IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RICKIE LEE CLOY, )

Plaintiff, )

)

v. ) CIVIL ACTION NO. 12-00718-KD-N

)

TRACY BOUTWELL, HUEY “HOSS” )

MACK, and MATTHEW SEYMORE, )

Defendants. )

REPORT AND RECOMMENDATION

Plaintiff Rickie Lee Cloy (“Cloy”), proceeding pro se and in forma pauperis

(see Doc. 6), has brought this action asserting claims under 42 U.S.C. § 1983.1

Pursuant to SD ALA Local Rule 72.2(c)(4), this matter has been referred to the 

undersigned United States Magistrate Judge for entry of a report and 

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B)-(C) and Federal Rule of Civil 

Procedure 72(b).

I. Procedural History

Cloy’s second amended complaint, dated June 11, 2013 (Doc. 21), as 

supplemented (Doc. 25), is the operative pleading in this action (see Doc. 18; Doc. 28 

at 1; Doc. 32 at 1; Doc. 38 at 1) 2 and asserts claims against Defendants Huey “Hoss”

 1 Cloy was a prisoner in the custody of the Alabama Department of Corrections when he 

initiated this lawsuit. However, Cloy has since been released from custody. See (Doc. 50; 

Doc. 21 at 9 (stating Cloy’s “expected end of sentence” date to be May 17, 2014)); 

http://www.doc.state.al.us/InmateInfo.aspx (last visited Nov. 20, 2014).

2 In ordering Cloy to file a second amended complaint, the undersigned expressly informed 

him that his “second amended complaint will supercede [his] prior complaints (docs. 1,4)” 

and,“therefore,[ he] shall not rely on them.” (Doc. 18 at 1). See also Pintando v. MiamiCase 1:12-cv-00718-KD-N Document 52 Filed 12/23/14 Page 1 of 28
2

Mack, Sheriff of Baldwin County, Alabama (“Sheriff Mack”); Matthew Seymore, a 

Baldwin County Assistant District Attorney (“Seymore”); and Tracey Boutwell, a

staff member of the Baldwin County Circuit Court Clerk’s Office (“Boutwell”).3 The

causes of action in the operative complaint arise from events occurring in 2012 in

Baldwin County, Alabama, in which Cloy was arrested and set to prison for a 

probation violation.

Sheriff Mack was provided notice of this lawsuit (see Doc. 34) and has filed a 

Special Report (Doc. 40) and Answer (Doc. 41), which have been converted to a 

Motion for Summary Judgment under Federal Rule of Civil Procedure 56 by order 

of the undersigned (Doc. 46). Cloy filed a response (Doc. 44) to the Special Report.

Three attempts were made to send notice of this lawsuit to Seymore and 

Boutwell. (See Docs. 28, 29, 31, 32, 33, 35, 38, 39, 45). All three attempts to provide 

notice to Seymore have been unsuccessful, with the Baldwin County District 

Attorney’s Office informing the Court that he is no longer employed there (see Doc. 

45). Though the third notice sent to Boutwell (Doc. 39) has not been returned as 

undeliverable, as the previous two (Docs. 31, 35) were, Boutwell “has not 

 

Dade Hous. Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (per curiam) (“As a general 

matter, ‘[a]n amended pleading supersedes the former pleading; the original pleading is 

abandoned by the amendment, and is no longer a part of the pleader's averments against 

his adversary.’ ” (quoting Dresdner Bank AG, Dresdner Bank AG in Hamburg v. M/V 

OLYMPIA VOYAGER, 463 F.3d 1210, 1215 (11th Cir. 2006) (citation and quotation 

omitted)); Fritz v. Standard Sec. Life Ins. Co. of N.Y., 676 F.2d 1356, 1358 (11th Cir. 1982) 

(“Under the Federal Rules, an amended complaint supersedes the original complaint.”). 

Accordingly, any claims asserted in Cloy’s previous complaints but not reasserted in the 

operative complaint are deemed abandoned.

3 Boutwell was initially identified as “Bouckuey” in this action, but her name has since been 

corrected. (See Doc. 38 at 1 n.1).

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acknowledged receipt of Cloy’s complaint or waived service of summons.” (Doc. 46 

at 2 n.1).

II. Summary Judgment Standards

In analyzing the propriety of a motion for summary judgment, the Court 

begins with these basic principles. The Federal Rules of Civil Procedure grant this 

Court authority under Rule 56 to render “judgment as a matter of law” to a party 

who moves for summary judgment. Federal Rule of Civil Procedure 56(a) provides 

that “[t]he court shall grant summary judgment if the movant shows that there is 

no genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.” In Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 

91 L .Ed. 2d 265 (1986), the Supreme Court held that summary judgment is proper 

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

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

material fact....” However, all of the evidence and factual inferences reasonably 

drawn from the evidence must be viewed in the light most favorable to the 

nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 

L. Ed. 2d 142 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th 

Cir. 2004).

Federal Rule of Civil Procedure 56(e) further provides:

If a party fails to properly support an assertion of fact or fails to 

properly address another party's assertion of fact as required by Rule 

56(c), the court may:

(1) give an opportunity to properly support or address the fact;

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(2) consider the fact undisputed for purposes of the motion;

(3) grant summary judgment if the motion and supporting materials—

including the facts considered undisputed—show that the movant is 

entitled to it; or

(4) issue any other appropriate order.

The party seeking summary judgment “always bears the initial responsibility 

of informing the district court of the basis for its motion, and identifying those 

portions of the ‘pleadings, depositions, answers to interrogatories, and admissions 

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

absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. The movant 

can meet this burden by presenting evidence showing there is no dispute of material 

fact or by pointing out to the district court that the nonmoving party has failed to 

present evidence in support of some element of its case on which it bears the 

ultimate burden of proof. Id. at 322–25.

Once the moving party has satisfied its responsibility, the burden shifts to 

the non-movant to show the existence of a genuine issue of material fact. See

Stabler v. Fla. Van Lines, Inc., Civil Action No. 11–0103–WS–N, 2012 WL 32660, at 

*5 (S.D. Ala. Jan.6, 2012) (citing Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 

(11th Cir. 1991)). Summary judgment is proper when “a party fails to make a 

showing sufficient to establish the existence of an essential element of that party's 

case.” McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004) (citations and 

internal quotation marks omitted). “[T]here is no issue for trial unless there is 

sufficient evidence favoring the nonmoving party for a jury to return a verdict for 

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that party.... If the evidence is merely colorable, ... or is not significantly probative, 

... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 249–50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (internal citations omitted). 

“After the nonmoving party has responded to the motion for summary judgment, 

the court must grant summary judgment if there is no genuine issue of material fact 

and the moving party is entitled to judgment as a matter of law.” AGSouth 

Genetics, LLC v. Cunningham, No. CA 09–745–C, 2011 WL 1833016, at *2 (S.D. 

Ala. May 13, 2011). “ ‘An issue of fact is “material” if, under the applicable 

substantive law, it might affect the outcome of the case. An issue of fact is “genuine” 

if the record taken as a whole could lead a rational trier of fact to find for the 

nonmoving party.’ ” Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014) 

(quoting Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir. 2004) 

(citations omitted)).

“A document filed pro se is to be liberally construed, and a pro se complaint, 

however inartfully pleaded, must be held to less stringent standards than formal 

pleadings drafted by lawyers...” E.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007) 

(citation and quotations omitted). Nevertheless, “a court may not ‘serve as de facto 

counsel for a party’ or ‘rewrite an otherwise deficient pleading in order to sustain an 

action.’ ” Muhammad v. Bethel, 430 F. App'x 750, 752 (11th Cir. 2011) (quoting 

GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), 

overruled on other grounds, see Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010)). 

Additionally, “[t]here is no burden upon the district court to distill every potential 

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argument that could be made based upon the materials before it on summary 

judgment. Rather, the onus is upon the parties to formulate arguments; grounds 

alleged in the complaint but not relied upon in summary judgment are deemed 

abandoned.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 

1995) (en banc) (internal citation omitted). Accord, e.g., Gennusa v. Canova, 748 

F.3d 1103, 1116 (11th Cir. 2014).

III. Determination of Facts4

On May 13, 2011, in the criminal action State of Alabama v. Cloy Ricky Lee, 

Case # CC 2007 000958.00, Baldwin County Circuit Judge James Reid issued a writ 

for Cloy’s arrest, or bench warrant, for the purpose of conducting probation 

revocation proceedings. (Doc. 40-1 at 2). On February 17, 2012, Boutwell, on behalf 

of the Baldwin County Circuit Court Clerk, issued writs of arrest for Cloy upon the 

return of an indictment against Cloy by the Grand Jury of Baldwin County charging 

Burglary 1st Degree (Case # GJ 2012 020360.00) and Robbery 1st (Case # GJ 2012 

020361.00) with bond set at $50,000.00. (Doc. 40-2 at 4-5). Cloy was arrested by 

the Gulf Coast Regional Fugitive Task Force on May 2, 2012, pursuant to the two 

February 17, 2012 warrants and the probation violation (id. at 6; Doc. 40-3 at 3, ¶ 4) 

and was booked into the Baldwin County Corrections Center the next day (Doc. 40-2

at 7; Doc. 40-3 at 3, ¶ 5). After Cloy’s booking, Judge Reid’s bench warrant was 

executed by a member of Sheriff Mack’s staff that same day. (Doc. 40-1 at 3; Doc. 

40-3 at 3, ¶ 7). Confirmation was also received that day that Cloy had active arrest 

 4 The undersigned has made this “determination of facts” by “review[ing] the record, and all 

its inferences, in the light most favorable to [Cloy,] the nonmoving party.” E.g., Benson v. 

Tocco, Inc., 113 F.3d 1203, 1207 (11th Cir. 1997).

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warrants issued by the police departments of Gulf Shores and Foley, Alabama. 

(Doc. 40-2 at 8-9).

Judge Reid’s executed bench warrant was filed with Baldwin County Circuit 

Court Clerk on May 7, 2012. (Doc. 40-1 at 3). On May 9, 2012, Judge Reid set 

Cloy’s case for a probation revocation hearing on May 24, 2014. (Doc. 40-1 at 4). On 

May 17, 2012, Judge Reid set Cloy’s bond at $20,000, “to be approved by the 

Sheriff.” (Doc. 40-2 at 10). On May 31, 2012, Judge Reid entered an order (dated 

May 24, 2012) in Cloy’s criminal case stating as follows:

The defendant and counsel and counsel for the State of Alabama 

appeared in open court on a probation hearing in the above captioned 

case. The defendant having been charged with violating the terms and 

conditions of his probation, to wit:

1) Failure to Report;

2) Failure to Pay Supervision Fees;

3) Failure to Pay Court Ordered Monies;

and defendant having confessed to the charges, the Court adjudicated 

the defendant guilty of violating the terms and conditions of probation 

and ORDERS that the defendant’s probation be revoked. It is 

FURTHER ORDERED that the defendant be remanded to eh [sic] 

Alabama Department of Corrections to serve the balance of his 

sentence.

(Doc. 40-1 at 5). 

That order also taxed costs of the proceedings against Cloy and ordered him 

to reimburse the State of Alabama $400.00 for his appointed counsel. (Id.).

Cloy filed pro se a notice of appeal of his probation revocation (id. at 6), was 

appointed counsel on appeal, and was denied an appeal bond (id. at 7). However, 

Cloy later filed pro se a motion to voluntarily dismiss his appeal, stating he 

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“believe[d] it would be in [his] best intress [sic] to E.O.S. [his] sentence.” (Id. at 17). 

Pursuant to Cloy’s motion (received by the court on June 20, 2012), the Alabama 

Court of Criminal Appeals dismissed his appeal and entered its Certificate of 

Judgment on July 9, 2012. (Id. at 19-20).

On July 5, 2012, Cloy was released from the Baldwin County Corrections 

Center into the custody of the Alabama Department of Corrections. (Doc. 40-2 at 

11-13; Doc. 40-3 at 3, ¶ 5). In November 1, 2012, Cloy filed pro se two letter motions 

with the Baldwin County Circuit Court to be allowed to participate in the 

“Community Corrections Program – Back in Diversion.” (Doc. 40-1 at 21-25). The 

circuit court denied both motions on December 12, 2012. (Id. at 26-27).

In his operative complaint (Doc. 21),5 Cloy “admits his probation had been 

violated before the arrest, for failure to report which is a technical violation...” 

However, he claims he “was falsely arrested[;]” that he “was sent back to prison

before ever going to court[;]” that “evidence was manufactured against” him; that 

“the Sheriff and district attorney provided no arrest warrant, no indictment[;]” and 

that “the state provided absolutely no evidence to file a charge[,]” “falsified 

 5 Cloy’s operative complaint is signed and dated by him and states: “By my signature below, 

I swear or affirm under penalty of perjury that the facts set out in this complaint are true 

and correct.” (Doc. 21 at 10). Though the Complaint is not notarized, it is in substantial 

compliance with 28 U.S.C. § 1746 and thus constitutes an unsworn declaration under 

penalty of perjury that may be considered as evidence for purposes of summary judgment. 

See Perry v. Thompson, 786 F.2d 1093, 1095 (11th Cir. 1986) (per curiam) (“Plaintiff alleged 

specific facts in his sworn complaint and they were required to be considered in their sworn 

form.”); Moulds v. Bullard, 345 F. App'x 387, 391 (11th Cir. 2009) (per curiam) (“In another 

prisoner's § 1983 case, we held that specific facts pled in a sworn complaint must be 

considered in opposition to summary judgment. Perry v. Thompson, 786 F.2d 1093, 1095 

(11th Cir. 1986). However, sworn statements must be made on personal knowledge, and 

statements based in part upon information and belief cannot raise a genuine issue of fact. 

Pace v. Capobianco, 283 F.3d 1275, 1278 (11th Cir. 2002) (citing Fed. R. Civ. P. 56(e)).”).

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documents to get an arrest[,]” and “did not charge [Cloy] with any charge.” This 

caused him to be “placed in a level (4) high level security facility...for absolutely no 

reason” and to be “placed under a $200,000.00 bond...” Stated another way, Cloy 

claims “the State falsely accuse [sic] [him] of a serious felony and confined [him] to a 

strick [sic] holding falcility [sic] for absolutely no reason...” (Id. at 4-5). He also 

claims:

Had these charges not been brought against [Cloy] treatment would 

not have been so harsh and he very well may have been able to make a 

probation bond or a 90 day sanction because the state charged [Cloy] 

with a harsh charge and refuse to drop it until several months later, 

th[e] judge who ruled on this case and the probation officer refuse [sic] 

to sanction [Cloy] to a lesser violation penelity [sic].

There was absolutely no evidence or witness to say [Cloy] had 

committed a crime. There was only a had [sic] written letter from the 

Foley Police Department threating [Cloy] stating they were going to 

give him 50 years, and he had stole drugs from other drug dealers as 

well as other trobling statement [sic], which [Cloy] has in his 

possession as well as served other witnesses who [illegible] will to 

testify that Police Department had indeeded [sic] threating [sic] [Cloy].

(Id. at 6).

IV. Causes of Action

In his operative complaint, Cloy asserts claims for false arrest and false 

imprisonment under 42 U.S.C. § 1983.6 (See generally Doc. 21).7 More specifically, 

 6 “Section 1983, which derives from § 1 of the Civil Rights Act of 1871, 17 Stat. 13, creates a 

private right of action to vindicate violations of ‘rights, privileges, or immunities secured by 

the Constitution and laws’ of the United States. Under the terms of the statute, ‘ “[e]very 

person” who acts under color of state law to deprive another of a constitutional right [is] 

answerable to that person in a suit for damages.’ Imbler v. Pachtman, 424 U.S. 409, 417, 96 

S. Ct. 984, 47 L. Ed. 2d 128 (1976) (citing 42 U.S.C. § 1983).” Rehberg v. Paulk, 132 S. Ct.

1497, 1501-02 (2012).

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Cloy claims Seymore, in his capacity as assistant district attorney, “falsified 

evidence against” Cloy, and that there was “no witness,” “no indictment,” and “no 

case.” (Doc. 21 at 8). He also claims that Sheriff Mack “falsified evidence” and 

“arrested [Cloy] without evidence...” (Doc. 21 at 8). No specific claim is made 

against Boutwell, other than that she violated Cloy’s 5th- and 14th-Amendment 

constitutional rights in some way. (Id.).

Cloy’s response (Doc. 44) to Sheriff Mack’s Special Report provides some 

clarification regarding his claims. As in his operative complaint, see supra, Cloy 

admits “that he had indeed violated the terms of his probation.” (Id. at 1). Cloy 

further states that he “is only filing a claim for (unlawful imprisonment) on the 

charges of Robbery 1st & Burgulary [sic] 1st in which he was charged” and that “the 

District Attorney has already admitted to the (United States Courts for the 

Southern District of Alabama Southern Division) that they did not have enough 

evidence to charge [Cloy] but yet they did so.” (Id.). As to Sheriff Mack and 

Boutwell, Cloy says he “only stated that [they] signed a worthless instrument.” 

(Id.).

 7 Cloy’s operative complaint (Docs. 21, 25) is the sole source of any of his claims in this 

action. Claims raised for the first time in Cloy’s summary judgment briefing will not be 

addressed. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) 

(“At the summary judgment stage, the proper procedure for plaintiffs to assert a new claim 

is to amend the complaint in accordance with Fed. R. Civ. P. 15(a). A plaintiff may not 

amend h[is] complaint through argument in a brief opposing summary judgment.”). 

Moreover, “[l]iberal pleading does not require that, at the summary judgment stage, 

defendants must infer all possible claims that could arise out of facts set forth in the 

complaint.” Id. See also Al-Amin v. Donald, 165 F. App'x 733, 740 (11th Cir. 2006) (per 

curiam) (“Pro se pleadings are interpreted liberally, but even a pro se plaintiff must allege 

some factual basis for his claim. See Jones v. Ray, 279 F.3d 944, 946-47 (11th Cir. 2001). A 

defendant is not required to ‘infer all possible claims that could arise out of the facts set 

forth in the complaint.’ Gilmour v. Gates, McDonald, & Co., 382 F.3d 1312, 1315 (11th Cir. 

2004).”).

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Upon consideration, the undersigned finds that Cloy is not challenging the 

propriety of his arrest and confinement on the basis of his probation violation. 

Rather, his claims in this action are based on the propriety of the Burglary 1st and 

Robbery 1st charges, and the resulting February 17, 2012 arrest warrants issued by 

the Baldwin County Circuit Clerk’s Office based on those charges. (See, e.g., Doc. 21 

at 4 (“On or about May 1st 2012 petitioner was falsely arrested and charged with the 

offense charge of Robbery 1st and Burglary 1st...”). Cloy claims that there was no

witness or other evidence to support these charges. Instead, he claims the “state 

falsified documents to get an arrest...” (Id. at 5).

Cloy contends that, had the state simply held him on “a probation violation 

and proceeded to process that case[,]” he “very well may have been able to make a 

probation bond or a 90 day sanction...” (Id. at 5-6). However, because the 

prosecutor allegedly issued trumped-up and false felony charges against Cloy, in 

addition to his probation violation, Cloy claims this caused him to be placed under 

an “outrageous” “$200,000.00 bond” and to be held in “a level (4) high level security 

facility”/“strick [sic] holding facility for absolutely no-reason...” (Id. at 5). 

Moreover, the additional, false felony charges allegedly resulted in Judge Reid and 

Cloy’s probation officer “refus[ing] to sanction [Cloy] to a lesser violation penelity 

[sic].” (Id. at 6).

In sum, the undersigned finds Cloy’s claims are based on the following 

circumstances:

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• After Judge Reid issued his bench warrant for Cloy on Cloy’s probation 

violation, the Defendants falsely obtained Robbery 1st and Burglary 1st

charges against Cloy from the Baldwin County Grand Jury and had the 

February 17, 2012 arrest warrants issued based on these charges.

• Once Cloy was arrested, the false charges of Robbery 1st and Burglary 1st

reduced the chance of Cloy being released while awaiting disposition of his 

probation violation and resulted in Cloy being detained on a large bond in a 

holding facility.

• Cloy received a harsher penalty on his probation violation because of the 

then-pending Robbery 1st and Burglary 1st charges.

Though Cloy’s complaint cites the Fifth and Fourteenth Amendments in 

asserting claims for false arrest and imprisonment, the Eleventh Circuit has held 

that where, as here, a plaintiff is arrested pursuant to a warrant, the plaintiff’s § 

1983 claim is one for malicious prosecution rather than false arrest or false 

imprisonment. See Whiting v. Traylor, 85 F.3d 581, 585 (11th Cir. 1996) (“Here, 

Whiting says that Defendants applied for and obtained an arrest warrant and—

based on the warrant—caused him to be unreasonably ‘seized’ in 1988. He says also 

he was unlawfully arrested in February 1989. Obtaining an arrest warrant is one of 

the initial steps of a criminal prosecution. Under these circumstances (that is, 

where seizures are pursuant to legal process), we agree with those circuits that say 

the common law tort most closely analogous to this situation is that of malicious 

prosecution.” (some quotation marks omitted)); Carter v. Gore, 557 F. App'x 904, 906 

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(11th Cir. 2014) (per curiam) (“The district court dismissed Carter's claim in part 

because if Carter's ‘arrest occurred pursuant to an arrest warrant, then he cannot 

state a viable § 1983 claim for false arrest or false imprisonment.’ Instead, the 

district court held that Carter could only make out a claim for malicious 

prosecution, which is the constitutional tort available to people who have been 

wrongfully arrested pursuant to legal process...Given that Carter was arrested 

pursuant to a warrant, the district court properly concluded that Carter's only 

available claim against [police officer ]Gore under § 1983 was for malicious 

prosecution. In Heck v. Humphrey, the Supreme Court distinguished false arrest 

from malicious prosecution, stating, ‘unlike the related cause of action for false 

arrest or imprisonment, [malicious prosecution] permits damages for confinement 

imposed pursuant to legal process.’ 512 U.S. 477, 484, 114 S. Ct. 2364, 2371, 129 L. 

Ed. 2d 383 (1994). The issuance of a warrant—even an invalid one as Carter 

alleges was issued here—constitutes legal process, and thus, where an individual 

has been arrested pursuant to a warrant, his claim is for malicious prosecution 

rather than false arrest.” (citing, inter alia, Whiting)). “This Circuit ‘has identified 

malicious prosecution as a violation of the Fourth Amendment and a viable 

constitutional tort cognizable under § 1983.’ ” Grider v. City of Auburn, Ala., 618 

F.3d 1240, 1256 (11th Cir. 2010) (quoting Wood v. Kesler, 323 F.3d 872, 881 (11th 

Cir. 2003)). “To establish a § 1983 malicious prosecution claim, the plaintiff must 

prove two things: (1) the elements of the common law tort of malicious prosecution; 

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and (2) a violation of his Fourth Amendment right to be free from unreasonable 

seizures.” Id.

As such, construing the allegations in Cloy’s pro se pleadings liberally, the 

undersigned finds that Cloy’s claims in this action are for malicious prosecution, 

rather than false imprisonment, under § 1983. Moreover, because Cloy does not 

specify in what capacit(ies) he is suing the Defendants, the undersigned will 

presume that each is being sued in both his or her individual and official 

capacities.8

V. Analysis

a. Official Capacity Claims

With some exceptions, “a suit in which the State or one of its agencies or 

departments is named as the defendant is proscribed by the Eleventh Amendment. 

This jurisdictional bar applies regardless of the nature of the relief sought.” 

 8 The Supreme Court has described this distinction as follows:

On the merits, to establish personal liability in a § 1983 action, it is enough to 

show that the official, acting under color of state law, caused the deprivation 

of a federal right. More is required in an official-capacity action, however, for 

a governmental entity is liable under § 1983 only when the entity itself is a 

moving force behind the deprivation; thus, in an official-capacity suit the 

entity's policy or custom must have played a part in the violation of federal 

law. When it comes to defenses to liability, an official in a personal-capacity 

action may, depending on his position, be able to assert personal immunity 

defenses, such as objectively reasonable reliance on existing law. In an 

official-capacity action, these defenses are unavailable. The only immunities 

that can be claimed in an official-capacity action are forms of sovereign 

immunity that the entity, qua entity, may possess, such as the Eleventh 

Amendment. While not exhaustive, this list illustrates the basic distinction 

between personal- and official-capacity actions.

Kentucky v. Graham, 473 U.S. 159, 166-67 (1985) (internal citations, quotations, and 

footnotes omitted).

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Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (citations 

omitted). “[S]tate officials sued in their official capacity are also protected by the 

amendment.” Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1277 (11th Cir. 1998) 

(citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)). Indeed,

[w]hen a state official is made a defendant in a suit, whether it is 

nominally brought against him in his official or individual capacity, a 

court must determine the real, substantial party in interest. See 

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S. 

Ct. 900, 908, 79 L. Ed. 2d 67 (1984). If it is the State, the official may 

assert the defense of Eleventh Amendment sovereign immunity. See 

id. at 101–02, 104 S. Ct. at 908–09. “The general rule is that a suit is 

against the sovereign if the judgment sought would expend itself on 

the public treasury or domain, or interfere with the public 

administration, or if the effect of the judgment would be to restrain the 

Government from acting, or to compel it to act.” Id. at 101 n.11, 104 S. 

Ct. at 908 n. 11 (internal quotation and citation omitted).

Id. at n.3.

Alternatively, “[s]tates ... no longer need to rely exclusively on eleventh 

amendment immunity to avoid liability ... in section 1983 cases. In Will v. 

Michigan Department of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 

(1989), the Supreme Court held that states ... are not ‘persons’ subject to liability 

under 42 U.S.C. § 1983.” Carr v. City of Florence, Ala., 916 F.2d 1521, 1525 n.3 

(11th Cir. 1990). Moreover, “[s]uing individuals in their official capacities is 

‘another way of pleading an action against an entity of which an officer is an agent.’ 

” Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1524 (11th Cir. 1995) (quoting 

Graham, 473 U.S. at 165). As such, “[a] state, a state agency, and a state official 

sued in his official capacity are not ‘persons’ within the meaning of § 1983, thus 

damages are unavailable...” Id. (citing Will, 491 U.S. at 71). The analysis for 

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16

determining whether a state official is covered by eleventh amendment immunity is 

the same as that for applying Will v. Michigan Department of State Police – courts 

consider the laws of the state. Carr, 916 F.2d at 1525 & n.4.

Sheriff Mack asserts that he is entitled to Eleventh Amendment immunity 

(see Doc. 41 at 2), and the Eleventh Circuit has held “that the eleventh amendment 

bar[s] a section 1983 lawsuit against an Alabama sheriff in his official capacity.” 

Carr, 916 F.2d at 1525 (citing Parker v. Williams, 862 F.2d 1471 (11th Cir. 1989)). 

Alabama district attorneys’ offices have also been held to be state agencies enjoying 

Eleventh Amendment immunity. See Garrett v. Talladega Cnty. Drug & Violent 

Crime Task Force, 983 F. Supp. 2d 1369, 1376 (N.D. Ala. 2013) (“All District 

Attorney's offices are deemed to be agencies of the State of Alabama. Hooks v. Hitt,

539 So. 2d 157, 159 (Ala. 1988) (holding that the district attorneys and their 

employees are ‘state employees whose salaries are funded by the state’) (citing Ala. 

Code § 12–7–182 (1975)); McMillian v. Monroe County, Ala., 520 U.S. 781, 790, 117 

S. Ct. 1734, 1739, 138 L. Ed. 2d 1 (1997) (citing Hooks and observing that an 

Alabama district attorney is a state official).”).9

 9 “Unlike most subject matter jurisdiction issues, which cannot be waived by the 

parties and must be raised by a court on its own initiative, the Eleventh Amendment does 

not automatically deprive a court of original jurisdiction...Thus, unlike other jurisdictional 

bars, federal courts are required to consider whether the Eleventh Amendment strips them 

of jurisdiction only if the state defendant insists that it does.” McClendon v. Ga. Dep't of 

Cmty. Health, 261 F.3d 1252, 1257 (11th Cir. 2001).

Even though Seymore and Boutwell have not appeared in this action to raise the 

issue of Eleventh Amendment immunity, as Cloy is proceeding in forma pauperis, the 

undersigned finds it appropriate to address the issue sua sponte. 28 U.S.C. § 1915(e)(2)(iii) 

(“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court 

shall dismiss the case at any time if the court determines that...the action or appeal...seeks 

monetary relief against a defendant who is immune from such relief.”).

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Finally, Alabama law indicates that circuit court clerks’ offices are considered 

state agencies. Compare Ala. Code § 12-17-80 (“Clerks...of the circuit court shall be 

paid by the state...Employees in the offices of the circuit clerks...shall be paid by 

the state beginning October 1, 1977. Employees in the offices of clerks...shall be 

paid by the county through September 30, 1977.”) and Stegmaier v. Trammell, 597 

F.2d 1027, 1037 (5th Cir. 1979 10 (“Although elected under the Alabama 

Constitution, Circuit Clerks are employed and paid by the State of Alabama.” 

(citing Ala. Code § 12-17-80)) with Scott v. Estes, 60 F. Supp. 2d 1260, 1272-73 (M.D. 

Ala. 1999) (“The Alabama Constitution, however, designates the Montgomery 

County Judge of Probate as a ‘county officer’ and requires the county to pay his 

salary. 1901 Ala. Const. amend. 4... And other provisions of the Alabama 

Constitution and the 1975 Alabama Code indicate that probate judges are not state 

officers, at least for purposes related to their compensation...Because the 

Montgomery County Judge of Probate is a county official, it logically follows that 

the chief clerk of the Montgomery County Probate Court, a subordinate of the 

probate judge, is also a county, and not a state, official.”). Circuit clerks have the 

power “[t]o appoint deputies, with full power to transact all business of such clerks,” 

Ala. Code § 12-17-93(2), and “[a] deputy clerk is the alter ego of the clerk...” Wyres 

v. State, 32 Ala. App. 630, 632 (Ala. Ct. App. 1947). Thus, Boutwell, in her official 

capacity, is also considered a state official.

 10 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the 

Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions issued before 

October 1, 1981.

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The Supreme Court has recognized three limited exceptions to the rule 

barring § 1983 actions against[ a state or] state officials sued in their 

official capacity. The first exception is when a state has waived its 

Eleventh Amendment sovereign immunity and has consented to suit in 

federal court. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 

105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985). This exception does not apply 

here, however, because the State of Alabama has not waived its 

immunity to suit in § 1983 cases. See Alabama v. Pugh, 438 U.S. 781, 

782, 98 S. Ct. 3057, 57 L.Ed.2d 1114 (1978). The Alabama Constitution 

explicitly states that “the State of Alabama shall never be made a 

defendant in any court of law or equity.” Ala. Const. Art. I, § 14.[ 11] 

The second exception is when Congress has properly abrogated 

sovereign immunity through its powers under the Fourteenth 

Amendment; however, such an abrogation has not occurred with 

respect to § 1983 claims. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 

55–73, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996); Carr[ v. City of 

Florence, Ala.], 916 F.2d [1521,] 1525[ (11th Cir. 1990)]. Lastly, under 

the doctrine of Ex parte Young, the Eleventh Amendment does not bar 

§ 1983 actions against state officials which seek prospective injunctive 

relief to end continuing violations of federal law. See Ex parte Young,

209 U.S. 123, 155–56, 28 S. Ct. 441, 52 L. Ed. 714 (1908); see also 

Seminole Tribe of Fla., 517 U.S. at 73 (quoting Green v. Mansour, 474 

U.S. 64, 68, 106 S. Ct. 423, 88 L.Ed.2d 371 (1985)); Summit Med. 

Assoc. v. Pryor, 180 F.3d 1326, 1336 (11th Cir. 1999). As noted in 

Summit Medical, “[b]ecause of the important interests of federalism 

and state sovereignty implicated by Ex parte Young... the doctrine is 

not without limitations.” 180 F.3d at 1337. One limitation, which is 

relevant to this action, is that “the Ex parte Young doctrine applies 

 11 See also Haley v. Barbour Cnty., 885 So. 2d 783, 788 (Ala. 2004):

Section 14, Ala. Const. 1901, provides “[t]hat the State of Alabama shall never be 

made a defendant in any court of law or equity.” This section affords the State 

and its agencies an “absolute” immunity from suit in any court. Ex parte Mobile 

County Dep't of Human Res., 815 So. 2d 527, 530 (Ala. 2001) (stating that Ala. 

Const. 1901, § 14, confers on the State of Alabama and its agencies absolute 

immunity from suit in any court); Ex parte Tuscaloosa County, 796 So. 2d 1100, 

1103 (Ala. 2000) (“Under Ala. Const. of 1901, § 14, the State of Alabama has 

absolute immunity from lawsuits. This absolute immunity extends to arms or 

agencies of the state....”). Indeed, this Court has described § 14 as an “almost 

invincible” “wall” of immunity. Alabama State Docks v. Saxon, 631 So. 2d 943, 

946 (Ala. 1994). This “wall of immunity” is “nearly impregnable,” Patterson v. 

Gladwin Corp., 835 So. 2d 137, 142 (Ala. 2002), and bars “almost every 

conceivable type of suit.” Hutchinson v. Board of Trustees of Univ. of Ala., 288 

Ala. 20, 23, 256 So. 2d 281, 283 (1971).

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only to ongoing and continuous violations of federal law.” Id. (citing 

Papasan v. Allain, 478 U.S. 265, 277–78, 106 S. Ct. 2932, 92 L. Ed. 2d 

209 (1986))...“[A] plaintiff may not use the doctrine to adjudicate the 

legality of past conduct.” Id.

Jacoby v. Baldwin Cnty., Civil Action No. 12-0640-CG-N, 2014 WL 2641834, at *7 

(S.D. Ala. June 13, 2014) (Granade, J., adopting the recommendation of Nelson, 

M.J.). Accord Carr, 916 F.2d at 1524-25 & n.2. See also Edwards, 49 F.3d at 1524 

(“[A] state official sued in his official capacity is a person for purposes of § 1983 

when prospective relief, including injunctive relief, is sought.” (citing Will, 491 U.S. 

at 71 n.10)).

Cloy has not sought, nor shown entitlement to, prospective relief to end 

ongoing and continuing violations of federal law,12 the Young exception does not 

apply in this action. Thus, Cloy’s claims against the Defendants in their official 

capacities are due to be DISMISSED, as the Defendants in their official capacities 

are immune from suit on these claims under the Eleventh Amendment and are not 

“persons” subject to suit under § 1983.

b. Individual Capacity Claims

1. Seymore and Boutwell

As explained above, Seymore has not been served with notice of this action, 

and it is unclear if Boutwell has. Upon review of the record, the undersigned finds 

that sua sponte dismissal of these defendants under Federal Rule of Civil Procedure 

4(m) for failure to serve would be inappropriate. See Richardson v. Johnson, 598 

 12 In addition to monetary relief (see Doc. 21 at 10; Doc. 25), Cloy has only requested that 

the Court “clear [his] name from false arrest” and “place penalties against” the Defendants, 

which only addresses past conduct and does not implicate prospective relief to end ongoing 

constitutional violations.

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F.3d 734, 738-40 (11th Cir. 2010) (per curiam) (“[A]s long as the court-appointed 

agent can locate the prison-guard defendant with reasonable effort, prisonerlitigants who provide enough information to identify the prison-guard defendant 

have established good cause for Rule 4(m) purposes.”). However, the undersigned 

finds that Cloy has failed to state a claim against either Seymore or Boutwell that

would entitle him to relief. See 28 U.S.C. § 1915(e)(2)(iii); Mitschell v. Donald, 213 

F. App'x 920, 922 (11th Cir. 2007) (per curiam) (“Under § 1915A, the district court 

shall review, as soon as possible, a prisoner's complaint in a civil action against a 

government entity. The district court must then dismiss the complaint if it is 

frivolous, malicious, or fails to state a claim upon which relief may be granted.” 

(citing 28 U.S.C. § 1915A(a)-(b))).

As was explained to Cloy previously (see Doc. 46 at 2 n.2; Doc. 51 at 1 n.1),

[t]raditional common-law immunities for prosecutors apply to civil 

cases brought under § 1983. Imbler v. Pachtman, 424 U.S. 409, 427–28, 

96 S. Ct. 984, 993–94, 47 L. Ed. 2d 128 (1976). “[A]t common law, ‘[t]he 

general rule was, and is, that a prosecutor is absolutely immune from 

suit for malicious prosecution.’ ” Malley v. Briggs, 475 U.S. 335, 342, 

106 S. Ct. 1092, 1097, 89 L. Ed. 2d 271 (1986) (quoting Imbler, 424 

U.S. at 437, 96 S. Ct. at 998). In § 1983 actions, prosecutors have 

absolute immunity for all activities that are “ ‘intimately associated 

with the judicial phase of the criminal process.’ ” Van de Kamp v. 

Goldstein, 555 U.S. 335, 129 S. Ct. 855, 860, 172 L. Ed. 2d 706 (2009)

(quoting Imbler, 424 U.S. at 430, 96 S. Ct. at 995); accord Jones v. 

Cannon, 174 F.3d 1271, 1281 (11th Cir. 1999).

Absolute immunity does not depend entirely on a defendant's job title, 

but involves a functional approach granting immunity based on 

conduct. Jones, 174 F.3d at 1282. This functional approach looks to 

“the nature of the function performed, not the identity of the actor who 

performed it.” Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S. Ct. 

2606, 2613, 125 L. Ed. 2d 209 (1993); accord Imbler, 424 U.S. at 431 

n.33, 96 S. Ct. at 995 n. 33.

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Absolute immunity accordingly applies to the prosecutor's actions “in 

initiating a prosecution and in presenting the State's case.” Imbler, 424 

U.S. at 431, 96 S. Ct. at 995. Prosecutors are immune for appearances 

in judicial proceedings, including prosecutorial conduct before grand 

juries, statements made during trial, examination of witnesses, and 

presentation of evidence in support of a search warrant during a 

probable cause hearing. Burns v. Reed, 500 U.S. 478, 490–92, 111 S. 

Ct. 1934, 1942, 114 L. Ed. 2d 547 (1991); Kalina v. Fletcher, 522 U.S. 

118, 126, 118 S. Ct. 502, 507–08, 139 L. Ed. 2d 471 (1997); see also Van 

de Kamp, 129 S. Ct. at 861. “A prosecutor enjoys absolute immunity 

from allegations stemming from the prosecutor's function as advocate.” 

Jones, 174 F.3d at 1281. Such absolute immunity also “extends to a 

prosecutor's acts undertaken ... in preparing for the initiation of 

judicial proceedings or for trial, and which occur in the course of his 

role as an advocate for the State.” Id. (quotation marks omitted); 

accord Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1279–80 (11th 

Cir. 2002) (holding prosecutor who proffered perjured testimony and 

fabricated exhibits at trial is entitled to absolute immunity, but a 

prosecutor who participated in the search of a suspect's apartment is 

entitled to only qualified immunity).

Rehberg v. Paulk, 611 F.3d 828, 837-38 (11th Cir. 2010), aff'd, 132 S. Ct. 1497 

(2012).

Prosecutors have absolute immunity when “filing an information 

without investigation, filing charges without jurisdiction, filing a 

baseless detainer, offering perjured testimony, suppressing exculpatory 

evidence, refusing to investigate ... complaints about the prison 

system, [and] threatening ... further criminal prosecutions ....” Henzel 

v. Gerstein, 608 F.2d 654, 657 (5th Cir. 1979); accord Marx v. 

Gumbinner, 855 F.2d 783, 789 n.10, 790 (11th Cir. 1988) (concluding 

that prosecutors have absolute immunity for rendering legal advice to 

police officers concerning the existence of probable cause to arrest).

Hart v. Hodges, 587 F.3d 1288, 1295 (11th Cir. 2009) (per curiam) (footnote 

omitted).

“If a prosecutor functions in a capacity unrelated to his role as an advocate 

for the state, he is not protected by absolute immunity but enjoys only qualified 

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immunity.” Rehberg, 611 F.3d at 838. However, because Cloy is claiming that 

Seymore falsified evidence in order to secure charges of Robbery 1st and Burglary 1st

from the grand jury, Seymore is clearly entitled to absolute prosecutorial immunity 

for claims arising from this alleged conduct. See id. at 837-38 (“Prosecutors are 

[absolutely ]immune for appearances in judicial proceedings, including prosecutorial 

conduct before grand juries...”). For this reason, as well as the reasons stated in 

Section V.a., supra, the undersigned RECOMMENDS that Cloy’s claims against 

Seymore be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(iii), as he is immune 

from those claims in both his official and individual capacities.

Cloy’s claims against Boutwell must also fail. It is well established that 

“[j]udges are entitled to absolute judicial immunity from damages for those acts 

taken while they are acting in their judicial capacity unless they acted in the ‘ “clear 

absence of all jurisdiction.” ’ ” Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) 

(per curiam) (quoting Stump v. Sparkman, 435 U.S. 349, 356–57 (1978)). Accord

Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005) (per curiam). “This immunity 

applies even when the judge's acts are in error, malicious, or were in excess of his or 

her jurisdiction.” Bolin, 225 F.3d at 1239 (citing Stump, 435 U.S. at 356). “The 

factors which determine whether an act is judicial ‘relate to the nature of the act 

itself, i.e., whether it is a function normally performed by a judge, and to the 

expectations of the parties, i.e., whether they dealt with the judge in his judicial 

capacity.’ ” Scott v. Dixon, 720 F.2d 1542, 1547 (11th Cir. 1983) (quoting Dennis v. 

Sparks, 449 U.S. 24, 28 (1980)).

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Though Boutwell is not a judge, the Eleventh Circuit has held that a state 

court clerk’s “issuance of a warrant would be a function normally performed by a 

judge” and is thus a “judicial act” entitling the clerk to absolute judicial immunity 

for that act. Id. Accord Dykes v. Hosemann, 776 F.2d 942, 946 (11th Cir. 1985) (en 

banc) (per curiam) (“[I]n Scott v. Dixon, 720 F.2d 1542, 1546-47 (11th Cir. 1983), 

cert. denied, 469 U.S. 832, 105 S. Ct. 122, 83 L. Ed. 2d 64 (1984), affirming the 

dismissal of a claim against a court clerk, we held that judicial immunity would be 

assumed despite the appellants' assertion that the court clerk and another 

defendant conspired with one another or reached an understanding concerning a 

judicial act to be performed.”); id. at 954 n.2 (Hatchett, J., dissenting) (“Bear in 

mind that under Scott v. Dixon, 720 F.2d 1542 (11th Cir.1983), a court clerk issuing 

an arrest warrant is acting in a judicial capacity and entitled to absolute 

immunity.”); Files v. Alexander City, Ala., No. 3:14-CV-239-WKW, 2014 WL 

2429248, at *7 (M.D. Ala. May 29, 2014) (“Where a court clerk acts pursuant to 

authority granted by state law and acts on behalf of a court, the clerk is absolutely 

immune from damages liability when sued under 42 U.S.C. § 1983 because she is 

performing a judicial function.” (citing Scott)).

Cloy has made no specific factual allegations against Boutwell in his 

operative complaint, and from the evidence produced by Sheriff Mack, Boutwell’s 

only relevant involvement in the activities underlying this action is that, in her 

capacity as a staff member of the Baldwin Circuit Court Clerk, she issued the two 

February 17, 2012 arrest warrants against Cloy. Cloy admits as much in his 

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response to Sheriff Mack’s Special Report, claiming he has only stated that 

Boutwell “signed a worthless instrument.” (Doc. 44 at 1). Because this constituted 

a “judicial act” by Boutwell, she is entitled to absolute judicial immunity on Cloy’s 

claims against her in this action. For this reason, as well as the reasons stated in 

Section V.a., supra, the undersigned RECOMMENDS that Cloy’s claims against 

Boutwell be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(iii), as she is immune 

from those claims in both her official and individual capacities.

2. Sheriff Mack

As a supervisory official, Sheriff [Mack] is only liable under § 1983 for 

the unconstitutional acts of his subordinates if he personally 

participated in the allegedly unconstitutional conduct, or his actions 

were causally connected to the alleged constitutional deprivation. A 

causal connection may be shown by evidence of (1) a custom or policy 

that results in deliberate indifference to constitutional rights, (2) facts 

that support an inference that the supervisor directed the subordinates 

to act unlawfully or knew that the subordinates would act unlawfully 

and failed to stop them from doing so, or (3) a history of widespread 

abuse that notified the supervisor of the need to correct the alleged 

deprivation, but he failed to do so. 

Campbell v. Johnson, 586 F.3d 835, 840 (11th Cir. 2009) (per curiam) (internal 

citation and quotations omitted).

In his sworn affidavit, Sheriff Mack states that he “was not personally 

involved in the arrest or incarceration of Mr. Cloy” and that he “did not appear at 

any hearing, provide testimony, or personally participate in any court proceeding 

related to the probation violation charge against Mr. Cloy or any other charges that 

may have been brought against him at that time.” (Doc. 40-3 at 3-4, ¶¶ 6, 9 [Sheriff 

Mack Aff.]). Cloy has presented not evidence to rebut this assertion, nor has he 

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presented argument or evidence showing any sort of “causal connection” between 

any action by Sheriff Mack and Cloy’s alleged constitutional deprivation.

Moreover, “the existence of probable cause defeats a § 1983 malicious 

prosecution claim.” Grider, 618 F.3d at 1256. “ ‘Probable cause’ is defined as facts 

and circumstances sufficient to warrant a prudent man in believing that the suspect 

had committed or was committing an offense. Probable cause may exist based on 

the collective knowledge of law enforcement officials derived from reasonably 

trustworthy information.” Id. at 1257 (internal citation and quotations omitted). 

Moreover, Sheriff Mack has asserted the affirmative defense of qualified 

immunity. 13 “To receive qualified immunity, an officer need not have actual 

probable cause, but only arguable probable cause. Arguable probable cause exists 

where reasonable officers in the same circumstances and possessing the same 

knowledge as the Defendants could have believed that probable cause existed to 

arrest Plaintiff.” Grider, 618 F.3d at 1257 (internal citations, quotations, and 

footnote omitted). “The standard is an objective one and does not include an inquiry 

into the officer's subjective intent or beliefs.” Id.

Here, the undisputed record evidence indicates that Sheriff Mack, having 

been provided with the two February 17, 2012 writs of arrest issued by the Baldwin 

County Circuit Clerk, had, at the very least, arguable probable cause to arrest and 

 13 “The initial inquiry in a qualified immunity case is whether the public official proves ‘that 

he was acting within the scope of his discretionary authority when the allegedly wrongful 

acts occurred.’ ” Grider, 618 F.3d at 1254 n.19 (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 

(11th Cir. 2002) (internal quotation marks omitted)). Cloy does not contest that Sheriff 

Mack was at all relevant times acting within the scope of his discretionary authority, and 

the undersigned finds that the record amply supports such a determination.

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hold Cloy pursuant to the charges underlying those writs.14 Even assuming that 

the charges underlying those writs were improper, Cloy has presented no evidence 

indicating that Sheriff Mack was aware or should have been aware of this, and 

“[a]rresting officers and those responsible for maintaining custody of detainees are 

not constitutionally required ‘to investigate independently every claim of innocence, 

whether the claim is based on mistaken identity or a defense such as lack of 

requisite intent.’ ” Cannon v. Macon Cnty., 1 F.3d 1558, 1562 (11th Cir. 1993) 

(quoting Baker v. McCollan, 443 U.S. 137, 146 (1979)), opinion modified on other 

grounds on reh'g, 15 F.3d 1022 (11th Cir. 1994).15

 14 Cloy has presented no evidence or argument indicating that Sheriff Mack secured the 

arrest warrants himself. See Carter, 557 F. App'x at 907 (“[I]n Kelly v. Curtis, we held an 

officer liable for malicious prosecution under § 1983 where she secured an arrest warrant 

without probable cause, without any discussion of subsequent control over the suspect or 

further participation in his prosecution. 21 F.3d 1544, 1555 (11th Cir. 1994). Similarly, in 

Whiting[ v. Traylor], we held that merely by securing an arrest warrant without probable 

cause, regardless of subsequent detention, a ‘Fourth Amendment violation ... analogous to 

the tort of malicious prosecution[ ]’ occurs. 85 F.3d [581,] 586[ (1996)].”).

15 “The constituent elements of the common law tort of malicious prosecution are: (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.” Grider, 618 F.3d at 1256 (emphasis added) 

(quotation omitted). From Cloy’s representations in his complaint (Doc. 21) and in his 

response (Doc. 48) to Sheriff Mack’s Special Report, it appears the Robbery 1st and Burglary 

1st charges were dismissed by the state. Accordingly, the undersigned has presumed that 

the prosecution of those charges terminated in Cloy’s favor. See Uboh v. Reno, 141 F.3d 

1000, 1006 (11th Cir. 1998) (“[W]e conclude that the dismissal of some charges of the 

indictment by the prosecutor—notwithstanding Uboh's earlier conviction on other charges 

set forth in the indictment—constituted termination in favor of the accused for purposes of 

our preliminary inquiry into the statute of limitations issue raised in this appeal... Having 

determined that the dismissal of drug charges against Uboh constituted favorable 

termination against the accused, we resolve that Uboh's claims for malicious prosecution 

accrued on July 21, 1993, the date on which the district court entered its order of 

dismissal.”).

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For these reasons, as well as those stated in Section V.a., supra, the 

undersigned RECOMMENDS that Sheriff Mack’s motion for summary judgment 

(Docs. 40, 41, 46) be GRANTED.

VI. Conclusion

In accordance with the above-stated reasoning, the undersigned 

RECOMMENDS as follows:

1. That Sheriff Mack’s motion for summary judgment (Docs. 40, 41, 46) be 

GRANTED and that all claims against him be DISMISSED with 

prejudice; 

2. that Cloy’s claims against Seymore and Boutwell be DISMISSED with 

prejudice, prior to service of process, pursuant to 28 U.S.C. § 1915(e)(2)(iii), 

as they are immune from damages in this action; and

3. that final judgment be entered accordingly in favor of all Defendants and 

against Cloy.

VII. Notice of Right to File Objections

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or 

anything in it must, within fourteen (14) days of the date of service of this 

document, file specific written objections with the Clerk of this Court. See 28 U.S.C. 

§ 636(b)(1); FED. R. CIV. P. 72(b); S.D. ALA. L.R. 72.4. In order to be specific, an 

objection must identify the specific finding or recommendation to which objection is 

made, state the basis for the objection, and specify the place in the Magistrate 

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Judge’s report and recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the briefing before the 

Magistrate Judge is not specific.

DONE this the 22nd day of December 2014.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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