IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

RICHARD MARSHALL, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) CIVIL ACTION NO. 2:06-cv-701-ID-CSC 

 ) 

CHRIS WEST, in his individual capacity, ) 

LASHUN HUTSON, in his individual ) 

capacity, ) 

 ) 

 Defendants. ) 

BRIEF IN SUPPORT OF DEFENDANTS CHRIS WEST AND LASHUN HUTSON’S

MOTION TO DISMISS

COME NOW Lowndes County, Alabama, Sheriff’s Deputies Chris West and Lashun 

Hutson, the Defendants in the above-referenced matter, and submit this brief in support of their 

Motion to Dismiss filed simultaneously herewith. 

INTRODUCTION 

The Plaintiff Richard Marshall filed his Complaint on August 8, 2006, against 

Defendants Deputies Chris West and Lashun Hutson alleging violations of his First, Fourth, and 

Fourteenth Amendment rights to the Constitution of the United States. (See Plaintiff’s 

Complaint, ¶¶ 1, 4, 5, 44, 48, and p. 8 (a)). In Count I of the Plaintiff’s Complaint, he alleges 

that the Defendants subjected him to an unreasonable search of his vehicle, that the Defendants 

subjected him to excessive force, that he was falsely arrested, and that the Defendants instituted a 

criminal proceeding against him without probable cause. (Id. at ¶¶ 45, 49, 50, 52, 53, and 54.) 

The Plaintiff bases his excessive force claims on the Deputies hitting his vehicle as he attempted 

to elude them, as well as, Deputy West’s “warning shot.” (Id. at ¶¶ 49 and 50.) The Complaint 

also includes two counts raising state law claims, (1) Assault and Battery and (2) Conversion. 

(Id. ¶¶ 57-64.) The Plaintiff seeks a “declaratory judgment that the policies and practices 

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complained of herein are unlawful and violative of the Fourth and Fourteenth Amendments to 

the United States Constitution, as addressed by and through 42 USCA § 1983.” (Id. p. 8 (a.)). 

The Plaintiff also seeks compensatory and punitive damages, costs, including attorneys’ fees, 

and equitable relief. (Id. p. 8 (b-e.)) 

ARGUMENT 

I. DEPUTIES CHRIS WEST AND LASHUN HUTSON ARE ENTITLED TO HAVE 

THE PLAINTIFF’S § 1983 CLAIMS AGAINST THEM DISMISSED. 

The Plaintiff has failed to state a claim against Deputies West and Hutson in their 

individual capacities for two reasons. First, the Plaintiff’s Complaint fails to meet the Eleventh 

Circuit’s heightened pleading requirement for § 1983 cases involving qualified immunity. Second, 

even if the Plaintiff’s Complaint could be construed as meeting the heightened pleading 

requirement, Deputies West and Hutson are entitled to qualified immunity because the Plaintiff has 

failed to allege a violation of his constitutional rights and has not alleged a violation of clearly 

established law. 

A. THE PLAINTIFF’S COMPLAINT FAILS TO MEET THE ELEVENTH 

CIRCUIT’S HEIGHTENED PLEADING REQUIREMENT. 

The Plaintiff’s individual capacity claims against Deputies West and Hutson are due to be 

dismissed as the Complaint, on its face, does not meet the Eleventh Circuit’s pleading standard for 

§ 1983 cases involving qualified immunity. A plaintiff’s pleading standard is “heightened” when 

claims are made against government officials in their individual capacities. See GJR Inv., Inc. v. 

County of Escambia, 132 F.3d 1359, 1367 (11th Cir. 1998) (“Accordingly, when reviewing a 

district court’s disposition of a motion to dismiss a § 1983 claim on qualified immunity grounds, 

we are guided both by the regular 12(b)(6) standard and by the heightened pleading 

requirement.”). The Plaintiff’s Complaint contains little more than conclusory allegations that 

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cannot survive a motion to dismiss. See Aquatherm Indus., Inc. v. Fla. Power & Light Co., 145 

F.3d 1258, 1261 (11th Cir. 1998) (affirming dismissal and approving the district court’s 

reasoning that “vague, conclusory allegations are insufficient to state a claim upon which relief 

can be granted”). 

The Eleventh Circuit pointed out in GJR Inv., Inc. v. County of Escambia, that: 

[W]hile Fed. R. Civ. P. 8 allows a plaintiff considerable leeway in framing its 

complaint, this circuit, along with others, has tightened the application of Rule 8 

with respect to § 1983 cases in an effort to weed out nonmeritorious claims, 

requiring that a § 1983 plaintiff allege with some specificity the facts which make 

out its claim. See Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (11th 

Cir. 1992) (citing Arnold v. Bd. of Educ., 880 F.2d 305, 309 (11th Cir. 1989)). 

Some factual detail is necessary to the adjudication of § 1983 claims. This is 

particularly true in cases involving qualified immunity, where we must determine 

whether a defendant’s actions violated a clearly established right. 

132 F.3d at 1367. The Plaintiff carries the burden of showing that the federal rights allegedly 

violated were clearly established through specific factual pleadings. See Mitchell v. Forsyth, 472 

U.S. 511, 528 (1985). 

The Eleventh Circuit has made it clear that it continues to apply a higher pleading 

standard for § 1983 cases involving qualified immunity. Maldonado v. Snead, 168 Fed. Appx. 

373, *6 (11th Cir. Feb. 25, 2006) (applying heightened pleading standard to action where 

defendant asserted qualified immunity as a defense); Washington v. Bauer, 149 Fed. Appx. 867, 

871 (11th Cir. Sep. 2, 2005); Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir. 2003) (“In 

examining the factual allegations of the complaint, we must keep in mind the heightened 

pleading requirements for civil rights cases, especially those involving the defense of qualified 

immunity.”); Cottone v. Jenne, 326 F.3d 1352, 1362, n.7 (11th Cir. 2003) (same); Gonzalez v. 

Reno, 325 F.3d 1228, 1235 (11th Cir. 2003) (same); Laurie v. Ala. Ct. of Crim. App., 256 F.3d 

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1266, 1275-76 (11th Cir. 2003); Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1250 (11th Cir. 

2003). In Gonzalez, the Eleventh Circuit explained: 

In examining the factual allegations in the complaint, we must keep in mind the 

heightened pleading requirements for civil rights cases, especially those involving 

the defense of qualified immunity. GJR Inv., Inc. v. County of Escambia, 132 

F.3d 1359, 1367 (11th Cir. 1998). The complaint must allege the relevant facts 

“with some specificity.” Id. “[M]ore than mere conclusory notice pleading is 

required. . . . [A] complaint will be dismissed as insufficient where the 

allegations it contains are vague and conclusory.” Fullman v. Graddick, 739 F.2d 

553, 556-57 (11th Cir. 1984). See also Veney v. Hogan, 70 F.3d 917, 922 (6th 

Cir. 1995) (holding that complaint must “include the specific, non-conclusory 

allegations of fact that will enable the district court to determine that those facts, 

if proved, will overcome the defense of qualified immunity”). Moreover, in 

reviewing a motion to dismiss, we need only accept “well-pleaded facts” and 

“reasonable inferences drawn from those facts.” Oladeinde v. City of 

Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992). “[U]nsupported conclusions 

of law or of mixed fact and law have long been recognized not to prevent a Rule 

12(b)(6) dismissal.” Marsh v. Butler County, 268 F.3d 1014, 1036 n.16 (11th Cir. 

2001). 

325 F.3d at 1235. Accordingly, it is abundantly evident that a higher pleading standard is alive 

and well in Eleventh Circuit qualified immunity jurisprudence. 

The Plaintiff has made numerous legal conclusions throughout his Complaint while only 

sporadically providing a few factual allegations in an attempt to support these conclusions. 

Specifically, the Plaintiff’s Complaint fails to sufficiently allege facts regarding the following: 

• whether the Defendants had reasonable suspicion supporting a Terry1

 stop; 

• whether the Plaintiff knew that Deputies West and Hutson were law 

enforcement officers; 

• whether Deputies West and Hutson had any badges or other law enforcement 

insignia on their persons or vehicle; 

• what parts of the Plaintiff’s vehicle were searched; 

 

1

 Terry v. Ohio, 392 U.S. 1, 22 (1968). 

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• whether the Plaintiff had committed the crimes of possession of a controlled 

substance and carrying a pistol without a license and whether Deputies West 

and Hutson were aware of that he had committed these crimes; 

• whether there was a firearm or other weapon in the car, in plain view or 

otherwise; 

• who arrested the Plaintiff and transported him to the Jail; 

• who actually charged the Plaintiff with possession of controlled substances and 

carrying a pistol without a license; 

• who was responsible for not returning the alleged $400.00 the Plaintiff was 

missing; and 

• whether the vehicles were traveling over 35 miles per hour at the time the PIT 

was executed. 

Without these key facts, it is impossible to determine whether the Defendants are entitled 

to qualified immunity. The doctrine of qualified immunity, designed to avoid the burden of 

litigation—not just monetary liability—does not allow the Plaintiff to avoid factual specificity in 

his Complaint just to get to discovery. Mitchell, 472 U.S. at 526. For purposes of the 

heightened pleading standard, the Plaintiff is required to plead facts within his knowledge and 

control that bear on the question of qualified immunity. See Williams v. Ala. State Univ., 865 F. 

Supp. 789, 799 (M.D. Ala. 1994) rev’d on other grounds 102 F.3d 1179 (11th Cir. 1997). 

Because the Plaintiff has failed to allege with a sufficient degree of particularity or specificity the 

acts or omissions of Deputies West and Hutson directly affecting him and because the Plaintiff 

has left out crucial facts within his possession that factor heavily into Defendants Deputies West 

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and Hutson’s entitlement to qualified immunity, the Plaintiff’s Complaint is due to be dismissed. 

Mitchell, 472 U.S. at 528. 

B. DEPUTIES CHRIS WEST AND LASHUN HUTSON ARE ENTITLED TO 

QUALIFIED IMMUNITY FROM THE PLAINTIFF’S § 1983 CLAIMS SET 

FORTH IN COUNT I OF THE PLAINTIFF’S COMPLAINT. 

Even if it could be construed as conforming to the Eleventh Circuit’s pleading requirements, 

the Plaintiff’s Complaint, on its face, demonstrates that Deputies West and Hutson are entitled to 

qualified immunity. Qualified immunity is a protection designed to allow government officials to 

avoid the expense and disruption of trial. Ansley v. Heinrich, 925 F.2d 1339, 1345 (11th Cir. 1991). 

Qualified immunity will be denied to an official only when “[t]he contours of the right [violated are] 

sufficiently clear that a reasonable official would understand that what he is doing violates that 

right.” U.S. v. Lanier, 520 U.S. 259, 270 (1997). In the light of pre-existing law, the unlawfulness 

must be apparent. Anderson v. Creighton, 483 U.S. 635, 640 (1987). The official is entitled to 

“fair warning” that his conduct would deprive a person of a constitutional right. Willingham v. 

Loughnan, 321 F.3d 1299, 1301 (11th Cir. 2003). 

It is clear from the face of the Complaint that Deputies West and Hutson were acting 

within their discretionary authority as Deputy Sheriffs during all times relevant to Plaintiff’s 

Complaint. (See Doc. 1, Plaintiff’s Complaint, ¶¶ 4-5.) All actions complained of in the 

Complaint are law enforcement activities, and law enforcement activities are “a legitimate jobrelated function” of Deputy Sheriffs. See, e.g. Holloman ex rel Holloman v. Harland, 370 F.3d 

1252, 1267 (11th Cir. 2004). Once a defendant has asserted the defense of qualified immunity, the 

threshold inquiry a court must undertake is whether the plaintiff’s allegations, if true, establish a 

constitutional violation. Saucier v. Katz, 533 U.S. 194, 201 (2001) (citing Siegert v. Gilley, 500 

U.S. 226, 232 (1991)). In other words, do the facts as alleged in the Plaintiff’s Complaint show 

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that Deputies West and Hutson’s conduct violated a constitutional right? The second inquiry is, 

if a constitutional violation is stated, was the right “clearly established” to the degree that 

Deputies West and Hutson had “fair warning” that their conduct violated the Plaintiff’s 

constitutional rights? 

“Unless the plaintiff’s allegations state a claim of violation of clearly established law, a 

defendant pleading qualified immunity is entitled to dismissal before the commencement of 

discovery.” See Mitchell, 472 U.S. at 526. The burden is on the Plaintiff to show that Deputies 

West and Hutson violated clearly established law. Id. As the Eleventh Circuit has held: 

Qualified immunity is a doctrine that focuses on the actual, on the specific, on the 

details of concrete cases. The most common error we encounter, as a reviewing 

court, occurs on this point: courts must not permit plaintiffs to discharge their 

burden by referring to general rules and to the violation of abstract ‘rights.’ 

Lassiter v. Ala. A&M Univ. Bd. of Trustees, 28 F.3d 1146, 1149-50 (11th Cir. 1994) (en banc). 

1. Deputies West and Hutson are entitled to qualified immunity on the 

Plaintiff’s Fourth Amendment claims. 

The doctrine of qualified immunity applies in full force to Fourth Amendment claims. 

Although the word “reasonable” appears in both the context of the qualified immunity test and in 

the substantive command of the Fourth Amendment, the word serves different purposes and has 

different meanings in each. In the Fourth Amendment, it defines the boundary of lawful police 

conduct; but in qualified immunity, it defines the somewhat broader zone of conduct an officer 

might have, based on pre-existing law, reasonably believed to be lawful. Where a law 

enforcement officer makes a reasonable although mistaken judgment regarding the lawfulness of 

a search under the Fourth Amendment, the Court held, he should “no more be held personally 

liable in damages than should officials making analogous determinations in other areas of law.” 

Anderson, 483 U.S. at 643-644. 

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Anderson makes it clear that, as in other types of cases, the question of qualified 

immunity in Fourth Amendment cases is distinct from whether there has been a constitutional 

violation at all. To decide the constitutional question, this Court must apply its best 

understanding of current law to determine whether, at bottom, the search or seizure was 

“unreasonable” within the meaning of the Fourth Amendment. See U.S. Const. amend. IV; Ohio 

v. Robinette, 519 U.S. 33, 39 (1996) (“We have long held that the ‘touchstone of the Fourth 

Amendment is reasonableness.’”) (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)). The 

Fourth Amendment reasonableness determination establishes the boundaries of lawful conduct; it 

represents an assessment of the official action that society is willing to tolerate as constitutionally 

acceptable. In contrast, the question for qualified immunity purposes is not Fourth Amendment 

reasonableness or the legality of the officer’s conduct vel non. 

The qualified immunity determination thus does not represent a judgment regarding the 

conduct society is prepared to recognize as constitutionally permissible. Rather, it represents a 

judgment that, although the conduct is unconstitutional, the officer should not be held personally 

liable because the law did not make the illegality of his conduct “obvious” or “apparent” at the 

time he acted. See Hunter, 502 U.S. at 227 (“qualified immunity shields agents . . . if ‘a 

reasonable officer could have believed [the seizure] to be lawful, in light of clearly established 

law and the information the arresting officers possessed.’”); Anderson, 483 U.S. at 641 (officers 

should be immune where they “reasonably but mistakenly conclude” that the search was lawful). 

As the Court explained in Harlow, an officer is entitled to immunity unless any reasonably 

competent official would “fairly be said to ‘know’ that the law forbade [the] conduct” in 

question. 457 U.S. at 818. 

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Finally, in cases where qualified immunity is at issue and where probable cause would 

otherwise be required, it is only necessary that the officers have “arguable probable cause.” As 

the Eleventh Circuit explained in Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997): 

[T]he question of whether qualified immunity should be held to exist turns upon 

whether there was “arguable” probable cause, as opposed to probable cause in 

fact. The standard for arguable probable cause is whether a reasonable officer in 

the same circumstances and possessing the same knowledge as the officer in 

question could have reasonably believed that probable cause existed in the light of 

well-established law. 

In light of the allegations of the Plaintiff’s Complaint, the Defendants are entitled to 

qualified immunity on the Plaintiff’s claims brought pursuant to 42 U.S.C. § 1983. 

a. The Plaintiff has not sufficiently alleged a violation of his 

Fourth Amendment rights. 

The Plaintiff alleges that the Defendants violated his Fourth Amendment rights in four 

ways: (1) the Defendants unreasonably searched his vehicle; (2) the Defendants subjected him to 

excessive force; (3) the Defendants falsely arrested him; and (4) the Defendants instituted a 

criminal proceeding against him without probable cause. (Id. at ¶¶ 45, 49, 50, 52, 53, and 54.) 

i. The Plaintiff has failed to sufficiently allege that 

Deputies West and Hutson subjected him to an 

unreasonable search of his vehicle. 

The Plaintiff in Count I alleges that the Defendants searched his vehicle without a 

warrant, probable cause, or exigent circumstances. (Doc. 1, Plaintiff’s Complaint, ¶¶ 45 and 52.) 

However, the allegations in the Complaint are insufficient to overcome the qualified immunity 

defense because the alleged search was lawful based on three reasons: (1) The search was a 

search incident to a lawful arrest; (2) The allegations of the Complaint show that probable cause 

existed despite the Plaintiff’s conclusory statement that no probable cause existed. See Marsh, 

268 F.3d at 1036 n.16 (11th Cir. 2001). “[U]nsupported conclusions of law or of mixed fact and 

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law have long been recognized not to prevent a Rule 12(b)(6) dismissal.”); and (3) The search 

was lawful based on the Deputies’ reasonable belief that the Plaintiff was “dangerous . . . and 

may gain immediate control of weapons.” Michigan v. Long, 463 U.S. 1032, 1049 (1983). 

(1) The search was a search incident to a lawful 

arrest. 

The Fourth Amendment’s guarantee against unreasonable searches and seizures 

encompasses the right to be free from arrest without probable cause. Probable 

cause is “defined in terms of facts and circumstances sufficient to warrant a 

prudent man in believing that the suspect had committed or was committing an 

offense.” 

The issue here, however, is not whether probable cause existed but instead 

whether there was arguable probable cause. Qualified immunity applies when 

there was arguable probable cause for an arrest even if actual probable cause did 

not exist. (“Arguable probable cause, not the higher standard of actual probable 

cause, governs the qualified immunity inquiry.”). 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. (“Arguable 

probable cause exists when an officer reasonably could have believed that 

probable cause existed, in light of the information the officer possessed.” 

Crosby v. Monroe County, 394 F.3d 1328, 1332-33 (11th Cir. 2004) (internal citations omitted). 

The Plaintiff’s Complaint establishes that the Plaintiff was lawfully arrested. The 

Plaintiff alleges that he refused to pull his vehicle over after twice being signaled by a law 

enforcement officer to do so. (Doc. 1, Plaintiff’s Complaint, ¶¶ 15 and 19.) 

Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a 

stop, or who otherwise flees or attempts to elude a pursuing police vehicle, when 

given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a 

misdemeanor. The signal given by the police officer may be by hand, voice, 

emergency light or siren. 

Ala. Code § 32-5A-193(a) (1975); see also Glass v. Abbo, 284 F. Supp. 2d 700, 706 (E.D. Mich. 

2003) (holding there was “probable cause to arrest [the plaintiff] for failing to stop upon a police 

signal”). 

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The United States Supreme Court has held that the Fourth Amendment does not forbid law 

enforcement officers from a executing a warrantless arrest for a misdemeanor. See Atwater v. City 

of Lago Vista, 532 U.S. 318, 323 (2001) (“The question is whether the Fourth Amendment forbids 

a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation 

punishable only by a fine. We hold that it does not.”) Therefore, as the Complaint on its face 

establishes that the Plaintiff was guilty of a misdemeanor, based on United States Supreme Court 

precedent, the arrest was lawful. The United States Supreme Court has also held: “[W]hen a 

policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a 

contemporaneous incident of that arrest, search the passenger compartment of that automobile.” 

New York v. Belton, 453 U.S. 454, 460 (1981) (footnote omitted). Accordingly, the search of the 

Plaintiff’s car was lawful as a search incident to arrest. 

(2) The search was based on, at least, arguable 

probable cause. 

“[A] warrantless search of a car is valid if based on probable cause.” Ornelas v. U.S., 

517 U.S. 690, (1996); Crosby, 394 F.3d at 1332-33 (internal citations omitted). (“Arguable 

probable cause, not the higher standard of actual probable cause, governs the qualified immunity 

inquiry.”); U.S. v. Snowden, 735 F.2d 1310, 1315 (11th Cir. 1984) (“[T]he justification for a 

warrantless search of an automobile ‘does not vanish once the car has been immobilized.’”). 

“One has a lesser expectation of privacy in a motor vehicle because its function is transportation 

and it seldom serves as one’s residence or as the repository of personal effects.” United States v. 

Wright, 588 F.2d 189 (5th Cir. 1979). 

 In the instant case, it is clear that the Defendants had, at least, arguable probable cause to 

search the Plaintiff’s vehicle. The Plaintiff had attempted to evade the Deputies – (Doc. 1, 

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Plaintiff’s Complaint, ¶¶ 17 and 20) - and had refused orders of the deputies to get on the ground 

– (Doc. 1, Plaintiff’s Complaint, ¶26), - so it was objectively reasonable for the deputies to 

believe that the automobile contained evidence of a crime. Colorado v. Bannister, 449 U.S. 1, 3 

(1980) (holding exception to warrant requirement exists when “when an automobile or other 

vehicle is stopped and the police have probable cause to believe it contains evidence of a 

crime.”); Ray v. U.S., 206 F.2d 796, 797-99 (10th Cir. 1953) (stating that where suspects fled in 

the automobile and then ultimately abandoned their automobile for pursuit on foot, the search of 

the vehicle was constitutional and “[t]he flight of the defendant was an additional factor which 

may be considered to determine if there was probable cause for the search and seizure.”) 

Because the search of the vehicle was, at least, based on arguable probable cause, the Defendants 

are entitled to qualified immunity. 

(3) The search was lawful based on the Deputies’ 

reasonable belief that the Plaintiff was 

“dangerous . . . and may gain immediate control 

of weapons.”2

“[T]he search of the passenger compartment of an automobile, limited to those areas in 

which a weapon may be placed or hidden, is permissible if the police officer possesses a 

reasonable belief based on ‘specific and articulable facts which, taken together with the rational 

inferences from those facts, reasonably warrant’” the officers in believing that the suspect is 

dangerous and the suspect may gain immediate control of weapons.” Michigan, 463 U.S. at 

1049. Considering the allegations that the Plaintiff had attempted to evade the deputies – (Doc. 

1, Plaintiff’s Complaint, ¶¶ 16, 17 and 20) - and had refused orders of the deputies to get on the 

ground – (Doc. 1, Plaintiff’s Complaint, ¶26) -, there was a reasonable inference that the 

 

2

 Michigan, 463 U.S. at 1049. 

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Plaintiff was dangerous and may gain immediate control of weapons. Therefore, the Defendants 

are entitled to qualified immunity. 

ii. Plaintiff has failed to sufficiently allege that Deputies 

West and Hutson subjected him to excessive force. 

 The Plaintiff alleges that the Defendants subjected him to excessive force in two ways: 

(1) “by smashing into the vehicle he was driving;” and (2) “by [Deputy West’s] aiming a weapon 

at him and discharging it [sic] weapon in his general direction and in his immediate vicinity.” 

(Doc. 1, Plaintiff’s Complaint, ¶¶ 49 and 50.) 

“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.” A court looks to the “totality of circumstances” to determine 

whether the manner of arrest was reasonable. “[I]n determining if force was 

reasonable, courts must examine (1) the need for the application of force, (2) the 

relationship between the need and amount of force used, and (3) the extent of the 

injury inflicted.” It is well settled that the right to make an arrest “necessarily 

carries with it the right to use some degree of physical coercion or threat thereof 

to effect it.” 

 

Draper v. Reynolds, 369 F.3d 1270, 1277-78 (11th Cir. 2004) (citations omitted) (footnote 

omitted). “Indeed, ‘the typical arrest involves some force and injury,’ and the use of force is an 

expected, necessary part of a law enforcement officer’s task of subduing and securing individuals 

suspected of committing crimes.” Lee v. Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002) 

(citations omitted); see also Ala. Code § 13A-3-27(a)(1) (1975): 

A peace officer is justified in using that degree of physical force which he 

reasonably believes to be necessary, upon a person in order . . . To make an arrest 

for a misdemeanor, violation or violation of a criminal ordinance, or to prevent 

the escape from custody of a person arrested for a misdemeanor . . . 

The actions of the officers must be reasonable in light of the facts and circumstances 

confronting the officer, without regard to his underlying intent or motivation. Graham v. 

Connor, 490 U.S. 386, 397 (1989). “The ‘reasonableness’ of a particular use of force must be 

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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. 

In making an excessive force inquiry, we are not to view the matter as judges 

from the comfort and safety of our chambers, fearful of nothing more threatening 

than the occasional paper cut as we read a cold record accounting of what turned 

out to be the facts, we must see the situation through the eyes of the officer on the 

scene who is hampered by incomplete information and forced to make a splitsecond decision between action and inaction in circumstances where inaction 

could prove fatal. 

Crosby v. Monroe Co., 394 F.3d 1328, 1334-35 (11th Cir. 2004), citing Graham, 490 U.S. at 

396-97.

The Fourth Amendment provides individuals the right to be free from the use of 

excessive force during an arrest. Durruthy v. Pastor, 351 F. 3d 1080, 1093 (11th Cir. 2003). The 

proper inquiry then becomes “‘whether the officer’s conduct [was] objectively reasonable in 

light of the facts confronting the officer.’” Id. (quoting Vinyard, 311 F.3d 1340, 1347 (11th Cir. 

2002)). The Eleventh Circuit “recognize[s] that the typical arrest involves some force and 

injury.” Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002). In evaluating the force 

used in such circumstances, courts look at “the severity of the crime at issue, whether the suspect 

pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively 

resisting arrest or attempting to evade arrest by flight.” Durruthy, 351 F.3d at 1094 (internal 

quotations and citation omitted). “Some use of force by a police officer when making a custodial 

arrest is necessary and altogether lawful, regardless of the severity of the alleged offense . . .” 

Durruthy, 351 F. 3d at 1080; see also Graham, 490 U.S. at 396 (1989) (The right to make an 

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arrest carries with it the right to use some degree of physical coercion or threat thereof to effect 

it.). 

(1) The vehicular force was reasonable. 

The Plaintiff alleges that use of a “PIT” maneuver is considered deadly force at speeds of 

35 miles per hour or more. (Doc. 1, Plaintiff’s Complaint, ¶ 23.) However, there is no allegation 

that either vehicle was traveling 35 miles per hour or over. (See, generally, Doc. 1, Plaintiff’s 

Complaint.) Therefore, the Complaint does not establish any use of deadly force. See McCartor 

v. City of Kent, 2005 WL 2600421, *8 (W.D. Wash. October 12, 2005) (holding that use of PIT 

was not deadly force).3 The Plaintiff admits that he was fleeing and that he did not comply with 

Deputies West and Hutson’s orders.4 (Doc. 1, Plaintiff’s Complaint, ¶¶ 16, 17, 20, 26 & 27.) 

Therefore, the Plaintiff was posing an immediate threat to the safety of the Deputies and others. 

See Durruthy, 351 F.3d at 1094. Further, it is clear that the Plaintiff was “attempting to evade 

arrest by flight.” See Id. Therefore, based on the facts as set forth in Durruthy, the Defendants 

were justified in using force to effectuate a lawful arrest. See McCartor, 2005 WL at *9 (stating 

that use of a PIT maneuver to prevent a pursuit in an area where no pedestrians were present was 

an objectively reasonable use of force). 

(2) The “warning shot” was reasonable. 

“The Fourth Amendment does not require officers to use the least intrusive or even less 

intrusive alternatives in search and seizure cases. The only test is whether what the police 

officers actually did was reasonable.” Menuel v. City of Atlanta, 25 F.3d 990, 995-97 (11th Cir. 

1994). The “warning shot” in this case was clearly reasonable in light of the circumstances 

 

3

 Further, the Court in McCartor referred to PIT use at speeds of less than 40 miles per hour. 2005 WL at *8 4

 There is no allegation that the Plaintiff did not know that the Deputies were, in fact, law enforcement officers or 

that there were no badges or other law enforcement insignia present on their persons or vehicle. (See, generally, 

Doc. 1, Plaintiff’s Complaint.) 

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16

alleged in the Plaintiff’s Complaint. After leading Deputies West and Hutson on a chase, the 

Plaintiff failed to get on ground after being ordered to do so. (Doc. 1, Plaintiff’s Complaint, ¶¶ 

16, 17, 20, 26 & 27.) The Plaintiff alleges that the shot was a warning shot and does not plead 

that Defendant West intended to harm him. (Doc. 1, Plaintiff’s Complaint, ¶ 26.) According to 

the relevant case law, a true warning shot in this situation is constitutional and was not deadly 

force as asserted by the Plaintiff. See Bell v. City of Milwaukee, 746 F.2d 1205, 1279 (7th Cir. 

1984), overruled on other grounds (affirming jury verdict in favor of defendant officers where 

warning shots were fired after officers’ orders were ignored and the shots were “truly warning 

shots.”); Otey v. Marshall, 121 F.3d 1150, 1156 (8th Cir. 1997) (noting that the officer’s “use of 

warning shots simply did not violate anyone’s constitutional rights”); O'Neal v. Ellison, 15 F.3d 

1088 (9th Cir. 1994) (affirming summary judgment for corrections officer who fired warning 

shot); Garcia v. U.S., 826 F.2d 806, 811 (9th Cir. 1987) (“A warning shot itself is not deadly 

force.”). 

Furthermore, the “warning shot” clearly falls into the category of “de minimus” force. 

[The] application of de minimis force, without more, will not support a claim for excessive force 

in violation of the Fourth Amendment.” Durruthy, 351 F. 3d at 1080. 

 In Durruthy, the Eleventh Circuit held that the officer’s force in effecting the arrest of 

Plaintiff, even if unnecessary, was not unlawful. The Court pointed out that it had found that 

force was lawful in cases where the force used was far more than that used by the defendant in 

that case. See Durruthy, at 351 F.3d. at 1094: 

(“In fact, the quantum of force used here was far less than our Court has sustained 

in other contexts. See Nolin v. Isbell, 207 F.3d 1253, 1255 (11th Cir.2000) 

(finding force to be de minimus where an officer grabbed the plaintiff “from 

behind by the shoulder and wrist, threw him against a van three or four feet away, 

kneed him in the back and pushed his head into the side of the van, searched his 

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17

groin area in an uncomfortable manner, and handcuffed him”); see also Jones v. 

City of Dothan, 121 F.3d 1456, 1460 (11th Cir.1997) (finding the force used to be 

minor where officers slammed the plaintiff against a wall, kicked his legs apart, 

required him to put his arms above his head, and pulled his wallet from his pants 

pocket).”) 

Id.; see also Post v. City of Ft. Lauderdale, 7 F.3d 1552, 1556 (11th Cir. 1993) (finding force 

lawful where officer “spun [plaintiff] around, placed him against a display case, applied a choke 

hold, and handcuffed him” and, after handcuffing him, pushed him against a wall). 

 Based on Eleventh Circuit precedent, in the present case, the absence of any physical 

injury, and the negligible force used, all compel the conclusion that any force used was de 

minimus. In fact, the Plaintiff cannot show that any excessive force was used. As a result, these 

Defendants did not violate the Plaintiff’s constitutional rights. Furthermore, the Plaintiff cannot 

show a violation of clearly established law, and the Defendants are accordingly entitled to 

qualified immunity. 

iii. The Plaintiff has failed to sufficiently allege that 

Deputies West and Hutson falsely arrested him. 

The lawfulness of the Plaintiff’s arrest is addressed in Section I(B)(1)(a)(i) above. 

Therefore, the Defendants hereby adopt and incorporate as if fully set forth herein the arguments 

contained in that section. Further, the Plaintiff did not sufficiently allege that either Deputy West 

or Hutson actually arrested him. He stated in his Complaint that he “was transported to the 

Lowndes County Jail in a deputy’s car.” (Doc. 1, Plaintiff’s Complaint ¶ 33.) However, the 

Plaintiff never alleged who handcuffed him and transported him to jail. (See, generally, Doc. 1, 

Plaintiff’s Complaint.) Accordingly, the Plaintiff’s false arrest claim is due to be dismissed. 

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iv. The Plaintiff has failed to sufficiently allege that 

Deputies West and Hutson maliciously prosecuted him. 

To establish a federal malicious prosecution claim under § 1983, the plaintiff 

must prove a violation of his Fourth Amendment right to be free from 

unreasonable seizures in addition to the elements of the common law tort of 

malicious prosecution. As to the constituent elements of the common law tort of 

malicious prosecution, this Court has looked to both federal and state law and 

determined how those elements have historically developed. For example, in 

Uboh, this Court examined both federal law and Georgia law and indicated that, 

for purposes of a § 1983 malicious prosecution claim, the constituent elements of 

the common law tort of malicious prosecution included: (1) a criminal 

prosecution instituted or continued by the present defendant; (2) with malice and 

without probable cause; (3) that terminated in the plaintiff accused’s favor; and 

(4) caused damage to the plaintiff accused. We note that these are also the same 

elements required under Alabama law for the tort of malicious prosecution. 

Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003). (internal citations omitted). As set 

forth above, the Plaintiff has not alleged “a violation of his Fourth Amendment right to be free 

from unreasonable seizures.” Id. Neither has the Plaintiff sufficiently alleged that “a criminal 

prosecution was instituted or continued” by Defendants West and Hutson “with malice or 

without [arguable] probable cause.” Wood, 323 F.3d at 881; Urbanique Production v. City of 

Montgomery, 428 F. Supp. 2d 1193 (M.D. Ala. 2006) (holding that finding of arguable probable 

cause is sufficient to defeat a malicious prosecution claim based on the defense of qualified 

immunity). 

As a matter of law, these law enforcement Defendants do not have the duty or power to 

prosecute violations of the Alabama Criminal Code. Alabama law states clearly that the power 

to prosecute violations of the Criminal Code rests with the district attorney and his assistants. 

Ala. Code 1975, § 12-17-84. The duty of Alabama sheriffs and deputy sheriffs is limited, in this 

regard, to “ferret out crime [and] to apprehend and arrest criminals . . . .” Ala. Code 1975, § 36-

22-3(4) (1991 replacement volume). In addition, in Barts v. Joyner, 865 F.2d 1187 (11th Cir. 

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1989), the Eleventh Circuit Court of Appeals found that a plaintiff could not recover damages 

from law enforcement officials where intervening parties (i.e., the prosecutor) broke the chain of 

causation, absent proof of deception. There is no allegation of deception in the instant 

Complaint. (See generally, Doc. 1, Plaintiff’s Complaint.) A prosecutor’s decision to bring or 

not to bring an action against the Plaintiff in this matter is such an intervening cause. 

There are insufficient allegations that the Defendants prosecuted the Plaintiff or who even 

actually charged the Plaintiff with possession of controlled substances and carrying a pistol 

without a license. Further there are insufficient allegations concerning whether the Plaintiff had 

committed the crimes of possession of controlled substances and carrying a pistol without a 

license and whether Deputies West and Hutson were aware of that he had committed these 

crimes. In Eubanks v. Gerwen, the Eleventh Circuit held that the defendant police officers and 

police chief “did not make the decision as to whether or not to prosecute [the plaintiff]; nor did 

they act in such a way as improperly to influence the decision by the State Attorney in that 

regard.” 40 F.3d 1157, 1160-61 (11th Cir. 1994). As a matter of Alabama law - they have no 

authority to prosecute violations of the Criminal Code. The Defendants in this case in no way 

participated – and under Alabama law could not have participated – in any alleged prosecution, 

and the Plaintiff has failed to sufficiently allege that the Defendants participated in any alleged 

prosecution. 

Because the Plaintiff has failed to allege facts supporting the elements of a malicious 

prosecution claim, this claim is due to be dismissed. 

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b. Deputies West and Hutson’s alleged actions did not violate 

clearly established law with regard to the Fourth Amendment. 

Under the facts as pled, there is no clearly established law that would provide fair warning to 

Deputies West and Hutson that their conduct violated the Fourth Amendment. Therefore, the 

Defendants are entitled to qualified immunity on the Plaintiff’s Fourth Amendment claims. 

2. The Defendants are entitled to qualified immunity on the Plaintiff’s 

First Amendment claims because Plaintiff has failed to allege any facts 

supporting a First Amendment claim. 

The Plaintiff purports to allege a violation of his First Amendment rights, but never 

alleges any facts or circumstances implicating the First Amendment. Certainly, the Plaintiff has 

failed to allege a violation of his First Amendment rights. Further, it is evident that no clearly 

established law would give the Defendants fair warning that their conduct violated the First 

Amendment. 

3. The Defendants are entitled to qualified immunity on the Plaintiff’s 

Fourteenth Amendment claims because has failed to allege any facts 

supporting a Fourteenth Amendment claim. 

“[W]here a particular Amendment ‘provides an explicit textual source of constitutional 

protection’ against a particular sort of government behavior, ‘that Amendment, not the more 

generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.’” 

Albright v. Oliver, 510 U.S. 266, 273 (1994) (citation omitted). In Albright, the Court 

specifically held that the proper claim in an unreasonable seizure or arrest case is a Fourth 

Amendment claim and not a Fourteenth Amendment Substantive Due Process Claim. “The 

Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth 

Amendment to address it.” 510 U.S. at 274. Accordingly, as the Fourth Amendment explicitly 

governs the Plaintiffs’ claims, their substantive due process Fourteenth Amendment claims 

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against these Defendants fail as a matter of law. Further, the Plaintiff can point to no clearly 

established law that a claim which can be addressed under the Fourth Amendment could also 

violate the Fourteenth Amendment. Therefore, even if the Fourteenth Amendment were 

implicated, the Defendants would be entitled to qualified immunity on this claim.

II. DEPUTIES CHRIS WEST AND LASHUN HUTSON ARE ENTITLED TO 

ABSOLUTE SOVEREIGN IMMUNITY ON ALL THE PLAINTIFF’S STATE 

LAW CLAIMS SET FORTH IN COUNTS II AND III OF THE PLAINTIFF’S 

COMPLAINT. 

Deputies West and Hutson, in their individual capacities, are absolutely immune to the 

Plaintiff’s state law claims of Assault and Battery and Conversion. Under Alabama law, each 

county sheriff is an executive officer of the State. See Article V, § 112 of the Alabama 

Constitution; McMillian v. Monroe County, 520 U.S. 781, 793 (1997) (holding that an Alabama 

sheriff represents the State of Alabama when executing law enforcement duties). Deputy sheriffs 

are legally extensions of the sheriff and are likewise considered officers of the State of Alabama. 

See Hereford v. Jefferson County, 586 So. 2d 209, 210 (Ala. 1991) (holding that a deputy is 

legally an extension of the sheriff). As executive branch, constitutional officers of the State, 

Deputies West and Hutson are immune from suit under Article I, § 14 of the Alabama 

Constitution of 1901. This section immunizes Deputies West and Hutson from all state law 

claims even though sued in their individual capacities. Tinney v. Shores, 77 F.3d 378, 383 (11th 

Cir. 1996) (holding sheriff and deputy sheriff were entitled to state sovereign immunity); Ex 

parte Davis, 930 So. 2d 497, 501-02 (Ala. 2005) (granting petition for writ of mandamus 

directing trial court to dismiss complaint against deputy sheriff in his individual capacity based 

on his entitlement to state immunity); Hereford v. Jefferson County, 586 So. 2d at 210; King v. 

Colbert County, 620 So. 2d 623, 626 (Ala. 1993); Carr, 916 F.2d at 1525-26; Ex parte Purvis, 

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689 So. 2d 794 (Ala. 1996) (holding sheriff and deputy were entitled to sovereign immunity in 

both their individual and official capacities); Ex parte Purvis, 689 So. 2d 794, 795-96 (granting 

petition for writ of mandamus directing the trial court to dismiss complaint against sheriff and 

deputy sheriff based on sovereign immunity where it was undisputed that they were working in 

the line and scope of their employment”); Ex parte Haralson, 871 So. 2d 802, 807 (Ala. 2003) 

(holding deputy sheriff entitled to sovereign immunity); Ex parte McWhorter, 880 So. 2d 1116, 

1117 (Ala. 2003) (holding deputy sheriff entitled to sovereign immunity). 

In the instant Complaint, it is alleged that the Deputies were acting within the line and 

scope of their duties as Deputy Sheriffs. (See Doc. 1, Complaint, ¶¶ 4, 5, 43.) Consequently, all 

of the Plaintiff’s state law claims against Deputies West and Hutson are due to be dismissed. 

III. THE PLAINTIFF’S CLAIMS FOR EQUITABLE AND DECLARATORY RELIEF 

ARE DUE TO BE DISMISSED.

Initially, the claims for equitable relief and declaratory relief are due to be dismissed 

because the Plaintiff has failed to establish a constitutional violation or a violation of state law. 

Further, the claims for equitable and declaratory relief are due to be dismissed for the reasons set 

forth below. 

A. DEPUTIES WEST AND HUTSON IN THEIR INDIVIDUAL CAPACITIES 

ARE NOT PROPER PARTIES AGAINST WHOM SUCH CLAIMS MAY BE 

BROUGHT. 

The Plaintiff has sued the Defendants in their individual capacities only. (See Plaintiff’s 

Complaint, ¶¶ 4 & 5.) Deputies West and Hutson, in their individual capacities have no authority to 

grant any equitable relief to the Plaintiff. See Edwards v. Alabama Dep’t of Corrections, 81 F. 

Supp. 2d 1242, 1252, n.3 (M.D. Ala. 2000) (“[I]n their individual capacities, the defendants are not 

in a position to afford any other type of relief; only in his or her official capacity can a governmental 

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official give equitable relief.”); Rogers v. Haley, 421 F. Supp. 2d 1361, 1364 (M.D. Ala. 2006) 

(“[T]he requested [injunctive] relief can be provided by the defendants in their official capacities 

only.”) Further, Deputies West and Hutson individually are not properly the subject of any 

declaratory relief. See Price v. Univ. of Alabama, 318 F. Supp. 2d 1084, 1094-95 (N.D. Ala. 2003) 

(dismissing individual capacity claims for declaratory relief because if the defendant was “properly 

the subject of such relief at all it would only be in his official capacity”). Accordingly, the 

Plaintiff’s claims for equitable and declaratory relief are due to be dismissed. 

B. THIS COURT LACKS SUBJECT MATTER JURISDICTION OVER THE 

PLAINTIFF’S CLAIMS FOR EQUITABLE AND DECLARATORY 

RELIEF. 

Subject matter jurisdiction is a “threshold issue” which the Plaintiff must establish to the 

Court’s satisfaction before he may prevail on any of his claims. See generally, Rosado v. 

Wyman, 397 U.S. 397, 402 (1970); Ellis v. Gen’l Motors Acceptance Corp., 160 F.3d 703, 706 

(11th Cir. 1998). 

1. The Plaintiff lacks standing to bring his claims for equitable relief and 

declaratory relief. 

a. The Plaintiff lacks standing to bring claims for equitable relief 

and declaratory relief under federal law. 

A plaintiff seeking the jurisdiction of the federal courts must show a personal stake in the 

outcome. Baker v. Carr, 369 U.S. 186, 204 (1962). The plaintiff must have sustained, or be 

about to sustain, some direct injury. Golden v. Zwickler, 394 U.S. 103, 109-10 (1969). Of direct 

relevance to the present case, “[p]ast exposure to illegal conduct does not in itself show a present 

case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present 

adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974). 

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In City of Los Angeles v. Lyons, the plaintiff alleged that he had been subjected to a 

chokehold by arresting officers in violation of his federally protected rights. 461 U.S. 95, 97 

(1983). The plaintiff sought an injunction barring the future use of police chokeholds. 461 U.S. 

at 98. After the Ninth Circuit affirmed the district court’s grant of a preliminary injunction, the 

United States Supreme Court reversed, holding that the plaintiff lacked standing. 461 U.S. at 99-

100. The Court also stated: “Lyons’ assertion that he may again be subject to an illegal 

chokehold does not create the actual controversy that must exist for a declaratory judgment to be 

entered.” Id. at 104. The Court opined that the plaintiff’s standing rested solely on pure 

speculation that he might be stopped by the police, might be arrested, and might again create a 

disturbance in the jail and might be subjected to another chokehold. Id. 461 U.S. at 108. The 

court noted that five months had elapsed between the choking incident and the filing of the 

complaint and the plaintiff was not subjected to another chokehold. Id. 

Here, any injunctive relief is equally speculative. There is no allegation of any danger of 

future exposure to allegedly illegal conduct. The Plaintiff’s claim is, in essence, that he might be 

stopped by the Defendants, might be searched, might be subjected to force, and that he might be 

prosecuted. Such speculation into future conduct does not grant the Plaintiff standing on his 

claims for injunctive or declaratory relief. See, e.g., Lyons, 461 U.S. at 108. 

b. The Plaintiff lacks standing to bring claims for equitable relief 

under state law.5

The Plaintiff lacks standing because he cannot show that he “will suffer immediate harm if 

the requested relief is not granted.” Ex parte Alabama Dep’t of Mental Health and Retardation, 837 

So. 2d 808, 811 (Ala. 2002). ““Injunctive relief is extraordinary relief; it will not be granted 

‘merely to allay an apprehension of a possible injury; the injury must be imminent and irreparable in 

 

5

 The Plaintiff does not seek declaratory relief under state law. (Doc. 1, Plaintiff’s Complaint, p. 8 (a.)). 

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an action at law.’” Id. In the Plaintiff’s Complaint, he makes no allegation that he is in danger of 

imminent injury if equitable relief is not granted. (See generally, Doc. 1, Plaintiff’s Complaint.) 

Therefore, he is not entitled to any equitable relief for any state law claims due to lack of 

standing. 

2. The Plaintiff’s claims for equitable and declaratory relief are moot. 

a. The Plaintiff’s claims for equitable and declaratory relief are 

moot under federal law. 

In the instant case, the Plaintiff cannot overcome his initial hurdle of subject matter 

jurisdiction with regard to his claim for injunctive relief because his claims for injunctive relief 

are moot. “[A] moot suit ‘cannot present an Article III case or controversy and the federal courts 

lack subject matter jurisdiction to entertain it.’” National Advertising Co. v. City of Miami, 402 

F.3d 1329, 1332 (11th Cir. 2005). “Past exposure to illegal conduct does not constitute a present 

case or controversy involving injunctive relief if unaccompanied by any continuing, present 

adverse effects.” O’Shea, 414 U.S. at 495-96; see also Malowney v. Federal Collection Deposit 

Group, 193 F.3d 1342, 1347 (11th Cir. 1999) (holding that a speculative threat of future injury is 

insufficient to satisfy the case and controversy requirement of the declaratory judgment act and 

dismissing complaint where allegations did not show that the plaintiffs were “likely to be subject 

to future injury.”) In the Complaint, all the allegations involve past conduct. (See generally, 

Doc. 1, Plaintiff’s Complaint.) There is no allegation that any continuing violation is occurring 

or that the Plaintiff is “likely to be subject to future injury.” (Id.) Accordingly, the Plaintiff’s 

Complaint is due to be dismissed as moot. 

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b. The Plaintiff’s claims for equitable relief are moot under state 

law.6

An injunction is to be issued only to prevent substantial injury where no adequate 

remedy at law is available; courts will not exercise the extraordinary power of 

injunction merely to allay apprehension of injury-the injury must be both 

imminent and irreparable in a court at law. 

United Services Auto. Ass’n v. Allen, 519 So. 2d 506, 508 (Ala. 1988) (internal citations 

omitted); see also Ormco Corp. v. Johns, 869 So. 2d 1109, 1110 (Ala. 2003). “[I]f the relief 

sought is preventive, there must be a state of affairs which actually threatens such right and calls 

for present relief.” American Federation of State, County and Municipal Emp. v. Dawkins, 104 

So. 2d 827, 830 (Ala. 1958). The alleged harm in this case is alleged to have already occurred. 

The Plaintiff cannot make a showing that there is any threat of imminent and irreparable future 

harm. Therefore, injunctive relief is unavailable for the Plaintiff in this case. 

CONCLUSION 

Based on the foregoing, Defendants Chris West and Lashun Hutson request that this 

Honorable Court enter an order dismissing all claims against them in this action.

Respectfully submitted this the 5th day of September, 2006. 

s/Daryl L. Masters 

DARYL L. MASTERS Bar No. MAS018 

AMANDA KAY MORGAN Bar No. ALL079 

Attorneys for Defendants 

WEBB & ELEY, P.C. 

7475 Halcyon Pointe Drive (36117) 

P.O. Box 240909 

Montgomery, Alabama 36124 

Telephone: (334) 262-1850 

Fax: (334) 262-1889 

E-mail: rrobertson@webbeley.com

 

6

 The Plaintiff does not seek declaratory relief under state law. (Doc. 1, Plaintiff’s Complaint, p. 8 (a.)). 

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CERTIFICATE OF SERVICE

 I hereby certify that on September 5, 2005, I electronically filed the foregoing with the 

Clerk of the Court using the CM/ECF system which will send notification of such filing to the 

following: Jay Lewis, Esq.

 s/Daryl L. Masters 

 OF COUNSEL 

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