion to

11 The officer holding Bey’s arm just before she falls appears to be Officer Matthewson.

Mathewson is not a defendant in this case.

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strike the second amended complaint, Officers Sellers’s and Flannery’s motions

(Docs. 48 and 54) are DENIED insofar as they seek judgment on the pleadings

Vv. Conclusion

For the foregoing reasons, the motion to strike the second amended

complaint (Doc. 31) is DENIED; the motion to dismiss the second amended

complaint (Doc. 39) is DENIED; the motion for summary judgment filed by the

City (Doc. 58) is GRANTED; and the remaining motions for summary judgment

(Docs. 48, 50, 52, 54, and 56) are GRANTED IN PART AND DENIED IN

PART as explained above. Insofar as Officers Sellers’s and Flannery’s motion for

summary judgment also moves for judgment on the pleadings (Doc. 48 and 54),

those motions are DENIED.

DONE and ORDERED December 29, 2020.

th □□

LILES C. BURKE

UNITED STATES DISTRICT JUDGE

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