1 Defendant has requested oral argument on his Motion. (Motion, ¶ 7.) After careful

review of the extensive written materials submitted, the Court’s previous orders addressing many of the

legal issues raised here, and all relevant parts of the court file, the Court finds that oral argument would

not be of material assistance in resolving the Motion. As such, the request for oral argument is denied. 

See Local Rule 7.3 (providing that “the court may in its discretion rule on any motion without oral

argument”).

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

GERALD ANDERSON, )

 )

Plaintiff, )

 )

v. ) CIVIL NO. 05-0393-WS-M

 )

JOHN GREENE, )

 )

Defendant. )

ORDER

This matter is once again before the Court on Rule 12 issues, this time in the form of

Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint. The Motion has been briefed

and is ripe for disposition at this time.1

I. Background.

This marks the fourth occasion that the Court has been called upon to examine the merits of a

motion to dismiss in this case. A brief overview of the procedural history of this action may be

beneficial in achieving an expeditious resolution of the pending Motion.

A. The State Court Proceedings.

On August 4, 2004, plaintiff Gerald Anderson filed suit against defendant John Greene and

fictitious parties in the Circuit Court of Monroe County, Alabama. The Complaint alleged that Greene,

a Conecuh County Deputy Sheriff, committed various state-law torts against Anderson in Monroe

County, some five miles from the Conecuh County line. In particular, the Complaint asserted that in

September 2003, Deputy Greene entered plaintiff’s residence without permission, slapped him “in a

Case 1:05-cv-00393-WS-M Document 25 Filed 11/10/05 Page 1 of 17
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rude, hostile and willful manner,” “interrogated him without any probable cause,” and “took pictures

and serial numbers of televisions and guns” belonging to plaintiff. (Complaint, ¶¶ 6, 10, 14, 18.) Based

on these allegations, the Complaint enumerated claims for assault and battery, false imprisonment,

invasion of privacy and outrage.

On June 8, 2005, Circuit Judge Sam Welch granted Deputy Greene’s motion for summary

judgment on the state-law causes of action on absolute immunity grounds. Concurrently, however,

Judge Welch authorized Anderson to file an amended complaint, including new federal civil rights

claims, as well as a new defendant, Conecuh County Sheriff Tracey Hawsey. Based on the state court

rulings, Anderson filed an Amended Complaint naming Sheriff Hawsey as an additional defendant and

asserting three new causes of action, to-wit: (i) a claim that defendants Greene and Hawsey “violated

the constitutional and/or statutory [sic] afforded the Plaintiff under the Fourteenth Amendment and/or

42 U.S.C. § 1983 and/or 42 U.S.C. § 1981(a)” (Amended Complaint, ¶ 23); (ii) a negligent

supervision claim against Sheriff Hawsey; and (iii) a claim against Greene and Hawsey for violation of

Article 1, Section 6, of the Constitution of Alabama, guaranteeing the right to due process of law. 

Upon filing of the Amended Complaint, defendants removed this action to federal court. 

B. The Original Motion to Dismiss.

Once in federal court, defendants moved to dismiss the Amended Complaint, based on the

following grounds, inter alia: (a) res judicata; (b) lack of support for § 1981(a) claim; (c) failure to

state a § 1983 claim against Sheriff Hawsey; (d) qualified immunity as to § 1983 claims; and (e)

sovereign immunity on state-law claims. In an Order (doc. 9) entered on August 16, 2005, the Court

agreed with defendants that the Amended Complaint failed to state a claim under § 1981(a) because it

did not allege intentional race discrimination. The Court also dismissed plaintiff’s § 1983 claims against

Sheriff Hawsey, reasoning that Anderson appeared to be proceeding on a theory of respondeat

superior but had failed to allege facts tending to show either that Sheriff Hawsey personally participated

in the alleged unconstitutional conduct or that there was a causal connection between Sheriff Hawsey’s

Case 1:05-cv-00393-WS-M Document 25 Filed 11/10/05 Page 2 of 17
2 Anderson filed a Motion to Alter or Amend (doc. 13) the portion of the August 16

Order dismissing his claims against Sheriff Hawsey. In support of that motion, Anderson contended

that his claims against Sheriff Hawsey were “open and obvious and should have not been dismissed.” 

(Motion to Alter, at ¶¶ 1, 2.) The Court disagreed, reasoning that plaintiff had failed to make an

adequate showing to justify reconsideration of the August 16 Order and that, in any event, the

Amended Complaint failed to state a § 1983 claim against Sheriff Hawsey because there was no

allegation of a causal connection between Sheriff Hawsey’s actions and the alleged constitutional

deprivation. Plaintiff’s Motion to Alter or Amend was denied via Order (doc. 18) dated September

14, 2005.

3 Deputy Greene responded to these aspects of the August 16 Order by filing his own

Motion to Alter, Amend or Vacate (doc. 11). As grounds for this request, Deputy Greene submitted

Judge Welch’s written order dated July 8, 2005 (a full month after the ruling in question), which he

claimed established (a) that res judicata applies because a final judgment was granted in his favor, and

(b) that he was acting within the scope of his discretionary authority at the time of these events, barring

relitigation of that issue. The Court rejected these arguments. In an Order (doc. 15) dated August 26,

2005, the undersigned found that the state court order was not new evidence and not a proper basis for

reconsideration, that the written state court order in no way undermined the undersigned’s reasons for

finding that res judicata does not apply, and that the state court order could not decisively resolve the

“discretionary function” test for qualified immunity eligibility because that legal question had not been

before Judge Welch.

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actions and the alleged deprivation.2 Furthermore, Anderson’s state-law claims against defendants in

their official and individual capacities were deemed foreclosed by principles of sovereign immunity.

The August 16 Order was less favorable to defendants on the res judicata and qualified

immunity grounds. On the former issue, the Court declined to construe Judge Welch’s June 8 ruling as

a final dismissal with prejudice, inasmuch as the state court had authorized Anderson to file new claims

against Deputy Greene arising from the same transaction or occurrence in the same breath that he

dismissed Anderson’s initial claims against Deputy Greene. On the latter issue, the Court found

substantial questions as to whether Deputy Greene was acting in the scope of his discretionary authority

at the time of the complained-of incidents, all of which precluded a finding of qualified immunity at this

nascent stage of the litigation.3

That said, the Court also determined that the Amended Complaint was impermissibly

ambiguous in delineating the form and nature of Anderson’s constitutional claim against Deputy Greene. 

For that reason, the August 16 Order directed Anderson to file a second amended complaint,

Case 1:05-cv-00393-WS-M Document 25 Filed 11/10/05 Page 3 of 17
4 Defendant repeatedly characterizes the Second Amended Complaint as violative of

these instructions. Anderson’s amended pleading does not present as much detail and clarity as one

might hope; however, with one exception discussed infra, it is in substantial compliance with the filing

requirements outlined in the August 16 Order.

5 The Second Amended Complaint does not allege whether Deputy Greene obtained

consent to enter plaintiff’s home; however, the initial Complaint repeatedly alleges that Deputy Greene

went into Anderson’s residence without permission. (Complaint, ¶¶ 10, 14, 18.) The Court assumes

for purpose of this Order that plaintiff stands by that factual allegation, and that its omission from the

Second Amended Complaint was a mere inadvertent oversight.

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identifying the particular right or rights that he alleges were violated by Deputy Greene, the constitutional

bases for such right(s), and the basic facts underlying each claim.4

C. The Second Amended Complaint.

On August 26, 2005, Anderson filed his Second Amended Complaint (doc. 14). That pleading

alleged that in September 2003 Deputy Greene “invaded the home of Plaintiff in Monroe County,

which is outside his Conecuh County jurisdiction.” (Id., ¶ 3.) Such “invasion” was allegedly performed

with no search warrant, no arrest warrant, no probable cause, and no hot pursuit. (Id., ¶¶ 4-6.)5

During the course of such invasion, it is alleged, Deputy Greene “assaulted the Plaintiff by striking him

with his hands,” then detained Anderson and forbade him from leaving the premises. (Id., ¶¶ 7-8.) The

Second Amended Complaint further alleges that Deputy Greene “ransacked and otherwise moved and

manipulated the Plaintiff’s property and illegally searched the home of the Plaintiff.” (Id., ¶ 9.) 

Anderson maintains that Deputy Greene’s course of conduct violated his Fourth, Fifth and Fourteenth

Amendment rights, including the right to be secure in his home, the right to due process of law and the

right to equal protection of the law; and that it further violated Alabama laws prohibiting assault and

battery, burglary, disorderly conduct, criminal mischief and false imprisonment. (Id., ¶¶ 10, 11.) 

Anderson alleges that Deputy Greene acted with knowledge that his conduct violated the law. (Id., ¶

12.)

Defendant responded to the Second Amended Complaint by filing another Motion to Dismiss,

which is now before the undersigned for disposition.

Case 1:05-cv-00393-WS-M Document 25 Filed 11/10/05 Page 4 of 17
6

In response to the Motion to Dismiss, Anderson argues that defendant is not entitled to

relief through defenses relating to Eleventh Amendment immunity, the intracorporate conspiracy

doctrine, Heck v. Humphrey, and sovereign immunity. (See Amended Response (doc. 23).) Because

defendant has not asserted any of these defenses as grounds for his Motion, the Court need not and

shall not explore their merits here. Also, the Court notes that Anderson’s response postulates that the

Motion to Dismiss is premature because “jurisdictional issues are intertwined with the merits.” (Id. at

2.) After careful review of plaintiff’s argument on this point, the Court finds no valid reason to defer

-5-

II. Legal Standard.

As has been explained in previous orders, on a motion to dismiss the Court must view the

complaint in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421-22, 23

L. Ed. 2d 404, 89 S. Ct. 1843 (1969). A motion to dismiss may be granted only where “it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him

to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Bradberry v.

Pinellas County, 789 F.2d 1513, 1515 (11th Cir. 1986). The rules of pleading require only that a

complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” 

Rule 8(a), Fed.R.Civ.P. Moreover, the Court must, “at this stage of the litigation, . . . accept

[plaintiff’s] allegations as true.” Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104

S. Ct. 2229 (1984); Stephens v. HHS, 901 F.2d 1571, 1573 (11th Cir. 1990); cf. South Florida

Water Management Dist. v. Montalvo, 84 F.3d 402, 409 n.10 (11th Cir. 1996) (conclusory

allegations and unwarranted deductions of fact are not deemed true on a motion to dismiss). The

Court’s inquiry at this stage focuses on whether the challenged pleadings “give the defendant fair notice

of what the plaintiff's claim is and the grounds upon which it rests.” Conley, 355 U.S. at 47. A plaintiff

must meet only an “exceedingly low” threshold to withstand a Rule 12(b)(6) motion. United States v.

Baxter Int’l, Inc., 345 F.3d 866, 881 (11th Cir. 2003).

III. Analysis.

Deputy Greene seeks dismissal of the Second Amended Complaint on the following five

grounds: (i) res judicata and collateral estoppel; (ii) inapplicability of the Fifth Amendment due process

clause; (iii) absence of facts to support the equal protection claim; (iv) failure to meet heightened

pleading standard for § 1983 action implicating qualified immunity; and (v) qualified immunity.6

Case 1:05-cv-00393-WS-M Document 25 Filed 11/10/05 Page 5 of 17
analysis of the legal sufficiency of the Second Amended Complaint until after the completion of

discovery. Here, any jurisdictional issues are not inextricably bound up with the merits and the

purported legal defects identified by defendant’s Motion can and should be resolved now, without

awaiting the discovery process. The timing of defendant’s Motion to Dismiss is appropriate under the

Federal Rules of Civil Procedure and the specific circumstances of this case. Accordingly, the Motion

to Dismiss is not premature, and it will be considered at this time.

7 At the risk of redundancy, the Court stresses that it parts company with Deputy Greene

as to the legal significance of Judge Welch authorizing Anderson to file an amended complaint

immediately after granting Deputy Greene’s motion for summary judgment. According to defendant,

the state court order authorizing the amendment was “clear error,” a legal nullity that may be discarded

without a second thought. (Defendant’s Brief (doc. 17), at 4.) The Court does not share the view that

this state court order may be casually overruled by a parallel federal court, particularly when a perfectly

logical explanation exists that would give effect to both orders. The question is whether Judge Welch

intended to grant a final judgment dismissing all claims against Deputy Greene. Because defendant

removed this action to federal court instead of seeking clarification in state court, we will never know

what Judge Welch’s thought processes were. Nonetheless, his act of green-lighting Anderson’s

attempt to file new claims against Deputy Greene immediately after dismissing the old claims is

compelling evidence that the state court did not intend to grant a final dismissal with prejudice in Deputy

Greene’s favor, but that he rather intended only to grant a dismissal with leave to amend. The Court is

not swayed by the written order signed by Judge Welch a month after the fact, particularly where such

order made no reference to the amendment.

8 To be clear, what Judge Welch’s written order characterized as “Findings of Fact” was

actually a recitation of facts in the summary judgment record construed in the light most favorable to the

nonmovant, Anderson. It does not appear that the state court made credibility determinations or set

forth binding, final factual determinations that a jury would have been obliged to accept or adopt at trial.

-6-

A. Res Judicata / Collateral Estoppel.

As a first line of attack, Deputy Greene rehashes his well-traveled res judicata argument. This

Court has already considered and rejected it twice. No constructive purpose would be served by

reiterating – for a third time – the bases for the Court’s determination that the doctrine of res judicata is

inapplicable here. For the reasons set forth in detail in the Orders dated August 16, 2005 and August

26, 2005, the Motion to Dismiss is denied insofar as it rests on principles of res judicata.7

Alternatively, defendant argues that collateral estoppel applies to certain facts found by the state

court and urges the Court to take those facts as established in ruling on the Motion. In particular, Judge

Welch’s Order of July 8, 2005, included the following potentially relevant findings of fact:8 (a) Deputy

Case 1:05-cv-00393-WS-M Document 25 Filed 11/10/05 Page 6 of 17
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Greene was employed as Chief Investigator of the Conecuh County Sheriff’s Department and was not

employed by the Monroe County Sheriff’s Department; (b) Deputy Greene received information from

Anderson’s brother (an inmate in the Conecuh County Jail) that Anderson had purchased stolen items

from a person named “Possum”; (c) Deputy Greene and a colleague traveled in a Sheriff’s Department

vehicle to Anderson’s home in Monroe County; (d) Deputy Greene neither notified nor obtained

permission from the Monroe County Sheriff’s Department for this foray into Monroe County; (e)

Deputy Greene was on duty at the time; and (f) Deputy Greene entered Anderson’s home, took photos

of his property without his consent, checked a rifle to see if it had been stolen, and spoke to Anderson

about the elusive Possum. Defendant asserts that these facts must be accepted as true at this time

because of collateral estoppel.

“Collateral estoppel or issue preclusion forecloses relitigation of an issue of fact or law that has

been litigated and decided in a prior suit.” CSX Transp., Inc. v. Brotherhood of Maintenance of

Way Employees, 327 F.3d 1309, 1317 (11th Cir. 2003). “To successfully invoke collateral estoppel,

a party must demonstrate that: (1) the issue at stake in a pending action is identical to the one involved

in the prior litigation; (2) the issue must have been actually litigated in the prior suit; (3) the determination

of the issue in the prior litigation must have been a critical and necessary part of the judgment in the

action; and (4) the party against whom the earlier decision is asserted must have had a full and fair

opportunity to litigate the issue in the earlier proceeding.” Barger v. City of Cartersville, Ga., 348

F.3d 1289, 1293 (11th Cir. 2003). Although he eschews analysis and application of each factor,

Deputy Greene argues that these elements are satisfied, inasmuch as the foregoing facts were fully and

fairly litigated in the state court proceedings, and were actually decided by Judge Welch on summary

judgment.

Anderson’s opposition brief is largely silent on the applicability of collateral estoppel in this

case. At most, he contends that collateral estoppel principles do not apply to Judge Welch’s factual

findings because that decision was not a “decision on the merits of the claims.” (Amended Response, at

17-21.) Anderson offers no authority for the novel proposition that an order granting summary

judgment on immunity grounds is not considered “on the merits” for preclusion purposes. Even if he

Case 1:05-cv-00393-WS-M Document 25 Filed 11/10/05 Page 7 of 17
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had, a ruling on the merits is not a prerequisite to application of collateral estoppel. Rather, where an

issue has been fully and finally decided, the doctrine of collateral estoppel applies, irrespective of

whether that decision has been packaged in a ruling on the merits.

There may well be valid counterarguments to Deputy Greene’s invocation of collateral estoppel

with regard to the “Findings of Fact” set forth in Judge Welch’s Order. But plaintiff has not identified

them. This Court will not articulate plaintiff’s position for him. See Pinto v. Universidad De Puerto

Rico, 895 F.2d 18, 19 (1st Cir. 1990) ( “[T]he court is under no duty to exercise imagination and

conjure what a plaintiff might have alleged, but did not, and do counsel's work for him or her.”). In the

absence of any meritorious objection by Anderson to the use of collateral estoppel for the findings of

fact contained in Judge Welch’s Order, the Court will accept those factual findings as true for purposes

of this Order.

B. Applicability of the Fifth Amendment Due Process Clause.

Defendant’s next argument is that plaintiff’s claims should be dismissed to the extent that

Anderson alleges violations of his Fifth Amendment due process rights. In this regard, defendant

asserts that the Fifth Amendment’s due process clause does not extend to state and local governments,

but is instead confined to the federal government. (See Defendant’s Brief, at 6.) If Anderson were

seeking to bring a separate, distinct Fifth Amendment due process claim against Deputy Greene, then

defendant’s position would have merit. See Riley v. Camp, 130 F.3d 958, 972 n.19 (11th Cir. 1997)

(“The Fifth Amendment obviously does not apply here--the acts complained of were committed by

state rather than federal officials.”); Dowdell v. Chapman, 930 F. Supp. 533, 542 (M.D. Ala. 1996)

(“The Fifth Amendment's Due Process Clause applies only to the federal government.”). However, a

fair construction of this pleading reveals that Anderson is not bringing a separate Fifth Amendment due

process claim. To the contrary, the Second Amended Complaint invokes both the Fifth and the

Fourteenth Amendments. Inasmuch as many aspects of the Fifth Amendment apply to state and local

governments through the Fourteenth Amendment, the Court perceives no improprieties in plaintiff’s use

of the common pleading convention of reciting both amendments. See generally Penn Cent. Transp.

Co. v. City of New York, 438 U.S. 104, 121-23, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (applying

Case 1:05-cv-00393-WS-M Document 25 Filed 11/10/05 Page 8 of 17
9 Deputy Greene assumes that Anderson’s equal protection claim is predicated on the

theory that Anderson “was treated in a racially discriminatory manner,” and criticizes the Second

Amended Complaint for failing to allege the race of the parties. (Defendant’s Brief, at 7.) But the

Second Amended Complaint nowhere suggests that Anderson’s equal protection claim hinges on

racially disparate treatment, and Olech confirms that equal protection claims are not confined to racebased claims. As such, there was nothing inherently defective in Anderson’s failure to plead his race.

-9-

the Fifth Amendment to the States through the Fourteenth Amendment); Corn v. City of Lauderdale

Lakes, 95 F.3d 1066, 1069 n.2 (11th Cir. 1996) (“The Fifth Amendment's protections apply to the

states through the Fourteenth Amendment.”).

There being no suggestion in the Second Amended Complaint that Anderson is endeavoring to

bring a distinct Fifth Amendment due process claim against Deputy Greene, and it not being improper

for Anderson to recite the Fifth and Fourteenth Amendments in tandem, defendant’s Fifth Amendment

objection is unavailing. No Rule 12(b)(6) relief is warranted on this basis.

C. Equal Protection Claim.

In general, to establish an equal protection claim, a plaintiff must show that he is similarly

situated to others who received more favorable treatment, and that his adverse treatment was based on

some constitutionally protected interest such as race. See Jones v. Ray, 279 F.3d 944, 947 (11th Cir.

2001); see also Henniger v. Pinellas County, 7 F. Supp.2d 1334, 1339 (M.D. Fla. 1998) (finding

that elements of equal protection claim include differential treatment from others similarly situated, and

intentional discrimination). That said, the Supreme Court has recognized “successful equal protection

claims brought by a "class of one," where the plaintiff alleges that she has been intentionally treated

differently from others similarly situated and that there is no rational basis for the difference in

treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d

1060 (2000); but see Hicks v. Jackson County Com'n, 374 F. Supp.2d 1084, 1094 (N.D. Ala.

2005) (advocating caution in applying Olech because “unless carefully circumscribed, the concept of a

class-of-one equal protection claim could effectively provide a federal cause of action for review of

almost every executive and administrative decision made by state actors”).9 In Olech’s wake, then, a

plaintiff raising an equal protection claim must still show intentional differences in treatment from others

Case 1:05-cv-00393-WS-M Document 25 Filed 11/10/05 Page 9 of 17
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similarly situated to him.

Plaintiff has not responded to the equal protection aspect of the Motion to Dismiss. Moreover,

review of the Second Amended Complaint reveals that his equal protection allegations are plainly

lacking. Anderson has not indicated that anyone is similarly situated to him, much less identified those

persons. Nor has he explained the manner in which he believes he was subjected to disparate

treatment (e.g., because of his race, on an Olech-type basis, etc.). As a result, a defendant reading the

Second Amended Complaint is afforded no reasonable information about the theory animating the

equal protection claim, or even its factual basis. This result runs directly counter to basic pleading

requirements, as well as to this Court’s instructions to Anderson in preparing and submitting his Second

Amended Complaint. In light of these glaring inadequacies, and in the absence of any response by

Anderson to defendant’s challenge to the equal protection claim, the Motion to Dismiss is granted as

to that cause of action. See generally Jones, 279 F.3d at 947 (dismissing equal protection claim when

even liberal interpretation of complaint did not reveal any factual basis for equal protection claim); GJR

Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1367-69 (dismissing equal

protection claims where complaint failed to allege sufficiently that defendant treated plaintiff differently

than similarly situated persons). Plaintiff’s Fourteenth Amendment equal protection claim is therefore

dismissed.

D. Heightened Pleading Requirement.

As a fourth basis for the Motion, Deputy Greene maintains that the Second Amended

Complaint flunks the applicable heightened pleading threshold. Under clear Eleventh Circuit precedent,

a heightened pleading requirement attaches to § 1983 claims involving qualified immunity, such that “a §

1983 plaintiff [must] allege with some specificity the facts which make out its claim. ... Some factual

detail in the pleadings is necessary to the adjudication of § 1983 claims.” GJR, 132 F.3d at 1367

(citations omitted); see also Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003) (citing with

approval authority from other jurisdictions holding that complaint must include specific, non-conclusory

allegations of fact enabling district court to determine that those facts, if proved, will overcome defense

of qualified immunity); but cf. Swann v. Southern Health Partners, Inc., 388 F.3d 834, 838 (11th

Case 1:05-cv-00393-WS-M Document 25 Filed 11/10/05 Page 10 of 17
10 To accept defendant’s position on this point would logically result in an order dismissing

plaintiff’s claims with leave to replead. If the parties’ previous litigation tactics in this matter are any

guide, Anderson would file a third amended complaint, Deputy Greene would file another motion to

dismiss, the parties would engage in another round of briefing, and this Court would once again be

asked to rule on the sufficiency of Anderson’s pleading. This being the fourth iteration of briefing and

ruling on motions to dismiss in this case, the Court has no appetite to invite a fifth, and suspects that

doing so would not serve the best interests of any litigant herein.

-11-

Cir. 2004) (rejecting notion that a heightened pleading standard in § 1983 actions applies where

qualified immunity is not in play as a defense).

Upon review of the Second Amended Complaint, the Court is satisfied that it goes beyond

“mere conclusory notice pleading” and that it alleges “with some specificity the facts which make out

[Anderson’s] claim,” as required by Eleventh Circuit precedent. Gonzalez, 325 F.3d at 1235; GJR,

132 F.3d at 1367. Although Deputy Greene is correct that Anderson has not pleaded the factual

predicate of his claims with as much detail as he possibly could, that is not the governing standard. 

Instead, the inquiry is whether the factual allegations set forth in the Second Amended Complaint are

sufficiently specific to facilitate a determination of whether those facts, if proved, can overcome a

defense of qualified immunity. The Court finds that they are. (See § III.E.2., infra.) Accordingly,

defendant’s Motion to Dismiss for failure to satisfy heightened pleading requirements is denied.

10

E. Qualified Immunity.

Where, as here, a government official is sued in his individual capacity for money damages

based on alleged civil rights violations, he may posit an affirmative defense of qualified immunity. See

Swint v. City of Wadley, Ala., 51 F.3d 988, 994 (11th Cir. 1995). The Supreme Court has held “that

government officials performing discretionary functions generally are shielded from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.

2727, 2738, 73 L. Ed.2d 396 (1982). As such, qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106

S.Ct. 1092, 89 L.Ed.2d 271 (1986).

Case 1:05-cv-00393-WS-M Document 25 Filed 11/10/05 Page 11 of 17
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1. The “Discretionary Function” Element.

“[I]n order to receive qualified immunity, the public actor must prove that he was acting within

the scope of his discretionary authority when the allegedly wrongful acts occurred.” Kesinger ex rel.

Estate of Kesinger v. Herrington, 381 F.3d 1243, 1248 (11th Cir. 2004). This burden rests with the

public official, and failure to satisfy it negates the qualified immunity defense. See Holloman ex rel.

Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004) (explaining that if defendants cannot

show that they were engaged in a discretionary function, they are ineligible for qualified immunity). In

assessing whether an official was engaged in a discretionary function, “[w]e ask whether the

government employee was (a) pursuing a legitimate job-related function (that is, pursuing a job-related

goal), (b) through means that were within his power to utilize.” Id. at 1265. 

In its Orders dated August 16, 2005 and August 26, 2005, the Court has twice rejected

Deputy Greene’s attempts to satisfy the “discretionary function” threshold. All that has changed this

time around is that defendant has successfully argued that principles of collateral estoppel render Judge

Welch’s findings of fact established for purposes of this analysis. The relevant facts are that Deputy

Greene, while on duty for the Conecuh County Sheriff’s Department, traveled in a Conecuh County

Sheriff’s Department patrol car from his duty station in Conecuh County to Anderson’s home in

Monroe County for the purpose of investigating thefts that had occurred in Conecuh County, all without

notifying or requesting the assistance of Monroe County authorities. These facts may demonstrate that

Deputy Greene was pursuing a legitimate job-related function, but they plainly do not show that he did

so through means that were within his power to utilize. In particular, defendant has made no legal

showing that he was empowered to travel into a neighboring county to investigate alleged crimes within

Conecuh County. Although neither side has briefed this issue to any meaningful degree, the law

appears unfavorable to Deputy Greene.

Pursuant to Ala. Code § 36-22-3(4), Alabama sheriffs have the duty “in their respective

counties, by themselves or deputies, to ferret out crime, to apprehend and arrest criminals and,

insofar as within their power, to secure evidence of crimes in their counties.” Id. (emphasis

added). A plain reading of the statute suggests that the authority of sheriffs – and hence of the deputies

Case 1:05-cv-00393-WS-M Document 25 Filed 11/10/05 Page 12 of 17
11 To the contrary, authorities in several other states have reached similar conclusions

regarding the geographic reach and scope of a sheriff’s authority in their jurisdictions. See Lewis v.

State, 15 S.W.3d 250, 255 (Tex.App.-Texarkana 2000) (“Generally, both common law and statutory

law limit a peace officer's authority to his own geographical jurisdiction.”); Hayes v. Parkem Indus.

Services, Inc., 598 So.2d 1194, 1197 (La.App. 3 Cir. 1992) (because “a sheriff's jurisdiction and

authority to act is limited to his parish, it stands to reason that he has no jurisdiction or authority to act

outside his parish”); De Salvatore v. State, 163 A.2d 244, 248 (Del.Supr. 1960) (“in the absence of

statutory or constitutional authority, peace officers, including constables, cannot act outside of the

territorial limits of the body from which they derive their authority”); Kapson v. Kubath, 165 F. Supp.

542, 546 (W.D. Mich. 1958) (“It is a well-established rule that the power and authority of a county

sheriff are limited to the confines of his county and that when he exceeds that jurisdiction he is acting as

a private citizen.”); State ex rel. Penrod v. French, 51 N.E.2d 858, 863 (Ind. 1943) (“It is true that in

the absence of statute the power of a sheriff and his deputy is limited to their county.”).

-13-

who serve under them – to ferret out crime and secure evidence is confined to their respective counties. 

Defendant has presented no authority or argument that might support any other construction of § 36-

22-3(4).11 Moreover, in the arrest context, the Alabama legislature has seen fit to carve out specific

narrow exceptions to the general geographic limitation on sheriff’s deputies’ authority. See Ala. Code §

15-10-11 (providing that “[a]ny lawful officer, having a warrant of arrest issued by a municipal court to

execute, may pursue the defendant into another county and, on obtaining a signed endorsement on the

warrant by an officer of that county ... may summon persons to assist him in making the arrest, and

exercise the same authority as in his own county”); Raughley v. State, 398 So.2d 414, 415

(Ala.Crim.App. 1981) (recognizing “general rule restricting a deputy's arrest authority to his own

county,” subject to certain statutory exceptions); Boswell v. State, 19 So.2d 94, 95 (Ala.App. 1944)

(“In the absence of a statute the general rule is that a peace officer when acting without a warrant may

arrest in his official capacity only within the limits of the geographical or political sub-division of the

State of which he is an officer.”). The Court is aware of no corresponding statutory exceptions for

investigation of crimes in neighboring counties. For that reason, on the evidence and argument

presented at this time, the Court cannot find that Deputy Greene was performing job-related functions

through means that were within his power to utilize during his sojourn into Monroe County in search of

Case 1:05-cv-00393-WS-M Document 25 Filed 11/10/05 Page 13 of 17
12 In reaching this conclusion, the Court considers and rejects two potential arguments

from defendant. First, to the extent that Deputy Greene suggests that Judge Welch’s Order shows that

he was engaged in a discretionary function, such a contention must fail. As the Court has explained in

previous orders, Judge Welch was examining whether Deputy Greene was carrying out his duties as a

Conecuh County Sheriff’s Deputy for purposes of evaluating a sovereign immunity defense. He did not

have occasion to apply the “discretionary function” test of qualified immunity. Those two questions are

very different, and a determination in defendant’s favor as to the former neither implies nor necessitates

an analogous result as to the latter. Second, the Court cannot agree with defendant’s contention that

the discretionary function test is satisfied because plaintiff has not presented enough evidence to satisfy

the heightened pleading standard. (Defendant’s Brief, at 11-12.) The Second Amended Complaint,

coupled with the factual findings credited from Judge Welch’s ruling, provide an ample factual

backdrop to assess whether Deputy Greene was engaged in a discretionary function. The problem

facing the Court is not insufficient factual development by plaintiff, but rather insufficient legal

development by defendant of authorities and arguments tending to show that a sheriff’s deputy’s

investigatory activities outside of his territorial jurisdiction can satisfy the two-pronged discretionary

function threshold.

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stolen property.12 This shortcoming implies that Deputy Greene is unable to show that he was

performing a discretionary function, and that he is therefore unable to satisfy the minimum threshold for

eligibility for qualified immunity.

2. The Clearly Established Element.

Even assuming that Deputy Greene had made an adequate showing on the discretionary

function criterion, his bid for qualified immunity would still be denied at this time. “Once the official has

established that he was engaged in a discretionary function, the plaintiff bears the burden of

demonstrating that the official is not entitled to qualified immunity.” Crosby v. Monroe County, 394

F.3d 1328, 1332 (11th Cir. 2004). In this context, courts examine whether the defendant’s conduct

“violated a clearly established constitutional right” of which a “reasonable government official would

have been aware.” Chesser v. Sparks, 248 F.3d 1117, 1122 (11th Cir. 2001); see also Bennett v.

Hendrix, 423 F.3d 1247 (11th Cir. 2005) (official performing discretionary function is barred from

qualified immunity if evidence in light most favorable to plaintiff shows that official’s conduct violated

clearly established constitutional right). “A constitutional right is clearly established if controlling

precedent has recognized the right in a concrete and factually defined context.” Chesser, 248 F.3d at

1122 (citation omitted); see also Akins v. Fulton County, Ga., 420 F.3d 1293, 1305 (11th Cir.

Case 1:05-cv-00393-WS-M Document 25 Filed 11/10/05 Page 14 of 17
13 Nothing in Judge Welch’s findings or the Second Amended Complaint suggests that

Deputy Greene knew or had reason to believe that there was stolen property in Anderson’s house,

much less stolen firearms. At most, the record shows that an incarcerated informant (whose reliability is

not established) told Deputy Greene that Anderson had purchased stolen items from Possum. In its

current state, the record does not reveal that Deputy Greene had any information or any reason to

believe that Anderson was maintaining stolen items in his home. For example, there is no indication that

the informant notified Deputy Greene that he had recently observed such stolen items in Anderson’s

home. The arguable probable cause threshold may have existed, but the fragmentary record at this

very early stage of the lawsuit precludes any findings on that issue without further factual development

through discovery.

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2005) (“A right is clearly established if, in light of already-existing law, the unlawfulness of the conduct

is apparent.”).

The conduct of which Deputy Greene is accused in the Second Amended Complaint plainly

implicates clearly established constitutional rights. Anderson alleges that Deputy Greene “invaded” his

home without probable cause, without a search warrant, without an arrest warrant, and in the absence

of exigent circumstances. Anderson further alleges that Deputy Greene physically struck him, detained

him, and “ransacked” his home. Given the exhaustive Fourth Amendment jurisprudence governing

searches and seizures, it borders on absurdity for Deputy Greene to assert that he lacked “fair warning”

that the conduct of which he is accused is unlawful. See, e.g., United States v. Santa, 236 F.3d 662,

668 (11th Cir. 2000) (“It is a 'basic principle of Fourth Amendment law' that searches and seizures

inside a home without a warrant are presumptively unreasonable.”); Holmes v. Kucynda, 321 F.3d

1069, 1078 (11th Cir. 2003) (“A warrantless entry into a suspect's home is presumed to be an

unreasonable violation of the Fourth Amendment.”).

Deputy Greene attempts to rebut such abundant black-letter authority by insisting that there

was “an arguable reasonable suspicion to approach and question the Plaintiff and examine his property”

because a firearm was involved and there was some reason to believe that plaintiff might have

purchased stolen items. (Defendant’s Brief, at 15.) Certainly, “[t]o receive qualified immunity

protection, an officer need not have actual probable cause but only 'arguable probable cause.'” 

Holmes, 321 F.3d at 1079 (citations omitted). But the record before the Court does not reveal any

arguable probable cause to “invade” plaintiff’s home.13 Even if it did, contrary to defendant’s

Case 1:05-cv-00393-WS-M Document 25 Filed 11/10/05 Page 15 of 17
14 Likewise, the Court cannot conclude on this record that Deputy Greene’s alleged acts

of “assault[ing] the Plaintiff by striking him with his hands” and of detaining Anderson did not violate

clearly established law. On the former point, defendant argues that the contact was de minimis. 

Without further development, the record cannot support this characterization. Even if could, the case

cited by defendant, Nolin v. Isbell, 207 F.3d 1253 (11th Cir. 2000), does not announce a blanket rule

that some moderate amount of force is always insufficient to trigger an actionable constitutional claim; to

the contrary, Nolin explicitly recognizes cases “that involve[] arrests without probable cause in which

any use of force was inappropriate.” Id. at 1258 (emphasis added). Without more information as

to the circumstances under which physical contact was made, the Court cannot agree that Deputy

Greene did not violate any clearly established constitutional norms by striking Anderson. As to the

alleged detention, Deputy Greene argues that it was permissible as a Terry stop. But a Terry stop is

limited to “a brief, investigatory stop when the officer has a reasonable, articulable suspicion that

criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570

(2000). On the record before the Court, there is no indication that Deputy Greene harbored any

reasonable suspicion that Anderson had committed or was about to engage in any criminal activity. At

most, Deputy Greene had received (perhaps unreliable, stale and/or speculative) information from an

incarcerated individual that Anderson had purchased stolen property. That, in and of itself, is not a

crime. See Ala. Code § 13A-8-16 (a person commits crime of receiving stolen property only if he

does so “knowing that it has been stolen or having reasonable grounds to believe it was stolen”). On

this record, there is no basis for a conclusion that Deputy Greene had any reason to think that

Anderson had engaged in any criminal conduct; therefore, there is no record basis for concluding that

he was justified in conducting a Terry stop. There are also questions as to whether the duration and

circumstances of the stop were within the borders of Terry. Again, on this record, the Court cannot

say that Deputy Greene’s conduct as alleged in the Second Amended Complaint did not run afoul of

clearly established law.

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suggestion the law is clearly established that probable cause, without more, is not a sufficient basis for a

warrantless search of a home. The law in this Circuit has long been that a warrantless search of a home

is permissible only in the presence of “both probable cause and exigent circumstances.” United States

v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991); see also United States v. Forker, 928 F.2d 365,

370 n.2 (11th Cir. 1991) (“It is now clear that warrantless arrests in a suspect's home may be effected

only under exigent circumstances.”). Defendant has offered not a whiff of evidence of the requisite

exigent circumstances that would have needed to accompany his arguable probable cause for the

search of Anderson’s home to be compliant with clearly established law.14

In short, the Court readily finds that the allegations of the Second Amended Complaint, if

proven, could establish that Deputy Greene’s conduct violated clearly established law. Dismissing this

Case 1:05-cv-00393-WS-M Document 25 Filed 11/10/05 Page 16 of 17
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case on the basis of qualified immunity is therefore manifestly inappropriate at this time.

IV. Conclusion.

For all of the foregoing reasons, the Court finds that the Motion to Dismiss (doc. 16) is due to

be, and the same hereby is, granted in part and denied in part. The Motion is granted as to

plaintiff’s Fourteenth Amendment equal protection claim, and such claim is dismissed without

prejudice on grounds that it was inadequately pleaded. In all other respects, the Motion is denied.

DONE and ORDERED this 10th day of November, 2005.

s/ WILLIAM H. STEELE 

UNITED STATES DISTRICT JUDGE 

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