IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

FELICIA MARTINEZ, et al., )

)

Plaintiffs, )

)

v. ) Case No. 1:06-cv-636-WKW [wo]

)

TRACEY McCORD, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Before the court is the Motion to Dismiss or in the Alternative for Summary Judgment

(Doc. # 62) filed by Deputy Sheriff Tracey McCord (“McCord”) and the Motion to Dismiss

or in the Alternative for Summary Judgment (Doc. # 83) filed by Investigator Ronnie

Williamson (“Williamson”). The defendants are sued under 42 U.S.C. § 1983 in their

individual capacities only.

Both McCord and Williamson argue they are entitled to qualified immunity for the

federal law claims. McCord argues he is entitled to state immunity for the state law claims

because he is an officer of the state who was performing his duty. Williamson, on the other

hand, argues he is entitled to State-agent immunity for the state law claims because he was

acting as a peace office in the performance of his duties. Upon careful review of the

briefings and submissions of the parties, McCord and Williamson’s alternative motions for

summary judgment are due to be granted in part and denied in part for the reasons set forth

Case 1:06-cv-00636-WKW-WC Document 99 Filed 05/08/08 Page 1 of 22
 Even though both defendants provide matters outside of the pleadings, the court need 1

not convert the defendants’ motions to dismiss under Rule 12(d) of the Federal Rules of Civil

Procedure because the defendants filed summary judgment motions in the alternative. Ventrassist

Pty Ltd. v. Heartware, Inc., 377 F. Supp. 2d 1278, 1286 n.7 (S.D. Fla. 2005) (finding that

converting a motion to dismiss would render the alternative motion for summary judgment

superfluous). Therefore, instead of converting the motions to dismiss, the court finds they are

due to be denied. The defendants’ alternative motions for summary judgment will be considered

instead, as urged by the plaintiffs. (Pls.’ Resp. Br. to McCord 1 n.1.) 

 The two warrants were for mobile homes at 43 Pitts Drive and 81 Pitts Drive to search 2

for methamphetamine, currency, and drug related paraphernalia, seen in the possession of

Juvenal Martinez by a reliable confidential informant. (Doc. # 84-3.)

2

below.1

I. FACTS AND PROCEDURAL HISTORY

This case arises out of searches of two mobile homes for methamphetamine, currency,

and drug paraphernalia under a Houston County, Alabama search warrant dated January 17,

2006. (Doc. # 84-3.) One of the mobile homes was occupied by Plaintiffs Felicia Martinez

(“Martinez”) and her two minor children. Prior to the searches, a formal briefing was given

at the Houston County Sheriff’s Office where Houston County, the lead agency of a multiagency operation, explained the nature, scope, and plan for the searches. (Whittle Decl. ¶ 5.)

The briefing lasted approximately twenty to thirty minutes and was primarily conducted by

McCord, the commander of the Houston County narcotics unit. (Id.) During the briefing,

Deputy Flathmann stated that he had obtained search warrants for the two premises.2

(Williamson Aff. ¶ 8.) At the briefing it was explained that Oscar and Juvenal Martinez were

known to frequent the mobile homes and use them in their narcotics operations, and both

subjects were believed to be armed and dangerous. (Whittle Aff. ¶¶ 6-8.) Juvenal is the

Case 1:06-cv-00636-WKW-WC Document 99 Filed 05/08/08 Page 2 of 22
 McCord claims that the SWAT team had its own chain of command and formulated its

3

own plan for making the initial entries, that he had no personal involvement in the SWAT team’s

planning for their entry and securing of the site, and that he was not briefed on the SWAT team’s

operational plan for entering the mobile homes. (McCord Decl. at 3-4.)

 Because discovery has yet to commence and the Magistrate Judge previously denied 4

(Doc. # 51) opening limited discovery for this particular issue, the plaintiffs do not know the

identity of the officers who conducted the initial entry and securement of their home (Doc. # 52).

3

estranged husband of Martinez. (Martinez Decl. ¶ 15.)

Martinez and her minor children, ages five and seven, were watching television at

7:00 p.m. when the Daleville Police Tactical Team, also known as the Special Weapons and

Tactics (“SWAT”) Team, made an explosive entry into her home, located at 43 Pitts Drive, 3

and secured the premises for the drug task force to conduct the search. (Martinez Decl. ¶ 1;

McCord Decl. at 3.) During the initial entry to the home, a “flash-bomb” or other explosive

device was thrown through the window, exploding in front of one of the children watching

television. (Martinez Decl. ¶ 2.) Officers with masks, assault garb, and drawn weapons

entered the mobile home by breaking down a door. (Id. ¶ 4.) Weapons were pointed at 4

Martinez and her minor children, and they were required to lie on the floor face-down and

were not permitted to move. (Id. ¶ 5.) Other officers, also unidentified, made a coordinated

and simultaneous entry into the other mobile home located nearby at 81 Pitts Drive.

(McCord Decl. at 4.) 

At the time of entry into Martinez’s home, McCord was on duty watching the

perimeter of the entry at 81 Pitts Drive. (Id.) At that same time, Williamson was waiting in

a vehicle down the road. (Williamson Aff. ¶ 9.) After the premises of the mobile homes

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4

were secured, Williamson entered the plaintiffs’ residence and searched the kitchen,

bedroom, and the laundry room for items pursuant to the warrant, (Williamson Aff. ¶¶ 10-

12), and McCord entered the residence at 81 Pitts Drive where he spent over two hours

searching for evidence and interviewing the individuals found inside. (McCord Decl. at 4-5.)

Methamphetamine, currency, drug paraphernalia, and a handgun were seized at 81 Pitts

Drive, and Juvenal Martinez was arrested. 

McCord then walked the short distance to 43 Pitts Drive. (McCord Decl. at 5.)

Although McCord describes his entry of the plaintiffs’ home as merely a “quick walk

through” that lasted five to ten minutes, (McCord Decl. at 5), Martinez alleges that McCord

and other officers involved in the search “look[ed] in every drawer in every room of her

house,” “tore the front off [her] VCR,” and “caused damage to [her] car during the search.”

(Martinez Decl. ¶ 7.) Martinez also claims McCord told her that she was going to jail. (Id.

¶ 18.) The actions of McCord and other officers “extremely distressed” Martinez and caused

her to worry “that there was something in the explosive device that caused [her children] to

sleep.” (Id.)

On July 18, 2006, the plaintiffs filed this action against multiple defendants, some of

whom have already been dismissed as parties. In their most recent complaint, the plaintiffs

allege eleven counts against McCord and Williamson for unlawful entry, unlawful search and

seizure, excessive force under 42 U.S.C. § 1983, conspiracy to violate her civil rights under

42 U.S.C. § 1985, failure to prevent the violation of her civil rights under 42 U.S.C. § 1986,

Case 1:06-cv-00636-WKW-WC Document 99 Filed 05/08/08 Page 4 of 22
 The plaintiffs now concede that their claims under 42 U.S.C. § 1985 and § 1986 against

5

McCord are due to be dismissed. (Doc. # 70, at 20.)

5

and six state tort claims. (Third Am. Compl. ¶¶ 43-120.) On July 16, 2007, McCord filed 5

a motion to dismiss or in the alternative for summary judgment (Doc. # 62). On October 19,

2007, Williamson filed a motion to dismiss or in the alternative for summary judgment

(Doc. # 83). The plaintiffs have responded (Docs. # 70 & # 86) to both motions and both

defendants have replied (Docs. # 76 & # 88).

II. JURISDICTION AND VENUE

Because the action includes claims under 42 U.S.C. § 1983 (deprivation of rights),

42 U.S.C. § 1985 (conspiracy to interfere with rights), and 42 U.S.C. § 1986 (failure to

prevent conspiracy to interfere with rights), the court exercises jurisdiction pursuant to

28 U.S.C. § 1331 (federal question). As to the claims arising under state law, the court

exercises supplemental jurisdiction pursuant to 28 U.S.C. § 1367. The parties do not contest

personal jurisdiction or venue, and the court finds there are allegations sufficient to support

both.

III. STANDARD OF REVIEW

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

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

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

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

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

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6

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

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

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

absence of a genuine issue of material fact.” Id. at 323. The movant can meet this burden

by presenting evidence showing there is no dispute of material fact, or by showing the nonmoving party has failed to present evidence in support of some element of its case on which

it bears the ultimate burden of proof. Id. at 322-23.

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

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

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

genuine issue for trial.’” Id. at 324. To avoid summary judgment, the nonmoving party

“must do more than simply show that there is some metaphysical doubt as to the material

facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the

other hand, a court ruling on a motion for summary judgment must believe the evidence of

the non-movant and must draw all justifiable inferences from the evidence in the non-moving

party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). After the

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

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

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

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 The plaintiffs do not make a Rule 56(f) argument or provide a necessary affidavit as to 6

McCord’s summary judgment motion. (See Pls.’ Resp. Br. to McCord.)

7

IV. DISCUSSION

A. Rule 56(f)

As an initial matter, the plaintiffs argue that Williamson’s motion for summary

judgment should be denied pursuant to Rule 56(f) because they have not had an opportunity

to make full discovery. (Pls.’ Resp. Br. to Williamson 9-12.) If the non-movant can show 6

by affidavit that she cannot present essential facts, the court may deny the motion or order

a continuance. Fed. R. Civ. P. 56(f). While generally a party adverse to summary judgment

must set forth specific facts demonstrating a genuine issue for trial, this general rule is

limited by “Rule 56(f)’s provision that summary judgment be refused where the nonmoving

party has not had the opportunity to discover information that is essential to his opposition.”

Anderson, 477 U.S. at 250 n.5. The Eleventh Circuit “has often noted that summary

judgment should not be granted until the party opposing the motion has had an adequate

opportunity for discovery.” Snook v. Trust Co. of Ga. Bank of Savannah, N.A., 859 F.2d 865,

870 (11th Cir. 1988). However, the court must balance the “demonstrated need for discovery

against the burden such discovery will place on the opposing party.” Harbert Int’l, Inc. v.

James, 157 F.3d 1271, 1280 (11th Cir. 1998).

In this case, Williamson advances a qualified immunity defense which changes the

normal Rule 56(f) analysis:

In qualified immunity cases, the Rule 56(f) balancing is done with a thumb on

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the side of the scale weighing against discovery. Qualified immunity provides

an entitlement not to stand trial or face the other burdens of litigation,

conditioned on the resolution of the essentially legal [immunity] question. For

that reason, once a defendant raises the defense, “the trial court must exercise

its discretion in a way that protects the substance of the qualified immunity

defense. It must exercise its discretion so that officials are not subjected to

unnecessary and burdensome discovery or trial proceedings.

Id. (internal citations and quotation marks omitted).

Among the explanations provided by plaintiffs’ counsel as to why further opportunity

for discovery is warranted before final judgment is entered is the need to ascertain

Williamson’s “relationship to lower ranking officers at the scene to discover whether they

acted under the scope of his authority.” (Clements Decl. ¶ 5.) Furthermore, statements made

during the briefing may shed light on Williamson’s role in the search. (Id. ¶ 6.) Other

reasons proffered by the plaintiffs for denying summary judgment under Rule 56(f) are that

Williamson did not specify exactly how he searched the home, i.e., whether he “ransacked”

it, and that discovery is needed to determine the policies regarding searches of homes. 

In their complaint, the plaintiffs contend that Williamson, among others, converted

or intermeddled with numerous items of furnishing, decor, and memorabilia, in addition to

breaking a window and a door and causing other damage by use of an explosive device.

(Third Am. Compl. ¶ 112.) Although Williamson states that he did not damage any property,

(Williamson Aff. ¶¶ 12-13), the plaintiff has alleged property damage arising from the search

of her home. (Martinez Decl. ¶ 7.) It is undisputed that Williamson participated in the

search of her home. Assuming the plaintiffs’ version of the facts to be true, further discovery

Case 1:06-cv-00636-WKW-WC Document 99 Filed 05/08/08 Page 8 of 22
 As explained below, some of the claims are defective even at this early stage and are 7

due to be dismissed. 

9

as to this issue is required to properly determine the validity of many of the claims alleged

against Williamson, even in the face of qualified immunity. Therefore, upon consideration 7

of the plaintiffs’ arguments, the court finds that Rule 56(f) prevents the court from reaching

a final judgment on the motion for summary judgment at this time with respect to

Williamson, with the exception of certain claims specified below that fail as a matter of law.

B. Qualified Immunity for Federal Claims – Counts One Through Three

The first three counts of the plaintiffs’ complaint allege violations of various

constitutional rights under 42 U.S.C. § 1983: unlawful entry in violation of the Fourth and

Fourteenth Amendments, unlawful search and seizure in violation of the Fourth and

Fourteenth Amendments, and excessive force in violation of the Fourth Amendment. (Third

Am. Compl. ¶¶ 43-76.) Both defendants claim qualified immunity against these counts.

Qualified immunity may protect government officials performing discretionary

functions from being sued in their individual capacities. Williams v. Ala. State Univ.,

102 F.3d 1179, 1182 (11th Cir. 1997). It shields government actors from liability to the

extent that “their conduct does not violate clearly established . . . constitutional rights of

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 817-18

(1982). “The purpose of this immunity is to allow government officials to carry out their

discretionary duties without the fear of personal liability or harassing litigation, protecting

from suit all but the plainly incompetent or one who is knowingly violating the federal law.”

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10

Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation marks and citations

omitted).

The qualified immunity defense involves a two-step inquiry. The first inquiry is

“whether the defendant government official was performing a discretionary function” when

the allegedly wrongful acts occurred. Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir.

1997). The government actor is acting within his discretion if “his actions were undertaken

pursuant to the performance of his duties and within the scope of his authority.” Rich v.

Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988) (quoting Barker v. Norman, 651 F.2d 1107,

1121 (5th Cir. 1981)).

“Once the defendant establishes that he was acting within his discretionary authority,

the burden shifts to the plaintiff to show that qualified immunity is not appropriate.” Lee,

284 F.3d at 1194. This is the second inquiry and is itself a two-part test. First, the court must

determine whether the plaintiff’s allegations, if taken as true, would establish a violation of

a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). If so, the “next, sequential

step is to ask whether the right was clearly established.” Id. For a right to be clearly

established, “[t]he contours of the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S.

635, 640 (1987). 

When, as here, qualified immunity is asserted in the context of a motion for

summary judgment, we look at the evidence in the record, interpreted in the

light most favorable to the plaintiff. Based on this evidence, we must

determine if there is a reasonable dispute of material fact over whether the

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defendant violated the plaintiff's clearly established constitutional rights. 

O’Rourke v. Hayes, 378 F.3d 1201, 1206 (11th Cir. 2004).

Here, there is no dispute that both McCord and Williamson were acting within their

discretionary authority. Therefore the court must now determine whether there is a genuine

issue of material fact as to whether a constitutional right was violated and, if so, whether that

right has been clearly established. 

1. McCord

Most of the alleged constitutional deprivations of which Martinez complains were

personally committed by the members of the SWAT team who conducted the explosive,

initial entry as part of a broader multi-agency operation led in part by McCord. As a result,

McCord is a supervisory official as to these claims. Supervisory officials may be found

liable, but “[t]he standard by which a supervisor is held liable in [his] individual capacity for

the actions of a subordinate is extremely rigorous.” Braddy v. Fla. Dep’t of Labor &

Employment Sec., 133 F.3d 797, 802 (11th Cir. 1998). Because “supervisory officials are not

liable under § 1983 for the unconstitutional acts of their subordinates ‘on the basis of

respondeat superior or vicarious liability,’” Hartley v. Parnell, 193 F.3d 1263, 1269 (11th

Cir. 1999) (quoting Belcher v. City of Foley, 30 F.3d 1390, 1396 (11th Cir. 1994)), plaintiffs

must seek a more direct manner of holding supervisors liable. Two types of supervisory

liability exist in the Eleventh Circuit. The first type is “‘when the supervisor personally

participates in the alleged constitutional violation.’” Id. (quoting Brown v. Crawford, 906

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12

F.2d 667, 671 (11th Cir. 1990)). Because McCord did not personally participate in the

explosive entry of the plaintiffs’ home, the first type of supervisory liability is inapplicable

to the excessive force claim. However, he did personally participate in the later entry and

search of the plaintiffs’ home, allegedly caused damage to the plaintiffs’ home and

possessions, and allegedly told Martinez she was going to jail. Therefore, he did personally

participate as to Count One (unlawful entry) and Count Two (unlawful search and seizure),

potentially giving rise to supervisory liability.

The second type of supervisory liability exists “when there is a causal connection

between actions of the supervising official and the alleged constitutional deprivation.”

Brown, 906 F.2d at 671. This “causal connection” may itself be established by three different

methods. The first way is “when a history of widespread abuse puts the responsible

supervisor on notice of the need to correct the alleged deprivation, and he fails to do so.” Id.

These deprivations “must be obvious, flagrant, rampant and of continued duration, rather

than isolated occurrences.” Id. The second way is “where the supervisor’s improper ‘custom

or policy . . . result[s] in deliberate indifference to constitutional rights.’” Hartley, 193 F.3d

at 1269 (quoting Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991)). The third way

is established by “facts which support an inference that the supervisor directed the

subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed

to stop them from doing so.” Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003) (citing

Post v. City of Fort Lauderdale, 7 F.3d 1552, 1561 (11th Cir. 1993)).

Case 1:06-cv-00636-WKW-WC Document 99 Filed 05/08/08 Page 12 of 22
 For instance, federal law requires an officer to knock on the door and announce his 8

presence before using force to enter a home. See 18 U.S.C. § 3109. Significantly, for the

purposes of triggering the application of the federal “no-knock” statute, the plaintiffs have

alleged the involvement of the United States Drug Enforcement Agency in the search operation. 

(Third Am. Compl. ¶ 11.) Furthermore,“it is clear that the Fourth Amendment requires an

inquiry into the reasonableness of a no-knock search even if there is no federal involvement

triggering section 3109.” United States v. Scroggins, 361 F.3d 1075, 1080 (8th Cir. 2004); see

also United States v. Segura-Baltazar, 448 F.3d 1281, 1290 n.4 (11th Cir. 2006) (citing

Scroggins for the proposition that a section 3109 analysis is identical to a Fourth Amendment

analysis). In addition, Alabama law permits an officer executing a search warrant to break open

any door or window of a house but only “if after notice of his authority and purpose he is refused

admittance.” Ala. Code § 15-5-9 (1975).

13

Martinez does not allege there was a history of widespread abuse consisting of

deprivations of a continued duration such that a causal connection could be made. Martinez

also does not allege McCord used improper customs or policies that resulted in deliberate

indifference to constitutional rights. However, Martinez does allege a causal connection in

that McCord knew that the SWAT team would act unlawfully and failed to stop them (Pls.’

Resp. Br. to McCord 17). This assertion is largely based on the plaintiffs’ belief that

“McCord knew that Plaintiffs were not armed and dangerous,” yet he procured the assistance

of the SWAT team thereby ensuring entry force would be excessive. (Id. at 18.) There is

evidence that McCord conducted the briefing prior to the raid of the mobile homes. (Whittle

Decl. ¶ 5.) If McCord directed his subordinates to act unlawfully during this briefing, or at 8

any other stage of the search operation, he could be subject to supervisory liability. 

The facts surrounding the briefing are exclusively within the knowledge and control

of the defendants. Therefore, the plaintiffs have made allegations which, if supported by

evidence obtained after discovery, could form the basis of valid claims under § 1983 and

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 The court is mindful of the broad scope of qualified immunity and frequently faces pre9

discovery motions to dismiss in § 1983 cases involving law enforcement actions. In exercise of

its discretion, the court finds the need for discovery of matters peculiarly within the knowledge of

the defendants outweighs the burden of discovery, particularly when subsequent motions for

summary judgment will be available to the defendants to test the issue of qualified immunity

post-discovery, and especially when a defendant, like Williamson, is not entitled to judgment as

to all claims in any event, and thus discovery is inevitable. As the Eleventh Circuit has

acknowledged in dicta, it is important to “purs[ue] discovery to a reasonable extent so as to

permit appropriate factual showings [because] anything less may result in grants of summary

judgment solely because of inadequate discovery.” Rich v. Dollar, 841 F.2d 1558, 1566 n.8

(11th Cir. 1988). With that in mind, however, the court is vested with “broad discretion to tailor

discovery narrowly and to dictate the sequence of discovery,” and expects to hear motions to

“limit the time, place, and manner of discovery, or even bar discovery altogether on certain

subjects,” Crawford-El v. Britton, 523 U.S. 574, 598-600, so as to “‘protect[ ] the substance of

the qualified immunity defense.’” Harbert, 157 F.3d at 1280 (quoting Crawford-El, 523 U.S. at

597).

14

could establish personal or supervisory liability for McCord. The court does not expect

parties to allege facts of which only the opposing party has knowledge and control.9

Accordingly, the court finds that McCord is not entitled to qualified immunity at the prediscovery stage of the proceedings, and his motion for summary judgment as to Counts One

(unlawful entry), Two (unlawful search and seizure), and Three (excessive force) is due to

be denied.

2. Williamson

Although Williamson was not present at the initial entry of the residence at 43 Pitts

Drive, he did personally enter the residence and conduct a search. The plaintiffs allege that

he “ransacked” the home and caused damage. As explained above, Rule 56(f) prevents the

court from reaching a final judgment on the motion for summary judgment at this time with

respect to two of the § 1983 claims against Williamson. Thus, at this stage of the litigation,

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15

his summary judgment motion as to Count One (unlawful entry) and Count Two (unlawful

search and seizure) is due to be denied because discovery is needed to determine essential

facts. 

The excessive force claim in Count Three, however, requires no fact finding because

it fails as a matter of law as to Williamson. The excessive force claim is based on the actions

of the SWAT team as they initially entered the residence and forced the plaintiffs onto the

floor at gunpoint. (Third Am. Compl. ¶¶ 64-76.) There are no allegations that Williamson

had any supervisory authority over the SWAT team or that he played any role in conducting

the briefing. It is undisputed that Williamson was not among those who initially entered the

residence. There is no allegation that Williamson personally touched the plaintiffs at all.

Therefore, the excessive force claim fails as to Williamson and his summary judgment

motion is due to be granted as to Count Three (excessive force).

C. Counts Four and Five - Civil Rights Conspiracy

Although the plaintiffs originally brought Counts Four and Five, alleging violations

of 42 U.S.C. § 1985 and § 1986, against both defendants, they now concede these two claims

as to McCord. (Doc. # 70, at 20.) As for Williamson, the plaintiffs allege that he conspired

with other officers to deprive Martinez of her civil rights in violation of 42 U.S.C. § 1985

and that he had knowledge of the conspiracy, had the power to prevent it, and failed to do so

in violation of 42 U.S.C. § 1986. (Third Am. Compl. ¶¶ 77-87.) No facts are alleged

regarding any communication between Williamson and any other defendant or the SWAT

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team. No facts are alleged that would support either a conspiracy or knowledge of a

conspiracy by Williamson to deprive the plaintiffs of any constitutional right. 

“The elements of a cause of action under section 1985(3) are ‘(1) a conspiracy; (2) for

the purpose of depriving, either directly or indirectly, any person or class of persons of the

equal protection of the laws, or of equal privileges and immunities under the laws; and (3)

an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person

or property or deprived of any right or privilege of a citizen of the United States.’” Lucero

v. Operation Rescue of Birmingham, 954 F.2d 624, 627-28 (11th Cir. 1992) (quoting United

Bhd. of Carpenters & Joiners of Am., Local 610 v. Scott, 463 U.S. 825, 828-29 (1983)).

“More specifically, the second element requires a showing of ‘some racial, or perhaps

otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.’”

Id. (quoting Scott, 463 U.S. at 829). The conspiracy, in other words, must aim at a

deprivation of the equal enjoyment of rights secured by the law to all. The plaintiffs’

complaint is devoid of any allegations of race-based, or other protected class-based, denial

of equal protection of the laws. The plaintiffs’ complaint does not allege that any racial or

other invidiously discriminatory animus motivated Williamson’s allegedly unconstitutional

actions. Hence, the §1985 claim of Count Four fails.

Count Five is a claim for failure to prevent a violation of civil rights pursuant to

42 U.S.C. § 1986. Section 1986 provides a cause of action against anyone who has

knowledge of a § 1985 conspiracy and fails to prevent a violation of civil rights pursuant to

Case 1:06-cv-00636-WKW-WC Document 99 Filed 05/08/08 Page 16 of 22
 The only exceptions to state immunity for sheriffs are for actions brought: 10

(1) to compel him to perform his legal duties; (2) to compel him to perform

ministerial acts; (3) to enjoin him from enforcing unconstitutional laws; (4) to

enjoin him from acting in bad faith, fraudulently, beyond his authority, or under

mistaken interpretation of the law, or (5) to seek construction of a statute under

the Declaratory Judgment Act.

Parker, 519 So. 2d at 443. 

17

the conspiracy. Park v. City of Atlanta, 120 F.3d 1157, 1159-60 (11th Cir. 1997). Because

the plaintiffs failed to allege or establish the essential elements of a § 1985 conspiracy, their

derivative § 1986 claim necessarily fails. Id. at 1160 (agreeing “with the district court that

§ 1986 requires a violation of § 1985”). Therefore, both defendants’ motions for summary

judgment as to Counts Four and Five are due to be granted.

D. State Tort Claims – Counts Six Through Eleven

The plaintiffs bring state tort claims of trespass, assault and battery, invasion of

privacy, intentional infliction of emotional distress, conversion, and false arrest or false

imprisonment against the defendants. (Third Am. Compl. ¶¶ 88-120.) Both defendants plead

immunity defenses to all tort claims.

1. McCord and State Immunity

The Alabama Constitution provides “[t]hat the State of Alabama shall never be made

a defendant in any court of law or equity.” Ala. Const. art. I, § 14. The Alabama Supreme

Court has held that a sheriff is an officer of the state, not the county, and as such is immune

from suits stemming from the execution of his duties. Parker v. Amerson, 519 So. 2d 442, 10

Case 1:06-cv-00636-WKW-WC Document 99 Filed 05/08/08 Page 17 of 22
 Alabama’s State-agent immunity statute provides in part:

11

Every peace officer, except constables, who is employed or appointed pursuant to the

Constitution or statutes of this state, whether appointed or employed as such peace

officer by the state or a county or municipality thereof, or by an agency or institution,

corporate or otherwise, created pursuant to the Constitution or laws of this state and

authorized by the Constitution or laws to appoint or employ police officers or other

peace officers, and whose duties prescribed by law, or by the lawful terms of their

18

445 (Ala. 1987); see also McMillian v. Johnson, 101 F.3d 1363, 1365 (11th Cir. 1996)

(finding that “under Alabama law, a claim against an Alabama sheriff in his individual

capacity is barred by the doctrine of sovereign immunity”). As an “alter ego” of the sheriff,

the acts of a sheriff’s deputy are considered “the acts of the sheriff.” Mosely v. Kennedy,

17 So. 2d 536, 537 (Ala. 1944). As a result,sheriff’s deputies enjoy the same state immunity

that is granted to sheriffs. See Hereford v. Jefferson County, 586 So. 2d 209, 210 (Ala.

1991); see also Alexander v. Hatfield, 652 So. 2d 1142, 1144 (Ala. 1994) (“We have also

held that deputy sheriffs are immune from suit to the same extent as sheriffs.”).

Here, there is no dispute that McCord’s acts during the course of a drug raid were

performed in the course and scope of his employment as a deputy sheriff. (See Doc. # 70,

at 12.) Furthermore, none of five exceptions to state immunity for sheriffs and their deputies

are applicable. Therefore, as an officer of the state, McCord is entitled to state immunity,

and his motion for summary judgment is due to be granted as to the state tort claims

contained in Counts Six through Eleven.

2. Williamson and State-Agent Immunity

Alabama extends immunity to law enforcement officers from tort claims when the 11

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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, or who are lawfully charged by warrant, indictment, or other lawful

process, with violations of, 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) (1975).

19

conduct underlying the claims is based on the agent “exercising judgment in the enforcement

of the criminal laws of the State, including, but not limited to, law-enforcement officers’

arresting or attempting to arrest persons, or serving as peace officers under circumstances

entitling such officers to immunity pursuant to § 6-5-338(a).” Hollis v. City of Brighton, 950

So. 2d 300, 309 (Ala. 2006) (emphasis omitted). A defendant is immune if he “(1) is a

‘peace officer,’ (2) is performing ‘law enforcement duties,’ and (3) is exercising judgment

or discretion.” Howard v. City of Atmore, 887 So. 2d 201, 204 (Ala. 2003). The officer

bears the burden of demonstrating the plaintiffs’ claims arise from a function that would

entitle him to immunity. Ex parte Randall, 971 So. 2d 652, 662 (Ala. 2007). Once the

officer has shown this, the burden shifts to the plaintiff, who may rebut the immunity if he

shows the police officer “acted willfully, maliciously, fraudulently, in bad faith, or beyond

his or her authority[, or under a mistaken interpretation of the law].” Id. at 662-63.

The text of the statute describes a peace officer as, among other things, one “who is

empowered by the laws of this state to execute warrants.” Ala. Code § 6-5-338(a). As a

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20

lieutenant and investigator for a municipal police department during the course of executing

a search warrant, Williamson qualifies as a peace officer. Furthermore, the execution of a

search warrant and search of a residence are typical law enforcement duties that require

discretion. Williamson meets his burden because he was a peace officer searching for

evidence under a search warrant, which is an exercise of judgment in the enforcement of the

criminal laws of the State. Moore v. Adams, 754 So. 2d 630, 632 (Ala. 1999) (finding “the

execution of a valid search warrant [is] a discretionary function”). 

The plaintiffs have the burden to rebut Williamson’s immunity by showing he acted

willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a

mistaken interpretation of the law – many concepts which would be peculiarly within the

knowledge of the officer. As explained above, due to the lack of discovery, Rule 56(f)

prevents the court from reaching a judgment on the motion for summary judgment at this

time with respect to Williamson for three of the tort claims. This is because discovery could

lead to evidence supporting the plaintiffs’ allegations that Williamson did act willfully,

maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken

interpretation of the law. Therefore, Williamson’s motion for summary judgment is due to

be denied with respect to Count Six (trespass), Count Eight (invasion of privacy), Count Ten

(conversion), and Count Eleven (false arrest/false imprisonment).

Despite Rule 56(f), there are two tort claims against Williamson that fail as a matter

of law, and further discovery on these claims would be pointless. Count Seven alleges the

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tort of assault and battery. (Third Am. Compl. ¶¶ 95-98.) The complaint states that “the

defendants touched Ms. Martinez in rudeness, in anger, or in a hostile manner, by touching

her person and pointing a firearm at her head.” (Id. ¶ 95.) Despite lumping all defendants

into this claim, earlier in the complaint the plaintiffs admit that Williamson was not part of

the initial, violent entry of their home during which time the alleged assault occurred and

firearms were drawn. (Id. ¶¶ 20-21.) The complaint states that “[f]ollowing the assault on

Plaintiffs’ (sic) and their home, the Ninja-clad officers left, to be replaced by . . . Williamson

and other, presently unknown, officers.” (Id.) It is clear the assault and battery claim is

directed at the officers who initially entered the plaintiffs’ home and not the officers who

subsequently searched the home. Because the plaintiffs acknowledge Williamson was not

one of the initial officers, and they do not allege that he ever touched the plaintiffs, the

assault and battery claim against him fails.

Count Nine asserts a claim for intentional infliction of emotional distress (i.e.,

outrage) against Williamson. However, in Alabama, the tort of outrage is only recognized

in three areas: “(1) wrongful conduct within the context of family burials; (2) an insurance

agent’s coercing an insured into settling an insurance claim; and (3) egregious sexual

harassment.” Stabler v. City of Mobile, 844 So. 2d 555, 560 (Ala. 2002). None of these

situations is remotely applicable to the situation at hand, and thus the plaintiffs have not

alleged a viable claim of outrage. Therefore, Williamson’s summary judgment motion is due

to be granted as to both Count Seven (assault and battery) and Count Nine (outrage).

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V. CONCLUSION

For the reasons set forth above, it is ORDERED that:

1. Defendant McCord’s Motion to Dismiss (Doc. # 62) is DENIED;

2. Defendant McCord’s Motion for Summary Judgment (Doc. # 62) is

GRANTED in part and DENIED in part as follows:

a. DENIED as to Counts One, Two, and Three;

b. GRANTED as to Counts Four through Eleven.

3. Defendant Williamson’s Motion to Dismiss (Doc. # 83) is DENIED; 

4. Defendant Williamson’s Motion for Summary Judgment (Doc. # 83) is

GRANTED in part and DENIED in part as follows:

a. DENIED as to Counts One, Two, Six, Eight, Ten, and Eleven;

b. GRANTED as to Counts Three, Four, Five, Seven, and Nine. 

Therefore, Counts One, Two, and Three remain against McCord, and Counts One,

Two, Six, Eight, Ten, and Eleven remain against Williamson, and the parties shall proceed

with their Rule 26 obligations.

DONE this 8th day of May, 2008.

 /s/ W. Keith Watkins 

UNITED STATES DISTRICT JUDGE

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