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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. ) 

DEFENDANTS CHRIS WEST AND LASHUN HUTSON’S REPLY TO THE 

PLAINTIFF’S RESPONSE TO THEIR MOTION TO DISMISS

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

Hutson, the Defendants in the above-referenced matter, and submits their Reply to the Plaintiff’s 

Response to their Motion to Dismiss. 

I. THE PLAINTIFF HAS FAILED TO SHOW THAT HE HAS MET THE 

HEIGHTENED PLEADING STANDARD. 

The Plaintiff argues that his deficient Complaint somehow meets the heightened pleading 

standard by asserting that the facts that the Defendants asserted were left out of the Complaint 

are not relevant. The Defendants will address each of the Plaintiff’s arguments in numbers 

corresponding to their arguments and show why each of the facts that are missing from the 

Complaint are completely relevant to the claims presented. 

1. The Plaintiff failed to allege facts showing that the Defendants did not have 

reasonable suspicion to stop his vehicle. Although the Plaintiff alleged that he was “peacefully 

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and lawfully” operating his motor vehicle1

, he does not allege that he was not doing something 

else unlawful or even suspicious as would support a Terry stop. Illegal activity is not required 

for a Terry stop, only reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 22 (1968) 

2. and 3. As stated in the Defendants’ Brief in support of their Motion to Dismiss, 

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). The Plaintiff clearly knows whether there were any law enforcement markings on 

the Defendants or their vehicle and whether he knew that the Defendants were law enforcement 

officers. Because these facts could bear on the issue of the reasonableness of the Defendants’ 

actions, the Plaintiff is required to plead them. 

4. “[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 v. Long, 463 

U.S. 1032, 1049 (1983) (emphasis added). Because the Plaintiff has failed to allege what parts 

of the automobile were searched, there is no way to determine whether the Defendants were in 

compliance with this legal standard. 

 

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 “Although the court must take all the factual allegations in the complaint as true for the purposes of this motion to 

dismiss, the court is not bound to accept as true a legal conclusion couched as a factual allegation.” Nicholson v. 

Moates, 135 F.Supp.2d 1185, 1189 (M.D.Ala. 2001) 

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5. The fact of whether the Plaintiff had committed the alleged offenses or whether 

the Defendants knew that he had committed these crimes has an enormous bearing on whether 

the Defendants had reasonable suspicion for a Terry stop or even arguable probable cause. 

6. Whether there was a firearm or other weapon in the car, in plain view or 

otherwise, is relevant to whether the search was lawful. See, e.g., Michigan, 463 U.S. at 1049 

(“[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.”) 

7. “[N]either handcuffing nor other restraints will automatically convert a Terry stop 

into a de facto arrest requiring probable cause.” U.S. v. Kapperman, 764 F.2d 786, 791 n. 4 (11th 

Cir. 1985). Therefore, the allegation that Deputy West handcuffed the Plaintiff does not 

constitute an arrest. The Plaintiff’s statement that West’s “pretty much qualifies as an arrest” is 

unsupportable. Who arrested the Plaintiff and transported him to jail is relevant to the 

determination of who actually arrested the Plaintiff. 

8. Who charged the Plaintiff with possession of controlled substances and carrying a 

pistol without a license is relevant to whether it was one of the Defendants who allegedly 

maliciously prosecuted the Plaintiff. The Plaintiff states that his allegation that the Defendants 

“instituted a legal proceeding against him” is insufficient because it is a mere legal conclusion. 

See Nicholson, 135 F.Supp.2d at 1189 (“Although the court must take all the factual allegations 

in the complaint as true for the purposes of this motion to dismiss, the court is not bound to 

accept as true a legal conclusion couched as a factual allegation.”) 

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9. Who was responsible for not returning the alleged $400.00 the Plaintiff was 

missing is a fact relevant to whether one of the Defendants was responsible for conversion. The 

Plaintiff never alleged that West returned the lesser amount or that West was the only person 

with access to the money between the time the money was taken and the time it was returned. 

 10. The Plaintiff argues that it is irrelevant whether the vehicles were traveling over 

35 miles per hour at the time the PIT was executed. However, the Plaintiff’s own allegations 

make this fact relevant. The Plaintiff alleges that a PIT maneuver at speeds over 35 miles per 

hour constitutes deadly force. (Doc. 1, Plaintiff’s Complaint, ¶ 23.) This allegation must be 

accepted as true. See, e.g., Nicholson v. Moates, 135 F.Supp.2d 1185, 1189 (M.D.Ala. 2001). 

Whether the alleged force used was deadly or not bears on the standard of objective 

reasonableness, and therefore, this omitted fact is relevant to the issue of qualified immunity. 

II. THE PLAINTIFF HAS FAILED TO SHOW THAT HE SUFFICIENTLY 

ALLEGED AN ILLEGAL SEARCH 

A. The Search was a lawful search incident to a lawful arrest. 

The Plaintiff asserts that his subjective knowledge and intentions can somehow affect 

whether the Defendants had arguable probable cause to arrest him. However, it is of no 

consequence whether the Plaintiff possessed the scienter required for the commission of a crime. 

What is relevant is that the objective facts as viewed by the Defendants: The Plaintiff “refused 

to pull over” after Defendant West “gestured for him to pull over.” (Doc. 1, Plaintiff’s 

Complaint, ¶¶ 20 and 19 respectively.) As set forth in the Defendants’ brief in support of its 

Motion to Dismiss, when a person “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.” Ala. Code § 32-5A-193(a) (1975). 

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Considering the objective facts as pled by the Plaintiff, clearly the Defendants had arguable 

probable cause to arrest him. It is not required that the Plaintiff was actually guilty for the arrest to 

be lawful. Further, the Plaintiff does not contest that, if the arrest was lawful, the search was lawful 

as well. 

B. The Search was based on, at least, arguable probable cause. 

The Plaintiff has attempted to avoid the consequences of his own Complaint although it is 

clear that this Court must consider this motion “as if all the allegations contained [in the 

Complaint] were true.” Cottone v. Jenne, 326 F.3d 1352, 1355 (11th Cir. 2003). The Complaint 

is clear that the Plaintiff did not stop when signaled to do so and that he refused the Defendant’s 

order. (Plaintiff’s Complaint, ¶¶ 15, 17, 19, 20, and 26.) The Plaintiff’s subjective motivations 

have no bearing on the issue of objective reasonableness, and there is no allegation showing that 

the Defendants could have possibly been aware of the Plaintiff’s subjective intentions. Clearly, 

under the facts as alleged the Defendants had probable cause to believe that the automobile 

contained evidence of a crime. See, e.g., U.S. v. Tankersley, 492 F.2d 962, 968 (7th Cir. 1974) 

(“[T]he police saw the defendants light something in front of Ryals' home, pursued them on foot, 

firing shots in the air, and shot out a tire to prevent the defendants' escape. Under these 

circumstances the police had probable cause to search the vehicle immediately.”) 

C. The search was reasonable for the officers’ safety. 

The Plaintiff notes that the he was in handcuffs by the time that the search took place, but 

there is no allegation that his passenger was similarly restrained. The passenger had equal 

opportunity to grab a weapon. As stated above, the Complaint is clear that the Plaintiff did not 

stop when signaled to do so and that he refused the Defendant’s order. (Plaintiff’s Complaint, 

¶¶ 15, 17, 19, 20, and 26.) These facts “taken together with the rational inferences from those 

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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 (internal quotation marks 

omitted). 

III. THE PLAINTIFF HAS FAILED TO SHOW THAT HE SUFFICIENTLY 

ALLEGED THE USE OF EXCESSIVE FORCE 

A. The Plaintiff has failed to show that he sufficiently alleged the use of 

excessive vehicular force. 

The Plaintiff cited only one case - Tennessee v. Garner2 for his position that the 

Defendants used deadly force, and so that force was unreasonable. The Plaintiff, however, has 

not sufficiently alleged the 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). 

The Plaintiff stated that a PIT maneuver at speeds of over 35 miles per hour is deadly force, but 

fails to allege that the vehicles were traveling above that speed. Without any factual allegations 

showing that deadly force was used, the Plaintiff’s argument is misplaced. 

What the Plaintiff does allege is that he did not stop when signaled to stop by the 

Deputies. Whether the Plaintiff was subjectively simply attempting to get to a more populated 

area makes no difference – it is clear that the objective facts (from the Plaintiff’s Complaint) 

were that the Plaintiff did not stop when signed to do so by law enforcement officers. The 

Defendants had no way of knowing the Plaintiff’s subjective thoughts. As set forth in the 

Defendants’ Brief in support of their Motion to Dismiss, the fact that the Plaintiff was 

objectively attempting to flee, made the vehicular force was objectively reasonable to effectuate 

a lawful arrest. Lee v. Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002) (stating that the “typical

arrest involves some force”) Objective reasonableness is the standard (not subjective 

 

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 471 U.S.1 (1985). 

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reasonableness). See, e.g., 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). 

B. The Plaintiff has failed to show that he sufficiently alleged the use of 

excessive force with regard to the warning shot. 

The Plaintiff quotes language from Bell v. City of Milwaukee3 but leaves out the 

pertinent portion of the quote. In Bell, the court noted: 

Under Model Penal Code § 3.11(1) (Proposed Official Draft 1962), deadly force 

can be inferred in the event that one “[p]urposely fire [es] a firearm in the 

direction of another person or at a vehicle in which another person is believed to 

be” (emphasis added), but “[a] threat to cause death or serious bodily harm by the 

production of a weapon or otherwise, so long as the actor's purpose is limited to 

creating an apprehension that he will use deadly force if necessary, does not 

constitute deadly force.” 

Bell, 746 F.2d at 1279, n. 89 (modifications in original). The Bell court specifically held that 

true warning shots were not excessive force. In the Plaintiff’s Complaint, the Plaintiff expressly 

alleges that the shot was a “warning shot.” There is no allegation that the Plaintiff was actually 

shot at by either Defendant. Accordingly, the Plaintiff’s argument is without merit in the context 

of his own pled allegations. 

 Further, the Plaintiff, in his Response, ignores the fact that the Defendants have cited two 

cases wherein the issue of excessive force was not left for the jury to decide. See 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” and stating that officer was entitled to 

summary judgment based on qualified immunity); O'Neal v. Ellison, 15 F.3d 1088 (9th Cir. 

1994) (affirming summary judgment for corrections officer who fired warning shot). From the 

allegations of the Complaint, it is clear that the Plaintiff was (objectively) fleeing. Further, from 

 

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 746 F.2d 1205, 1279 (7th Cir. 1984), overruled on other grounds. 

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the allegations of the Complaint, it is clear that the Plaintiff was (objectively) refusing the 

Defendants’ orders. As noted above, the Defendants had no way of knowing the Plaintiff’s 

subjective thoughts or reasons for his evasive actions. Clearly, based on the applicable law, the 

force allegedly used was reasonable. 

Further, the Plaintiff ignores the Defendants’ argument that the force allegedly used in 

the instant case – even when taken with the other circumstances wherein the Defendants 

allegedly grabbed the Plaintiff, threw him to the ground, handcuffed him, and ripped his pants 

off - is clearly de minimus in nature under established Eleventh Circuit precedent. See, e.g., 

Durruthy, 351 F. 3d 1080, 1080 & 1094 (11th Cir. 2003); 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). Accordingly, the Plaintiff has conceded the Defendants’ point. 

See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (finding that 

a party who fails to address an issue has waived it). Accordingly, the Plaintiff’s claim that he 

was subjected to excessive force by the warning shot and the alleged actions of the Defendants in 

throwing him to the ground, handcuffing him, and ripping his pants off is due to be dismissed. 

IV. THE PLAINTIFF HAS FAILED TO SHOW THAT HE SUFFICIENTLY 

ALLEGED AN UNLAWFUL ARREST 

As set forth in Section II, Part A, above, the Plaintiff’s arrest was legal. However, the 

Plaintiff has not established that either Defendant was the person who actually arrested him. The 

Plaintiff’s arguments on this point are weak and not supported by case law. He asserts that a 

seizure is equivalent to an arrest and that handcuffing the Plaintiff constituted an arrest. Neither 

of these assertions have a basis in the law. In fact, the opposite is true. “[N]either handcuffing 

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nor other restraints will automatically convert a Terry stop into a de facto arrest requiring 

probable cause.” Kapperman, 764 F.2d at 791 n. 4. For purposes of a case, such as the instant 

case, where the heightened pleading standard is applicable the Plaintiff must do more than allege 

that he was handcuffed by one of the Defendants to establish that either Defendant arrested him. 

V. THE PLAINTIFF HAS FAILED TO SHOW THAT HE SUFFICIENTLY 

ALLEGED THAT THE DEFENDANTS MALICIOUSLY PROSECUTED HIM. 

In the Defendants’ Brief in support of their Motion to Dismiss, they asserted that, because 

there is no allegation that the Defendants deceived or otherwise improperly influenced the 

prosecutor who alleged prosecuted the Plaintiff, the Plaintiff cannot recover against them in a 

malicious prosecution action. See Barts v. Joyner, 865 F.2d 1187 (11th Cir. 1989); Eubanks v. 

Gerwen, 40 F.3d 1157, 1160-61 (11th Cir. 1994). The Plaintiff failed to respond to this 

argument. Therefore, he has conceded the merits of this argument, and the Plaintiff’s malicious 

prosecution claim is due to be dismissed. Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 

1573 n.6 (11th Cir. 1989) (finding that a party who fails to address an issue has waived it). 

Further, the Plaintiff has failed to cite any legal authority for his opposition to the Defendants’ 

argument that they lack the power to prosecute the Plaintiff. The Plaintiff’s malicious 

prosecution claim is also due to be dismissed based on the other arguments as set forth in the 

Defendants’ Brief in support of their Motion to Dismiss. 

VI. THE PLAINTIFF HAS FAILED TO REBUT THE DEFENDANTS’ ARGUMENT 

THAT HE HAS FAILED TO STATE A FOURTEENTH AMENDMENT CLAIM. 

The Plaintiff has failed to rebut any of the arguments set forth by the Defendants in 

support of their position that the Plaintiff’s Fourteenth Amendment claims are due to be 

dismissed. Therefore, he has conceded the merits of this argument, and the Plaintiff’s malicious 

prosecution claim is due to be dismissed. Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 

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1573 n.6 (11th Cir. 1989) (finding that a party who fails to address an issue has waived it). 

VII. THE PLAINTIFF HAS FAILED TO MEET HIS BURDEN IN OVERCOMING 

THE DEFENDANTS’ QUALIFIED IMMUNITY DEFENSE. 

The Plaintiff has failed to meet his burden in showing that his constitutional rights were 

violated and that the Defendants were on notice that their conduct crossed a bright constitutional 

line. Plaintiff relies on Hope v. Pelzer as if it was the death knell for qualified immunity. 536 

U.S. 730 (2002). Nothing could be further from the truth. “[The Eleventh Circuit] undertake[s 

the qualified immunity] determination in light of the specific context of the case, not as a broad 

general proposition, in an effort to ensure that before [public officials] are subjected to suit, 

[they] are on notice their conduct is unlawful.” Williams v. Consolidated City of Jacksonville, 

341 F.3d 1261, 1269-70 (11th Cir. 2003) (some internal citations omitted; internal quotation 

marks omitted); see also Willingham v. Loughnan, 321 F.3d 1299, 1300 (11th Cir. 2003) (“The 

Supreme Court decision in [Hope], did not change the preexisting law of the Eleventh Circuit 

much.”). Plaintiff, even post-Hope, must show that the Defendants were on notice that their 

conduct crossed a constitutional bright line, which most often requires a pre-existing factually 

similar case. 321 F.3d at 1303 (holding “preexisting, factually similar cases are--not always, but 

(in our experience) usually--needed to demonstrate that officials were fairly warned”). The 

Plaintiff has only cited two cases in support of his position that the Defendants are not entitled to 

qualified immunity – Redd v. City of Enterprise, 140 F.3d 1378, 1382 (11th Cir. 1998) and Von 

Stein v. Brescher, 904 F.2d 572, 579 (11th Cir. 1990). The Plaintiff cites both these cases for the 

proposition that it is clearly established that an arrest without probable cause is unconstitutional. 

The problem with the Plaintiff’s assertion is that this statement is “a broad general proposition” 

that is inapplicable in the qualified immunity analysis. Williams , 341 F.3d at 1269-70. Further, 

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as set forth above, there are insufficient allegations showing that the Defendants actually arrested 

the Plaintiff or that there was a lack of arguable probable cause for the arrest. Accordingly, the 

Plaintiff has failed to meet his burden in defeating the qualified immunity defense with regard to 

the unlawful arrest claim. 

The Plaintiff does not even attempt to meet his burden in overcoming the qualified 

immunity defense with regard to his unreasonable search, excessive force, and malicious 

prosecution claims. Therefore, he has conceded the merits of the qualified immunity defense 

with regard to these claims, and they are therefore due to be dismissed. Greenbriar, Ltd. v. City 

of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (finding that a party who fails to address 

an issue has waived it). 

VIII. THE PLAINTIFF’S OPPOSITION TO THE DEFENDANTS’ ABSOLUTE 

IMMUNITY DEFENSE IS BASED ON AN ERRONEOUS PRESENTATION 

OF THE LAW. 

 The Defendants based their Motion to Dismiss the Plaintiff’s state law claims on their 

entitlement to absolute immunity. In their Brief in support of their Motion to Dismiss, the 

Defendants presented law conclusively establishing that they – as executive officers of the state - 

are entitled to absolute immunity from suit whether sued in their official or individual capacities 

even for their intentional acts. See, e.g., Ex parte Purvis, 689 So. 2d 794, 795-96 (Ala. 1996) 

(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”).4 

 

 

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 As pointed out in the Defendants’ Brief in support of their Motion to Dismiss, the Plaintiff has alleged that the 

Deputies were acting within the line and scope of their duties as Deputy Sheriffs. (See Doc. 1, Complaint, ¶¶ 4, 5, 

43.) 

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 The Plaintiff asserts that the Defendants are not entitled to absolute immunity where it is 

alleged that they “act[ed] willfully, maliciously, illegally, fraudulently, in bad faith, beyond 

[their] authority, or under a mistaken interpretation of the law.” However, the Alabama Supreme 

Court rejected this argument in Ex parte Purvis, 689 So.2d at 795-96. In Ex parte Purvis, the 

Court stated that such an exception was not applicable to claims against sheriffs and deputy 

sheriffs but instead applied only to lower level state employees. Id. The court went on to grant 

the sheriff and deputy sheriff absolute immunity even where the Complaint alleged intentional

wrongdoing. All the cases relied upon by the Plaintiff were decided prior to the Supreme 

Court’s decision in Ex parte Purvis. Since the Supreme Court’s clear mandate regarding 

absolute immunity for sheriffs and deputy sheriffs, neither the Supreme Court nor the Court of 

Civil Appeals have applied this exception to sheriffs and their deputies. Because the law upon 

which the Plaintiff relies is superseded by the Supreme Court’s decision in Ex parte Purvis, the 

Defendants are entitled to absolute immunity as set forth in their Brief in Support of their Motion 

to Dismiss. 

The Plaintiff also mentions discretionary function immunity. However, the Defendants 

did not assert discretionary function immunity because they are entitled to absolute immunity. 

The Supreme Court has bifurcated state law immunity into two types: absolute sovereign 

immunity afforded constitutional officers and a more limited “state-agent immunity” for lower 

level state employees. See Purvis, 689 So. 2d at 795-96 (“In the first place, [cases limiting 

immunity] did not deal with claims against a sheriff and a deputy sheriff or other constitutional 

officer, but instead dealt with ‘intentional wrongful conduct’ . . . involving state employees.”) 

(internal citations omitted); Sheth v. Webster, 145 F.3d 1231, 1236 (11th Cir. 1998) (“Alabama 

law recognizes at least two types of immunity from suit or liability for the individual executive 

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acts of public officers[:]. . . absolute “sovereign” immunity, except for injunctive relief, afforded 

to certain state constitutional officers, including sheriffs and deputy sheriffs . . . [and] a form of 

immunity, not absolute, to state, as opposed to municipal and county, executive officers who do 

not hold constitutional offices”). The Defendants in the instant case are entitled to the more 

potent absolute immunity which is designed to protect executive officers of the state instead of 

the more exception-ridden state employee immunity provided for lower level state agents as 

described in Ex parte Cranman, 792 So. 2d 392 (Ala. 2000) and adopted in Ex parte Butts, 775 

So. 2d 173, 178 (Ala. 2000). 

Ex parte Cranman modified only the immunity granted state employees in general. It did 

not affect the pervasive absolute sovereign immunity given constitutional officers or other 

function-based categories of defendants: 

In Cranman, although we restated the rule governing state-agent immunity, we 

did not address the state immunity afforded to sheriffs and deputy sheriffs for 

actions taken while working in the line and scope of their employment, and we 

did not overrule Ex parte Purvis, 689 So. 2d 794 (Ala. 1996). 

Ex parte Haralson, 853 So. 2d 928, 931 (Ala. 2003) (emphasis added). As stated above, the 

Cranman opinion itself explicitly exempted several types of absolute immunity (including that of 

sheriffs and deputies) from the reach of the Cranman reformulation: 

We do not deal here with the absolute immunity of witnesses, judges, prosecutors, 

and legislators, nor do we overrule Purvis, 689 So. 2d at 795 (Ala. 1996) 

[describing the absolute immunity of sheriffs and deputies].” 

792 So. 2d at 396 n.2. 

 Discretionary function immunity protects lower-level state employees – not executive 

officers of the state such as the Defendants in this case. The case cited by the Plaintiff 

regarding discretionary function immunity does not involve immunity as applied to an executive 

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officer of the state such as a sheriff or deputy sheriff, but instead involved a city official. Couch 

v. City of Sheffield, 708 So.2d 144 (Ala. 1998). 

 The Plaintiff has missed the entire point of the Defendants’ Argument in relying on the 

discretionary function immunity – a concept that is inapplicable in the instant case – to defeat the 

Defendants’ Argument that they are entitled to absolute immunity. Because the Plaintiff has 

failed to rebut the Defendants’ showing that they are entitled to absolute immunity, it is 

conclusively established that the Defendants’ Motion to Dismiss the Plaintiff’s state law claims 

is due to be granted. 

IX. THE PLAINTIFF HAS FAILED TO SHOW THAT THEIR CLAIMS FOR 

DECLARATORY AND INJUNCTIVE RELIEF ARE NOT DUE TO BE 

DISMISSED. 

The Plaintiff concedes that: “absent retaliation, he is unlikely to be subject to” any 

alleged unlawful acts in the future. (Doc. 8, Plaintiff’s Response, p. 13.) Because the Plaintiff 

has not alleged any facts showing that he is in imminent danger of retaliation, his claims for 

declaratory and injunctive relief are due to be dismissed. Further, the Plaintiff has failed to 

respond to the Defendants’ argument that Deputies West and Hutson in their individual 

capacities are not proper parties against whom claims for declaratory and injunctive relief may 

be brought. Therefore, the Plaintiff has conceded the merits of this argument, and the Plaintiff’s 

claims for declaratory and injunctive relief are due to be dismissed. Greenbriar, Ltd. v. City of 

Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (finding that a party who fails to address an 

issue has waived it)

Based on the foregoing as well as the arguments set forth in their Motion to Dismiss, the 

Defendants Chris West and Lashun Hutson request that this Honorable Court enter an order 

dismissing all claims against them in this action. 

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RESPECTFULLY SUBMITTED this the 27th 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

CERTIFICATE OF SERVICE

 I hereby certify that on September 27, 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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