Memorandum Opinion
This cause comes on to be heard on a motion for summary judgment filed by the defendants, the Town of Springville, Alabama (“Springville”), and Officer Christopher Isbell (“Isbell”), on February 12, 1999. In their motion, the defendants contend that the excessive force claims of the plaintiff, Nathan Nolin (“Nolin”), against Isbell are barred by the doctrine of qualified immunity and that the state law claims against Isbell are barred by state-law discretionary function immunity. The defendants further contend that Springville is not liable for any alleged constitutional violation by Isbell because there is no genuine issue of triable fact supporting the averment that Isbell utilized excessive force and because, if such a constitutional violation did occur, no triable issue of fact exists demonstrates that Isbell’s actions were undertaken pursuant to a custom policy or practice of Springville. Finally, Springville contends that it has absolute immunity from state-law claims of liability against it premised on any torts that might have been committed by Isbell. The plaintiff, in its opposition, disputes these contentions.
Summary judgment provides the parties an invaluable opportunity to test the mettle of a case before it ever reaches trial. On a motion for summary judgment, the court assesses all of the proof the parties can bring to bear in order to ascertain whether a genuine need for trial is present.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
A party seeking summary judgment has the initial responsibility of informing this court of the grounds for its motion and specifically identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits that it believes demonstrate the absence of a genuine issue of material fact.
Id.
at 323,
Once the moving party has satisfied this initial burden, however, the nonmoving party “must make a sufficient showing to establish the existence of each essential element to that party’s case, and on which that party will bear the burden of proof at trial.”
Howard v. BP Oil Company,
While the court may consider the offered “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any” in deciding whether to grant or deny a summary judgment motion, Fed.R.Civ.P. 56(c), the Rule “saddles the non-movant with the duty to ‘designate’ the specific facts in the record” supporting its claims.
Jones v. Sheehan, Young & Culp, P.C.,
In resolving whether a given factual dispute requires submission to a jury, the court must inspect the presented evidence through the looking glass of each party’s substantive evidentiary burden.
Anderson, 477
U.S. at 254-55,
Facts
On May 10, 1997, Springville held its annual “May Day” festival, a local event, originally referred to as “Old Times Day,” during which several blocks of the town’s main street, United States Highway 11, were cordoned off for a community celebration. Vendors were placed along the street, selling arts, crafts and food. Children’s rides lined the road. Two “stages” 1 were set up in parking lots abutting the highway, from which various musical troupes entertained the crowd. Around noon that day, a local musical act, named Empire X, played on the stage located in the parking lot off of the highway between the Springville Café and Harrison Hardware. The group exhausted its musical retinue within forty-five minutes and, at the completion of its “set”, the members of Empire X began, with the assistance of the *898 plaintiff and some others to remove the band’s equipment from the stage.
While the plaintiff loaded the equipment into one car, one of the band members, Gary Dollar (“Dollar”), drove closer to the stage in order to ease the process of putting the equipment away. Accompanying Dollar in his car was Shawn Peede (“Peede”), another member of the band. As Nolin, returning to the stage to gather more equipment, passed Dollar’s car, Dollar revved the automobile engine, attracting Nolin’s attention. The plaintiff lifted one of his legs into the air in the gesture of a kick directed at the bumper of Dollar’s ear.
With mock seriousness and bravado, Peede lept out of the passenger side of the automobile and began to wrestle with Nolin. The two began an adolescent tussle, laughing the entire time. They grappled with one another for a moment, until the two lost balance and fell against the hood of Dollar’s car. Close by, the boys heard a woman, Nancy Butler, snap her fingers at them and tell them to stop fooling around. Nolin stood up, grabbed Peede’s leg and pulled him off of the car. Peede fell on the pavement. The plaintiff then good-naturedly aided Peede to his feet. Both attempted to return to the business of loading the musical equipment into the cars.
Inside the Springville Café sat Isbell, along with a Reserve Officer Eddie Barrett, eating lunch. Next to them was crouched the local Chief of Police, Ronald Black (“Black”). Through the morning, the three officers had been patrolling the grounds of the May Day festival, directing traffic and attempting to avert trouble. As they rested there, Betty, a waitress at the café, entered the room in which they sat, stopped, peered out the café window to where Nolin and Peede were roughhousing, and yelled “fight.” The officers looked over and saw Nolin and Peede, wrestling on the hood of Dollar’s car. The three leapt up and ran for the double doors leading directly into the parking lot. Finding these locked, the officers then left the cafe by the main door, which faced the highway.
By the time the officers had exited the building and made their way to the parking lot, the plaintiff and Peede had finished their tussle and were returning to work. Nolin was ambling back to the stage when he felt one hand take hold his left shoulder and another grasp his right wrist. Isbell, who had grabbed the plaintiff, wrenched the plaintiffs wrist behind him. Nolin did not resist. Isbell then shoved the plaintiffs face and chest into a van to his left. The officer’s hand pushed Nolin’s head against the van. Isbell’s knee dug into the plaintiffs back. The plaintiff was then made to stand spread-eagle against the van while Isbell frisked him. Isbell asked Nolin his age, to which Nolin responded that he was seventeen. Nolin’s hands were then handcuffed together by Isbell. Chief of Police Black brought Peede over to the van and frisked him there. Upon asking the officers what he and Nolin had done, Isbell answered Peede that he and Nolin were under arrest for disorderly conduct.
Isbell took Nolin and, soon after, Peede, both of whom protested that they had been playing to a street corner and made them sit. He would hear none of their explanations. Some other youths came over to where Isbell was standing and attempted to explain that the two had been engaged in a friendly tussle. Isbell reacted hostilely, telling them all to sit on the corner next to Peede and Nolin and yelling for someone to turn off the recorded music that had been playing while the equipment of Empire X was being removed from the stage. The officer began to proselytize, calling the sitting youths “long-haired acid freaks” and troublemakers, and telling them that every time a “show like this” came to Springville he had to run it out of town. Isbell’s tirade about the degeneracy of the youth continued until Captain John Goodwin, another Springville police officer, ar *899 rived in his patrol car to transport Peede and Nolin to the Ashville jail.
Once at the jail, Goodwin filled out the intake paper work for Peede and then began to fill out the same paperwork for Nolin. After determining that Nolin was a juvenile, Goodwin stopped filling out the paperwork and, after a consultation with a juvenile officer, left the plaintiff alone in a room to wait until his mother came to retrieve him. The charges of disorderly conduct were subsequently dropped.
Contentions & Analysis
The plaintiff apparently raises both federal claims and state law claims against Officer Isbell and against Springville. In his complaint, Nolin contends that Isbell, in effectuating his arrest of Nolin, used excessive force in violation of the Fourth Amendment when he threw Nolin against the van, dug his knee into Nolin’s back and over-tightly handcuffed him. This alleged constitutional violation forms the basis for the plaintiffs claims that Springville and Isbell are liable under 42 U.S.C. § 1983 for the use of the force. The plaintiff also claims that in arresting him, Isbell committed the state-law torts of assault and battery, outrage, abuse of process, false arrest and false imprisonment. In response to the plaintiffs claims brought pursuant to § 1983, the defendant asserts that no constitutional violation occurred; that if such a violation occurred, Isbell is entitled to qualified immunity from suit arising out of the violation; and that Springville did not have a custom, policy or practice permitting it to be held liable for Isbell’s actions in the instant case. The defendant also assets that Isbell is entitled to discretionary function immunity for alleged state-law torts committed by him and that the plaintiff fails to state a claim against Isbell in any case. On behalf of Springville, the defendants assert that town cannot be held liable for any of the torts committed by Isbell.
I. Claims brought puRsuant to section 1983 of Title 42.
The plaintiff claims that in throwing him against the van, causing bruises to his chest and head, kneeing him in the back and bruising him by placing handcuffs on him too tightly, Isbell used excessive force, violating his Fourth Amendment right against unreasonable searches and seizures. The defendants respond that, even assuming that Isbell’s actions were as reported by the plaintiff, those actions were insufficiently egregious to violate the Fourth Amendment and that, even were they so egregious, Isbell is protected by qualified immunity from suit and, in the absence of a custom, policy or practice of the use of excessive force, Springville cannot be held hable for any violation by Isbell.
Prior to addressing either the issue of qualified immunity or the issue of municipal liability, it is appropriate to determine whether, in the instant case, there has been a violation of the plaintiffs Fourth Amendment rights. A finding that no constitutional violation occurred will obviate the necessity of any further examination into the sometimes contorted and mind-numbing issues of the existence of “clearly-established law” prehensible by a reasonable officer from the facts and of the presence of a “custom, policy or practice” of the municipality.
See County of Sacramento v. Lewis,
A. Excessive force.
In
Screws v. United States,
From this humble origin, the various circuits began to recognize claims of excessive force, not only in those circumstances in which a victim died as a result of the inappropriately used force,
see, Jenkins v. Averett,
Given the apparent Fourteenth Amendment origins of the prohibition against excessive force in
Screws,
it is unsurprising that, at the hands of the circuit courts, the excessive force claim evolved into a right insured by substantive due process clause,
*901
rather than as a claim specific to a particular right listed in the first eight Amendments to the Constitution.
See Hamilton v. Chaffin,
In
Tennessee v. Garner,
In
Graham v. Connor,
Determining' whether the force used to effect a particular seizure is “reasonable” under the Fourth Amendment requires' a careful balancing of “ ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ ” against the countervailing governmental interests at stake. [Tennessee v. Garner, 471 U.S.] at 8[ ], [105 S.Ct. 1694 ] quoting United States v. Place,462 U.S. 696 , 703, [103 S.Ct. 2637 ,77 L.Ed.2d 110 ][ ] (1983). Our Fourth Amendment jurisprudence 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. See Terry v. Ohio,392 U.S., at 22-27 , [88 S.Ct. 1868 ][ ]. Because “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” *902 Bell v. Wolfish,441 U.S. 520 , 559, [99 S.Ct. 1861 ,60 L.Ed.2d 447 ][ ] (1979), however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner,471 U.S., at 8-9 , [105 S.Ct. 1694 ][ ] (the question is “whether the totality of the circumstances justifie[s] a particular sort of ... seizure”).
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. See Terry v. Ohio, supra,392 U.S., at 20-22 , [88 S.Ct. 1868 ][ ]. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, Hill v. California,401 U.S. 797 , [91 S.Ct. 1106 ,28 L.Ed.2d 484 ][ ] (1971), nor by the mistaken execution of a valid search warrant on the wrong premises, Maryland v. Garrison,480 U.S. 79 , [107 S.Ct. 1013 ,94 L.Ed.2d 72 ][ ] (1987). With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” Johnson v. Glide,481 F.2d, at 1033 , violates the Fourth Amendment. 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.
As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. See Scott v. United States,436 U.S. 128 , 137-139, [98 S.Ct. 1717 ,56 L.Ed.2d 168 ][ ] (1978); see also Terry v. Ohio, supra,392 U.S. at 21 , [88 S.Ct. 1868 ][ ] (in analyzing the reasonableness of a particular search or seizure, “it is imperative that the facts be judged against an objective standard”). An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional. See Scott v. United States, supra,436 U.S. at 138 ,98 S.Ct. at 1723 , citing United States v. Robinson,414 U.S. 218 , [94 S.Ct. 467 ,38 L.Ed.2d 427 ][ ] (1973).
Graham v. Connor,
In the aftermath of
Graham,
the Eleventh Circuit Court of Appeals has developed a different approach to excessive force claims than that pursued originally.
4
The approach developed is fact sensitive, examining whether any of the force used was necessary to effect the arrest and, of the force that was not, whether it was reasonable in light of the factors announced in
Graham,
i.e., “the severity of the crime, whether the suspect poses an immediate threat, and whether the suspect is resisting or fleeing.”
Post v. Fort Lauderdale,
The defendants in the instant action, claiming that the force utilized by Isbell was de minimis, seek to have this court conclude that the Fourth Amendment claim of the plaintiff is not viable. Three recent cases by the Eleventh Circuit Court of Appeals have impliedly, if not explicitly, utilized a de minimis force rule in denying excessive force claims. In
Post v. Fort Lauderdale,
The de minimis rule, as expressed in these cases, is little more than a holdover from the Eleventh Circuit’s pr
e-Graham
caselaw.
Post
employed the analysis of excessive force under substantive due process in resolving the qualified immunity issue while it used the Fourth Amendment analysis with respect to the then present state of constitutional law. Subsequent cases in the Eleventh Circuit have taken the de minimis discussion from
Post,
in which the court analyzed whether under pr
e-Graham
case law the constitutional right at issue was clearly established, and applied it to the qualified immunity analysis in essentially
post-Graham
cases. Nonetheless, the oversight embodied de minimis standard would be permanently ensconced as the incontrovertible law of the circuit,
see United States v. Hogan,
The plaintiff first asserts that, in the absence of probable cause to arrest the plaintiff, no amount of force used against the plaintiff could be reasonable. It is not correct that any use of force by an officer not premised on probable cause incident to an arrest is excessive: for. example, an officer is expected occasionally to use some degree of force in effectuating a
Terry
stop premised on mere reasonable suspicion to believe that criminal activity “may be afoot.”
Terry v. Ohio,
In dealing with probable cause, how-t ever, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.
‘The substance of all the definitions’ of probable cause ‘is a reasonable ground for belief of guilt.’ McCarthy v. Dearmit,99 Pa. 63 , 69, quoted with approval in the Carroll opinion. 267 U.S. at page *905 161, [45 S.Ct. 280 ][ ]. And this ‘means less than evidence which would justify condemnation’ or conviction, as Marshall, C.J., said for the Court more than a century ago in Locke v. United States,7 Cranch 339 , 348, [3 L.Ed. 364 ][ ]. Since Marshall’s time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where ‘the facts and circumstances within their (the officers’) knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. Carroll v. United States,267 U.S. 132 , 162, [45 S.Ct. 280 ,69 L.Ed. 543 ][ ].
Brinegar v. United
States,
The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause. The first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact: “[T] he historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.” Pullman-Standard v. Swint,456 U.S. 273 , 289, n. 19, [102 S.Ct. 1781 ,72 L.Ed.2d 66 ][ ] (1982).
Id.
at 696-97,
The issue here is not whether the facts, as surmised by Nolin or Peede, would constitute disorderly conduct, even though mere horseplay is likely not encompassed within the meaning of § 13A-11-7 of the Code of Alabama. The issue for the court to decide is whether, from the facts known by Isbell at the time of the arrest, an objectively reasonable police officer had sufficient information to justify the conclusion that the plaintiff was engaging in disorderly conduct — i.e., engaging “in fighting or in violent tumultuous or threatening behavior.” There is no dispute that, from their vantage point inside of the café, Isbell, Black and Barret saw two men struggling atop an automobile. They had heard someone yell “Fight.” The officers did not hear the adolescents laughing; they did not see the events leading up to the tussle., What the officers saw was a *906 brawl. There was, therefore, a reasonable basis on which a reasonable officer could conclude that Nolin and Peede were fighting in violation of the disorderly conduct statute.
How Isbell behaved once he had probable cause to believe that Nolin and Peede were disorderly, and the manner in which he proceeded to arrest the plaintiff is more questionable. The plaintiff and Peede had ceased fighting. The offense of disorderly conduct, which Isbell had probable cause to suspect Nolin had committed, is a relatively minor one, a class C misdemeanor under Alabama law. Further, there was no indication that the plaintiff posed any threat to Isbell. Given Isbell’s antagonism to “long-haired acid freaks,” from Isbell’s estimation a class into which the plaintiff fell, the court considers whether Isbell’s belief that the plaintiff posed a threat is what it seems. Indeed, a reasonable trier of fact could conclude that, from the position of a reasonable officer, Nolin made no attempt to threaten anyone and did not pose a threat to the officer. Further, it is undisputed by the parties that the plaintiff made no attempt to resist Isbell’s arrest of him. The court concludes that, in arresting the plaintiff, Isbell violated the Fourth Amendment’s protection against unreasonable searches and seizures.
B. Qualified Immunity.
Isbell claims that he is protected by qualified immunity from suit from the plaintiffs claims of excessive force brought pursuant to §§ 1983 and 1985(c). “Qualified immunity protects government officials performing discretionary functions from civil trials (and the other burdens of litigation, including discovery) and from liability if their conduct violates no ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ”
Lassiter v. Alabama A & M University,
“When a defendant government official raises the defense of qualified immunity, first he must prove that ‘he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.’ ”
Suissa v. Fulton County, Ga.,
This court’s inquiry must therefore focus on whether a reasonable officer would find that Isbell’s acts violated clearly established law existing at the time of the alleged constitutional violation. “For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all
*907
reasonable government actors, in the defendant’s place, that ‘what he is doing’ violates federal law.”
Lassiter v. Alabama A & M University, Bd. of Trustees,
In resolving whether the defendant officer is entitled to qualified immunity from the plaintiffs claim of excessive force, this court must determine whether “the official’s conduct lies so obviously at the very core of what the Fourth Amendment prohibits that the unlawfulness of the conduct was readily apparent to the official, notwithstanding the lack of caselaw.”
Smith v. Mattox,
C. Municipal liability.
The Supreme Court has placed strict limitations on municipal liability under section 1983. There is no respondeat superior liability making a municipality liable for the wrongful actions of its police officers in making a false arrest. See Monell v. Department of Social Servs.,436 U.S. 658 , 691, [98 S.Ct. 2018 ,56 L.Ed.2d 611 ][ ] (1978). Instead, a municipality may be held liable for the actions of a police officer only when municipal “official policy” causes a constitutional violation. See id. at 694-95, [98 S.Ct. 2018 ][ ]. [A plaintiff] must “identify a municipal ‘policy’ or ‘custom’ that caused [his] injury,” Board of County Com’rs v. Brown,520 U.S. 397 , 403-05,117 S.Ct. 1382 , 1388, [137 L.Ed.2d 626 ] (1997) (citing Monell,436 U.S. at 694 ,98 S.Ct. 2018 ); “It is only when the ‘execution of the government’s policy or custom ... inflicts the injury’ that the municipality may be held liable under § 1983.” City of Canton v. Harris,489 U.S. 378 , 385, [109 S.Ct. 1197 ,103 L.Ed.2d 412 ][ ] (1989).
Gold v. City of Miami,
To establish a “deliberate or conscious choice” or such “deliberate indifference,” a plaintiff must present some evidence that the municipality knew of a need to train and/or supervise in a particular area and the municipality made a deliberate choice not to take any action. See Board of County Com’rs v. Brown,520 U.S. 397 , 407-11,117 S.Ct. 1382 , 1390-91, (1997); Young v. City of Augusta, Georgia,59 F.3d 1160 , 1171-72 (11th Cir.1995); Church v. City of Huntsville,30 F.3d 1332 , 1342-46 (11th Cir.1994); Wright v. Sheppard,919 F.2d 665 , 674 (11th Cir.1990); Kerr v. City of West Palm Beach,875 F.2d 1546 , 1556-57 (11th Cir.1989). This Court repeatedly has held that without notice of a need to train or supervise in a particular area, a municipality is not liable as a matter of law for any failure to train and supervise. For example, in Wright v. Sheppard,919 F.2d 665 (11th Cir.1990), this Court held that a sheriffs department was not liable for a deputy’s acts when “no evidence of a history of widespread prior abuse ... put the sheriff on notice, of the need for. improved training or supervision.” Id. at 674. Indeed, in Church v. City of Huntsville,30 F.3d 1332 (11th Cir.1994), this Court reversed a district court’s preliminary injunction against the City of Huntsville, holding that the plaintiffs were not likely to succeed on the merits of their failure-to-train claim without proof that the City was aware of a prior incident in which constitutional rights were similarly violated. Id. at 1342-46. See also Popham v. City of Talladega,908 F.2d 1561 , 1564-65 (11th Cir.1990) (finding no liability for failure to train when no pattern of incidents put the City on notice of a need to train). More importantly, in Brooks v. Scheib,813 F.2d 1191 (11th Cir.1987), even though there had been ten citizen complaints about police officer Scheib, this Court held that the City did not have any notice of past police misconduct because the plaintiff “never demonstrated that past complaints of police misconduct had any merit.” Id. at 1193. This Court aptly noted, “Indeed, the number of complaints bears no relation to their validity.” Id.
Gold v. City of Miami,
Although the policy manual of the police department of Springville explicitly prohibits the use of force, the plaintiff apparently argues that the city failed to enforce that policy when Isbell had violated it in the past. While the plaintiff has presented, in the deposition of Isbell some testimony that Isbell has had prior excessive force lawsuits filed against him, no evidence has been proffered as to the outcome or settlement of such suits or whether, subsequent to the outcome or settlement of those suits, Isbell was required to undergo any training regarding the use of force. Isbell, in deposition testimony, listed five suits against him, two of which this court determined from the court files,
Percy Moore v. Isabell,
87-CV-133-M,
10
and
Engle v. Isbell,
95-CV-489-M,
11
were settled, and two of which the court has not found, but as to which Isbell admits were also settled, one brought by Roger Wood-ham for excessive force and another brought by Royce Doyle Gray for exces
*909
sive force;
12
the court has discovered another suit,
Bailey v. Springville,
86-CV-265-M, a civil rights claim of an unspecified sort which was subsequently dismissed. The number of these prior cases is extreme. And while most of these cases were settled and not resolved on the merits, the fact that the merit of such claims was never determined does not rob them of their significance in demonstrating that Springville knew of the existence of a possible problem, particularly when the majority of the complaints involve the same kind of constitutional violation, i.e., use of excessive force. The facts that such a large number of prior settled cases involving excessive force by Isbell exist, that the police department consisted of fewer than five individuals so that all members of the department would know of any claims against Isbell, that use of force training was apparently not required of Isbell after each of these events, and that nodisciplinary action was taken against Isbell after each of these events evinces sufficient deliberate indifference on the part of Springville to excessive force claims against Isbell that a reasonable trier of fact could find Springville liable for Isbell’s actions.
See Vann v. City of New York,
Plaintiff also attempts to hinge municipal liability on Black’s failure to intercede in Isbell’s use of force. An officer who sees and is capable of intervening in another officer’s use of excessive force, has a duty to intervene. See
Ensley v. Soper,
II State Law Claims.
The plaintiff contends that in arresting him, Isbell committed the state-law torts of assault and battery, outrage, negligent use of force, negligent hiring, training and supervision of Isbell, abuse of process, false arrest and false imprisonment. The defendants argue that Isbell is entitled to discretionary function immunity for alleged state-law torts committed by him and that the plaintiff fails to state a claim against Isbell in any case. On behalf of Springville, the defendants assert that town cannot be held liable for any of the torts committed by Isbell.
A. Discretionary function immunity.
The defendants claim that Isbell is entitled to discretionary function immunity for his acts. Discretionary function immunity is the state-law equivalent of qualified immunity, giving an officer immunity from suit in those instances in which he is performing a discretionary function and reasonable officer in his position would not have found his acts to be a violation of clearly established constitutional law. See Ala.Code § 6-5-338.
If [the] acts [of a defendant] were discretionary acts, the burden shifts to the *910 plaintiff to demonstrate that the defendants acted in bad faith, with malice or willfulness in order to deny them immunity. “Acts of such nature are not considered by Alabama law to be discretionary.” Wright v. Wynn,682 So.2d 1 , 2 (Ala.1996). Discretionary acts have been defined as “those acts as to which there is no hard and fast rule as to the course of conduct that one must or must not take and those acts requiring exercise in judgment and choice and involving what is just and proper under the circumstances.” Id. at 2. See also L.S.B. v. Howard,659 So.2d 48 , 44 (Ala.1995).
Sheth v. Webster,
B. Viability of claims.
The defendants claim that the plaintiff cannot state his false arrest, false imprisonment, malicious abuse of process, outrage, assault and battery and negligence-type claims because Isbell had probable cause to arrest the plaintiff. The court will examine each of these claims in order.
1. False arrest and imprisonment.
The plaintiff claims that he was falsely arrested and imprisoned under Alabama law when he was arrested and when he was taken to the Ashville jail for processing even after probable cause had evaporated when it became clear that the plaintiff was not fighting with Peede. Under Alabama law, “[fjalse imprisonment consists in the unlawful detention of the person of another for any length of time whereby he is deprived of his personal liberty.” Ala.Code § 6-5-170. “If there is a detention of the person by another, and that detention is unlawful, this will constitute false imprisonment.”
Sokol Bros. Furniture Co. v. Gate,
The plaintiffs false arrest claim and his false imprisonment claim based upon the false arrest claim fail. To defeat a false arrest claim, however, all that an
*911
officer is required to demonstrate is that he had probable cause for the arrest made.
See Upshaw v. McArdle,
At the same time, not all false imprisonment claims involving the jailing of an individual are predicated on a false arrest of the individual. In
Hayes v. Mitchell,
Two great and vital principles of Government are to be kept steadily in view, in pronouncing on conduct, such as is brought to view in this record; the liberty of a citizen, and the péace and repose of society. Civil liberty is natural liberty, shorn of excesses which invade and trench on the equal liberty of others. No one can claim the right to violate the law, and precautionary force is justified, to prevent a greater impending evil. Such force, however, is in its nature remedial, and can be carried no further than is reasonably necessary to prevent the threatened wrong. Prevention is less hurtful than redress, and when prudently exercised, is not only justified, but is commended of the law....
The rule we declare in this case, must be applicable more or less to all municipalities; particularly to corporations having powers of local government. Possibly in cities and large towns, there. is nee of greater license in the matter of making arrests, and of detention, without warrant; but it culminates at last in the inquiry, what is reasonably demanded, to guard and protect the public peace. The time of day or night, the surrounding circumstances, the peaceful or riotous conduct of the public, the necessity real or apparent that the arresting officer shall be alert to prevent other acts of violence or lawless disturbance, the accessibility of the mayor or other magistrate, all these enter into the inquiry, what is the duty of the arresting officer.... Let it be borne in mind, we are dealing with a case where the arrest is rendered lawful by the misconduct of the person arrested, and not with a case of causeless or wanton arrest. If the arrest in this case was without cause, of course no circumstances could justify the imprisonment.
... The right to imprison was a question for the jury, under appropriate instructions. There should certainly be no imprisonment, unless the circumstances rendered such imprisonment necessary.
Id. at 454-55.
In
Simpson v. Boyd,
[C]harge 6 was bad in instructing for the defendant if the original arrest was made in good faith, and unless Simpson had no reasonable cause to believe that *912 the plaintiff was the man wanted in Chambers county. All of this may have been true when the arrest was made, but there was evidence from which the jury could infer that [the defendant] discovered the fact that the plaintiff was not the right man upon reaching Birmingham and subsequently took him to Chambers county and placed him in jail, and which could amount to false imprisonment notwithstanding the original arrest may have been made under the circumstances hypothesized in the charge.
Id.
The court also notes the case of
Upshaw v. McArdle,
In
Karrick v. Johnson,
While, there is no specific, on-point decision establishing the existence of a claim of false imprisonment where a plaintiff is left in police custody beyond the time when evidence wholly and clearly negating the existence of any crime comes into the hands of the police, the court opines that precedent permits such a claim. Although after a complaint is filed against the plaintiff and he is held for trial, the police no longer have the authority to effect the plaintiffs release, prior to that time, an officer can liberate a suspect once he or she learns of facts that obviate the existence of any crime. A reasonable trier of fact could conclude that promptly after arresting the plaintiff, Isbell was confronted with facts indicating that Nolin and Peede were merely engaging in friendly roughhousing, not punishable under the disorderly conduct statute. As such, the plaintiffs false imprisonment claim will remain.
The defendants sole argument against municipal liability for false imprisonment is that the Supreme Court of Alabama has held that Springville cannot be held liable for Isbell’s tortious actions, citing
Brooks v. City of Birmingham,
This court affirms the holding of Neighbors v. City of Birmingham,384 So.2d 113 (Ala.1980)—that a municipality is immune from a malicious prosecution claim—but rejects the extension of Neighbors to provide immunity to claims of false arrest and imprisonment brought under Ala.Code 1975, § 11-47-190. Any language to the contrary contained in ... Brooks v. City of Birmingham,584 So.2d 451 (Ala.1991), is overruled.
Id. at 852. Such liability can exist where, as is the case here, the liability against the municipal entity is premised on its “neglect, carelessness, or unskillfulness” of its officers due to inadequate training. Id.
*913 2. Malicious prosecution/abuse of process.
It is not clear whether in the instant action the plaintiff is alleging abuse of process, malicious prosecution, or both. “[A]n abuse of process ... [is] distinguished from the action of malicious prosecution; the chief distinction being that the former rests upon the improper use of a regularly issued process, while the latter has reference to the wrong in the issuance thereof.”
Clikos v. Long,
Under Alabama law, “malicious prosecution actions are not favored.”
Skinner v. Etheridge,
Abuse of process is “perversion of a regular and valid process, which has been duly and properly issued, whereby a result not lawfully or properly attainable under it is secured.”
Dempsey v. Denman,
3. Outrage.
The plaintiff claims that the acts of Isbell constituted outrageous conduct. To prove a claim of outrage, a plaintiff must show “(1) that the defendant’s conduct was intentional or reckless; (2) that it was extreme and outrageous; and (3) that it caused emotional distress so severe that no reasonable person could be expected to endure it.”
Ex parte Crawford & Co.,
4. Assault and Battery.
In
Wright v. Wright,
This Court has defined “assault” as
“ ‘an intentional, unlawful offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the party alleging the assault a wellfounded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented.’ ”
Allen v. Walker,569 So.2d 350 , 351 (Ala.1990), quoting Western Union Telegraph Co. v. Hill,25 Ala.App. 540 , 542,150 So. 709 , 710, cert. denied,227 Ala. 469 ,150 So. 711 (1933), as quoted in Holcombe v. Whitaker,294 Ala. 430 , 435,318 So.2d 289 , 294 (1975). A successful assault becomes a battery, which consists of the touching of another in a hostile manner. Surrency v. Harbison,489 So.2d 1097 , 1104 (Ala.1986), citing *914 Singer Sewing Machine Co. v. Methvin,184 Ala. 554 , 561,63 So. 997 , 1000 (1913).
The court cannot but conclude that Isbell’s “touching” of the plaintiff was hostile.
Franklin v. City of Huntsville,
Conclusion
For the foregoing reasons, the defendants’ motion for summary judgment will be GRANTED, in part, and DENIED, in part. The plaintiffs claims of false arrest, malicious prosecution/abuse of process and outrage will be DISMISSED, with prejudice. The remaining claims are as follows:
1. Excessive force in violation of the Fourth Amendment against both Isbell and Springville;
2. False imprisonment against both Is-bell and Springville; and
3. Assault and battery against both Is-bell and Springville.
The plaintiff is not entitled to recover punitive damages from Springville.
Notes
. Actually, each stage consisted of a flatbed truck.
. In Lewis, the Supreme Court clarified the rationale behind resolving the substantive issues in a qualified immunity case before addressing the question of whether the law was clearly established at the time of the violation:
... [T]he generally sound rule of avoiding determination of constitutional issues does not readily fit the situation presented here; when liability is claimed on the basis of a constitutional violation, even a finding of qualified immunity requires some determination about the state of constitutional law at the time the officer acted. What is more significant is that if the policy of avoidance were always followed in favor of ruling on qualified immunity whenever there was no *900 clearly settled constitutional rule of primary conduct, standards of official conduct would tend to remain uncertain, to the detriment of both officials and individuals. An immunity determination, with nothing more, provides no clear standard, constitutional or non-constitutional.
County of Sacramento v. Lewis,
523 U.S. at -,
The court is also aware of
Santamorena v. Georgia Military College,
The only way in which this court can square the two apparently conflicting pronouncements in
Lewis
and
Santamorena
is to treat the holding of
Santamorena
to allow this court
the option
to avoid a difficult constitutional question in a case in which it is obvious that no right was clearly established at the time of a defendant’s actions.
See also Medeiros v. O’Connell,
. The Eighth Amendment, by contrast, governs the standards for excessive force with regard to post-trial incarcerated individuals.
See Farmer v. Brennan,
. In fact,
Graham
did not result in an overnight change in the approach in the Eleventh Circuit to excessive force claims.
See Moore v. Gwinnett County,
. Leslie was a pre-Graham case under which the de minimis standard was employed.
.
In Walker v. Mortham,
We believe that the latter of these conflict rules—the "earliest case” rule—is the correct one, because of the importance of the prior precedent rule, The prior precedent rule, which binds later panels to the decisions of former panels, is essential to maintaining stability in the law. The rule is "emphatic” and "firmly established” in the Eleventh Circuit. See Cargill v. Turpin,120 F.3d 1366 , 1386 (11th Cir.1997); United States v. Hogan,986 F.2d 1364 , 1369 (11th Cir.1993); see also United States v. Steele,117 F.3d 1231 (11th Cir.1997) (following prior precedent despite explicit disagreement), rev’d on other grounds, United States v. Steele,147 F.3d 1316 (11th Cir.1998) (en banc). Of course, by adopting the "earliest case” rule to resolve intra-circuit splits, we are still in a sense ignoring the prior panel precedent rule—by choosing one line of cases, we are implicitly overruling the other line of cases. This is, however, a necessary consequence of an intra-circuit split, and the rule we adopt is more respectful of the *904 prior panel precedent rule than the alternative "common sense and reason” rule, which essentially tells judges that once they find a division of authority they are free to throw precedent to the wind.
(Footnotes omitted).
. It is not clear that this should impact the court's consideration of whether an absence of probable cause should make any application of force unreasonable, as the court is uncertain whether the application of excessive force in this sort of scenario is governed by the search and seizure clause Fourth Amendment or the due process clause of the Fourteenth Amendment.
. The Eleventh Circuit Court of Appeals has recently made intonations about "arguable probable cause" being the standard in the qualified immunity context. As it is articulated — "whether reasonable officers in the same circumstances and possessing the same knowledge as the Defendants could have believed that probable cause existed”,
Von Stein v. Brescher,
. The court notes that it is at least arguable that the answer to the question of whether an officer is acting within his discretionary powers at the time of the constitutional violation is possibly a matter of state, rather, than federal law. The court has found no opinion from the Eleventh Circuit Court of Appeals addressing this matter and this courL refuses to examine the matter at this time, as any resolution would not alter the outcome in this motion.
. Moore involved an excessive force claim.
. Engle involved a claim that Isbell had used his position as a police officer to force sex upon the plaintiff.
. The event’s involving Woodham gave rise to a criminal case in which Isbell was acquitted. Isbell indicates that the fifth suit that he refers to, brought by Sarah Frost, may have been settled. Frost's claims included, according to Isbell, a claim for false arrest and perhaps a claim of excessive force.
. The court notes that, in any case, the plaintiff is incapable of recovering punitive damages against the municipality for either the plaintiff's federal claims or his state-law claims.
See City of Newport v. Fact Concerts, Inc.,
. The court finds that the plaintiff's negligence and negligent supervision claims are bound up in these other torts in which the defendants allegedly engaged. This the court has discussion of them has been interspersed throughout its discussion of those claims.