IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

 SOUTHERN DIVISION

ALBERT CURRY *

*

Plaintiff, *

 *

vs. * CIVIL ACTION NO. 13-00517-CG-B

 *

TODD HANKS, *

 *

Defendant. *

REPORT AND RECOMMENDATION

Plaintiff, Albert Curry, proceeding pro se and in forma

pauperis, filed a complaint seeking relief under 42 U.S.C. 

§ 1983 (Doc. 11). This action was referred to the undersigned 

pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. CivLR 

72(a)(2)(R), and is now before the undersigned on Defendant Todd 

Hanks’ Motion for Summary Judgment (Doc. 30) and Plaintiff’s 

Objection to the Motion (Doc. 31).1 After careful consideration 

of the motion and supporting materials, and Plaintiff’s 

objections, the undersigned recommends that Defendant’s Motion 

for Summary Judgment be GRANTED and that this action be 

DISMISSED with prejudice.

 

1 Defendant’s Answer and Special Report (Docs. 27, 28) were

collectively converted into and treated as a motion for summary 

judgment. (Doc. 30)

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I. SUMMARY OF FACTUAL ALLEGATIONS

From its review of the record, the Court summarizes the 

allegations that are material to the issues addressed in this 

Report and Recommendation. 2 This case arises out of Plaintiff 

Albert Curry’s arrest on September 1, 2012 for suspicion of 

driving under the influence of alcohol. (Doc. 14). At the time 

his arrest, Curry was out on bond in connection with a DUI 

charge. (Doc. 27 - 7). On September 1, 2012, Monroe County 

Sheriff’s Deputies Brandon Lolley and Ellis Manuel received a 

911 call in reference to a two vehicle wreck on Highway 21 North 

and County Road 42 in Monroeville, Alabama. (Docs. 27-1. 27-2, 

27-3) It was reported that one of the vehicles was attempting 

to leave the scene. (Id.) The deputies located an unoccupied 

silver van with front end damage parked in the roadway down from 

the accident scene. (Id.) Approximately 10 to 15 minutes after 

their arrival, deputies Lolley and Manuel heard sounds in the 

woods, and at their direction, Curry came walking out of the 

woods. Curry had a strong odor of alcohol, and was yelling that 

he was not driving the wrecked van. The deputies also observed 

 

2 For summary judgment purposes, the Court's analysis must 

begin with a description of the facts in the light most 

favorable to Curry, who is the non-moving party. See Skrtich v. 

Thornton, 280 F.3d 1295, 1299 (11th Cir. 2002). “[T]he ‘facts,’

as accepted at the summary judgment stage of the proceedings, 

may not be the ‘actual’ facts of the case." Priester v. City of 

Riviera Beach, 208 F.3d 919, 925 n.3 (11th Cir. 2000).

Case 1:13-cv-00517-CG-B Document 33 Filed 02/02/16 Page 2 of 17
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that he was loud and boisterous, that his speech was slurred and 

that he had an unsteady balance. (Id.)

Defendant William Todd Hanks, an Alabama State Trooper, was 

notified on September 1, 2012 of the two car accident at the 

intersection of Alabama Highway 21 and County Road 42 in Monroe 

County, Alabama, and was dispatched to the scene. (Id.) Upon 

arrival, he observed Curry in the backseat of the deputies’

patrol car, and was advised by the deputies that upon arrival, 

they saw the wrecked vehicle, and could see that someone had 

left the van, and went into the woods. (Id.) When the deputies 

heard noise in the woods, they instructed the person to come 

out, and in response, Curry came walking out of the woods. The 

deputies also relayed that Curry had a strong smell of alcohol, 

that he had trouble maintaining his balance and had slurred 

speech, and that Curry was the only person located in the 

vicinity of the wrecked van. (Id.)

Defendant Hanks made contact with Curry in the rear of the 

deputies’ patrol car, and observed that Curry had a strong odor 

of alcohol on him. Based on his observations, and the 

information relayed by the two deputies, Defendant Hanks caused 

Curry to be placed under arrest for DUI. (Doc. 27-3)

Curry filed a complaint in this matter in the Middle 

District of Alabama. (Doc. 5). Shortly thereafter, the case was 

transferred to the Southern District of Alabama. (Docs. 5, 6) 

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Curry claims that Defendant Hanks unlawfully arrested him on 

September 1, 2012. (Doc. 14) Hanks contends that the DUI charge 

was later dismissed, and that his arrest was unlawful because he 

was not driving the van at the time of the accident, the van did 

not belong to him, Defendant Hanks did not have any proof to 

support the charges against him, and Defendant Hanks failed to 

investigate the accident, including obtaining fingerprints from 

the steering wheel. (Doc. 31). 

For relief, Curry seeks to have the arrest “remove[d]” from 

his record, to be “release[d] back to probation,” and to be paid 

“for the time [he has] served for this unlawful arrest and 

wrongful incarceration.” (Doc. 14 at 7). In his Answer and 

Special Report, Defendant Hanks denies Curry’s allegations and 

asserts the defenses of failure to state a claim, qualified 

immunity, and state agent immunity to the extent that Curry 

alleges state law causes of action. (Docs. 27, 28). In support 

of his Special Report, Hanks has submitted affidavits, and other 

documents. (Docs. 27-1, 27-2, 27-3, 27-4, 27-5, 27-6, 27-7). 

On January 12, 2015, this Court converted Defendant’s 

Answer and Special Report into a motion for summary judgment, 

and afforded the parties an opportunity to file briefs in 

support of and opposing the motion. (Doc. 30). In response, 

Curry filed an Objection to Defendant’s Motion for Summary 

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Judgment. (Doc. 31). The summary judgment motion has been fully 

briefed and is now ready for resolution. 

II. SUMMARY JUDGMENT STANDARD

Summary Judgment is proper “if the movant shows that there 

is no genuine dispute as to any material fact and that the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 

L. Ed. 2d 265 (1986); Garczynski v. Bradshaw, 573 F.3d 1158, 

1165 (11th Cir. 2009) (“[S]ummary judgment is appropriate even 

if ‘some alleged factual dispute’ between the parties remains, 

so long as there is ‘no genuine issue of material

fact.’”(citation omitted)(emphasis in original)). 

The party asking for 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.” The movant can meet this burden by presenting 

evidence showing there is no dispute of material fact, 

or by showing, or 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. 

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

“requires the nonmoving party to go beyond the 

pleadings and by its own affidavits, or by the 

‘depositions, answers to interrogatories, and 

admissions on file,’ designate ‘specific facts showing 

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that there is a genuine issue for trial.’” To avoid 

summary judgment, the nonmoving party “must do more 

than show that there is some metaphysical doubt as to 

the material facts.” On the other hand, the evidence 

of the nonmovant must be believed and all justifiable 

inferences must be drawn in its favor. 

ThyssenKrupp Steel USA, LLC v. United Forming, Inc., 926 F. 

Supp. 2d 1286, 1289-90 (S.D. Ala. Jan. 29, 2013) (citations 

omitted). 

In considering whether the defendant is entitled to summary 

judgment in this case, the Court has viewed the facts in the 

light most favorable to Curry. Comer v. City of Palm Bay, 265

F.3d 1186, 1192 (llth Cir. 2001) (“We view the evidence and all 

factual inferences raised by it in the light most favorable to 

the non-moving party, and resolve all reasonable doubts about 

the facts in favor of the non-moving party.”)(citations 

omitted). 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. Id. “If the 

nonmoving party fails to make ‘a sufficient showing on an 

essential element of [his] case with respect to which [he] has 

the burden of proof,’ the moving party is entitled to summary 

judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th 

Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 

S. Ct. 2548, 91 L. Ed. 2d 265 (1986)) (footnote omitted). “In 

reviewing whether the nonmoving party has met its burden, the 

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court must stop short of weighing the evidence and making 

credibility determinations of the truth of the matter. Instead, 

the evidence of the non-movant is to be believed, and all 

justifiable inferences are to be drawn in his favor.” Tipton v. 

Bergrohr GMBH–Siegen, 965 F.2d 994, 999 (11th Cir. 1992) 

(internal citations and quotations omitted). “Summary judgment 

is justified only for those cases devoid of any need for factual 

determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 

F.2d 1013, 1016 (11th Cir.1987) (quotation marks and citation 

omitted).

Additionally, the Court is required to liberally construe a 

pro se litigant’s pleadings; however, the Court does not have 

“license to serve as de facto counsel for a party . . . or to 

rewrite an otherwise deficient pleading in order to sustain an 

action.” GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 

1359, 1369 (11th Cir. 1998) (citations omitted), overruled on 

other grounds by Randall v. Scott, 610 F.3d 701 (11th Cir. 

2010); see also Giles v. Wal-Mart Distrib. Ctr., 359 F. App’x 

91, 93 (11th Cir. 2009) (internal citations and quotations 

omitted) (“Although pro se pleadings are held to a less strict 

standard than pleadings filed by lawyers and thus are construed 

liberally, this liberal construction does not give a court 

license to serve as de facto counsel for a party, or to rewrite 

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an otherwise deficient pleading in order to sustain an 

action.”). 

III. DISCUSSION

As discussed above, Curry seeks redress pursuant to 42 

U.S.C. § 1983 for an alleged constitutional deprivation arising 

out of his September 1, 2012 arrest. 3 (Doc. 14). Curry 

essentially argues that Hanks did not have probable cause to 

arrest him. “A warrantless arrest without probable cause 

violates the Fourth Amendment and forms a basis for a section 

1983 claim.” Ortega v. Christian, 85 F. 3d 1521, 1525 (llth Cir. 

1996). “Probable cause to arrest exists if the facts and 

circumstances within the officer’s knowledge, of which he has 

reasonably trustworthy information would cause a prudent person 

to believe, under the circumstances shown, that the suspect has 

 

3 Section 1983 provides in pertinent part that: 

Every person who, under color of any 

statute, ordinance, regulation, custom, 

or usage, of any State or Territory or 

the District of Columbia, subjects, or 

causes to be subjected, any citizen of 

the United States or other person 

within the jurisdiction thereof to the 

deprivation of any rights, privileges, 

or immunities secured by the 

Constitution and laws, shall be liable 

to the party injured in an action at 

law, suit in equity, or other proper 

proceeding for redress . . . 

42 U.S.C. § 1983.

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committed or is committing an offense.” Id. However, there 

will be no liability if the officer is entitled to qualified 

immunity. See Pearson v. Callahan, 555 U.S. 223, 231m 129 S. Ct. 

808, 172 L. Ed. 2d 565 (2009). “To receive qualified immunity, 

the public official must first prove that he was acting within 

the scope of his discretionary authority when the allegedly 

wrongful acts occurred.” Kingsland v. City of Miami, 382 F. 3d 

1220, 1232 (llth Cir. 2004)(internal quotation marks omitted). 

In this case, there is no dispute that Defendant Hanks was 

exercising his discretionary authority as an Alabama State 

Trooper when he caused Curry to be arrested.

“Once the defendant establishes that he was acting within 

his discretionary authority, the burden shifts to the plaintiff 

to show that qualified immunity is not appropriate.” Id. 

(internal quotation marks omitted). The plaintiff must show 

that the alleged constitutional violation was “clearly 

established.” See Pearson, 555 U.S. at 232. “The contours of 

the right must be sufficiently clear that a reasonable official 

would understand that what he is doing violates that right.” 

Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034,97 L. 

Ed. 2d 523 (1987). In wrongful arrests cases, the Eleventh 

Circuit has defined the “clearly established” prong as an 

“arguable probable cause inquiry”, which is a more lenient 

standard than probable cause”. Moran v. Cameron, 362 Fed. Appx. 

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88, 93-94 (llth Cir. 2010). See also Jackson v. Sauls, 206 F.3d 

1156, 1165 (llth Cir. 2000)(“Thus a police officer is entitled 

to qualified immunity if a reasonable police officer could have 

believed his or her actions were lawful in light of clearly 

established law and the information possessed by the officer at 

the time the conduct occurred.”). As explained by the Eleventh 

Circuit in Skop v. City of Atlanta, 485 F. 3d 1130, 1137 (llth 

Cir. 2007),

While an officer who arrests an individual 

without probable cause violates the Fourth Amendment, 

this does not inevitably remove the shield of 

qualified immunity. We do not automatically hold an 

officer liable for making an arrest that, when seen 

with the benefit of hindsight, turns out not to have 

been supported by probable cause. As the Supreme Court 

observed in Anderson v. Creighton, 483 U.S. 635, 641, 

107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987), "it is 

inevitable that law enforcement officials will in some 

cases reasonably but mistakenly conclude that probable 

cause is present, and we have indicated that in such 

cases those officials . . . should not be held 

personally liable." Thus, even if we determine that 

the officer did not in fact have probable cause, we 

apply the standard of "arguable probable cause," that 

is, whether "reasonable officers in the same 

circumstances and possessing the same knowledge as the 

Defendant[] could have believed that probable cause 

existed to arrest." Lee v. Ferraro, 284 F.3d 1188, 

1195 (11th Cir. 2002) (emphasis added, quotation marks 

omitted). Indeed, this is "all that is required for 

qualified immunity to be applicable to an arresting 

officer." Scarbrough v. Myles, 245 F.3d 1299, 1302 

(11th Cir. 2001) (per curiam). This standard 

recognizes that law enforcement officers may make 

reasonable but mistaken judgments regarding probable 

cause but does not shield officers who unreasonably

conclude that probable cause exists.

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Under the arguable probable cause standard, it is the 

plaintiff’s burden to “demonstrate that no reasonable officer 

could have found probable cause under the totality of the 

circumstances.” Kingsland v. City of Miami, 382 F.3d 1220, 1232 

(11th Cir. 2004). Accordingly, the relevant inquiry is “whether 

[the Defendant] violated clearly established law in making the 

arrest[] based on the objective factors that gave rise to his 

probable-cause determination and not whether the arrestee[‘]s

actions actually constituted a crime.” Scarbrough, 245 F.3d at 

1303 n.8.

Whether an officer possesses probable cause or arguable 

probable cause depends on the elements of the crime and the 

operative fact pattern. Skop, 485 F.3d at 1137-38. However, 

arguable probable cause does not require an officer to prove 

every element of a crime prior to making an arrest, as such a 

requirement “would negate the concept of probable cause and 

transform arresting officers into prosecutors.” Scarbrough, 245 

F.3d at 1303. Under Alabama law, Driving while under influence 

of alcohol, controlled substances, etc.” (“DUI”) is defined as 

follows: 

(a) A person shall not drive or be in actual physical 

control of any vehicle while:

(1) There is 0.08 percent or more by weight 

of alcohol in his or her blood;

(2) Under the influence of alcohol;

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(3) Under the influence of a controlled 

substance to a degree which renders him or 

her incapable of safely driving;

(4) Under the combined influence of alcohol 

and a controlled substance to a degree which 

renders him or her incapable of safely 

driving; or

(5) Under the influence of any substance 

which impairs the mental or physical 

faculties of such person to a degree which 

renders him or her incapable of safely 

driving.

Ala. Code § 32-5A-191(a). Taken in the light most favorable to

Curry, the summary judgment record shows that Defendant Hanks 

possessed the following information at the time Curry was placed 

under arrest on September 2, 2012: Hanks was notified of a 911 

report of a two car accident on Highway 21 North and County Road 

42 in Monroeville, Alabama and that one of the vehicles had fled 

the scene; Hanks was dispatched to investigate the accident, and 

upon arrival, he was informed by deputies on the scene that the

wrecked van was located on the roadway a short distance from the 

accident, no one was present when officers arrived; however, 

they saw indications that someone had left the van and entered

the woods, that upon hearing noise in the woods, they directed 

the subject to come out, that Curry emerged from the woods 

smelling of alcohol, unsteady on his feet, and yelling that he 

was not driving the van; and that no one else was located in the 

vicinity of the wrecked van; Hanks made contact with Curry in 

the back of the patrol car, and confirmed that he smelled of 

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alcohol and that Curry became belligerent when he recognized 

Hanks from an encounter a few months earlier which resulted in 

Hanks arresting Curry for DUI. Based on the information relayed 

by 911 and the deputies on the scene, and Hanks’ personal 

observation of Curry on September 1, 2012, Hanks had Curry

placed under arrest for DUI, and other offenses. Curry does not 

dispute that he had a strong odor of alcohol on his person, was 

slurring his words and was unsteady on his feet when officers 

arrived at the scene, that he was in the van at the time of the 

accident, or that he was the only person in the vicinity of the 

wrecked van upon officers’ arrival at the scene. Accordingly, 

based upon the undisputed record evidence, the Court readily 

concludes that the record taken in the light most favorable to 

the Curry establishes that Defendant Hanks possessed at least

arguable probable cause for Curry’s DUI arrest on September 1, 

2012. 

While Curry contends that Defendant Hanks did not properly 

investigate the accident because he did not take finger prints 

on the front door, or steering wheel of the van, and never 

bothered to talk to the guy who owned the van (Doc. 31 at 2),

the undersigned finds that given the totality of the information 

available to Defendant Hanks, including, Curry’s presence in 

close vicinity to the van immediately following the accident, as 

well as the absence of any others, his seemingly impaired state,

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the strong odor of alcohol on his person, and the other 

information conveyed by 911 and deputies at the scene, Defendant 

Hanks possessed arguable probable cause to believe that Curry 

had committed a crime. “Arguable probable cause does not require 

an arresting officer to prove every element of a crime . . . 

before making an arrest, which would negate the concept of 

probable cause and transform arresting officers into 

prosecutors. We have no clearly established law that places such 

a burden on . . . the arresting officer.” Scarbrough, 245 F.3d 

at 1302-03 (11th Cir. 2001). Thus, Curry’s argument that his 

arrest was unlawful because Hanks did not sufficiently 

investigate the crime prior to arresting him is without merit. 

Curry further alleges that the DUI charge was eventually 

dismissed because “the DA said Trooper Hanks did not have any 

proof or eviden[ce] to support the charges,” and Curry contends 

that if Trooper Hanks had been doing his job correctly, “all of 

this would not have happened.” 4 (Doc. 31 at 2). However, 

“[t]hat a defendant is subsequently acquitted or charges are 

dropped against the defendant is of no consequence in 

determining the validity of the arrest itself.” Marx, 905 F.2d 

at 1507; see Baker v. McCollan, 443 U.S. 137, 145, 99 S. Ct. 

 

4 The undersigned notes that Defendant Hanks counters that 

the September 1, 2012 DUI charge was only dismissed as part of a 

plea arrangement in relation to Curry’s earlier DUI charge, for 

which he was convicted. (Doc. 27-7)). 

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2689, 2695, 61 L. Ed. 2d 433 (1979)(“The Constitution does not 

guarantee that only the guilty will be arrested. If it did, § 

1983 would provide a cause of action for every defendant 

acquitted -- indeed, for every suspect released.”); Draper v. 

United States, 358 U.S. 307, 312 n.4, 79 S. Ct. 329, 332 n.4, 3 

L. Ed. 2d 327 (1959)(“[T]he ‘reasonable cause’ necessary to 

arrest cannot demand the same strictness of proof as the 

accused's guilt upon a trial, unless the powers of peace 

officers are to be so cut down that they cannot possibly perform 

their duties.")(quoting United States v. Heitner, 149 F.2d 105, 

106 (2d Cir. 1945)). Accordingly, Curry’s argument that his 

arrest was unlawful because the charge was later dismissed is 

also lacking in merit. 

Lastly, Curry argues that Defendant Hanks arrested him 

because of their negative interaction three months prior to his 

September 2012 DUI arrest. (Doc. 31 at 2). The law is clear 

that an arresting officer’s subjective intentions, state of 

mind, and personal motivation are not relevant to the 

determination of whether probable cause existed for an arrest. 

U.S. v. Holloman, 113 F.3d 192, 194 (llth Cir. 1997)(proof of 

“ulterior motives” does not “invalidate police conduct that is 

justified on the basis of probable cause.”). “The [arguable 

probable cause] standard is an objective one and does not 

include an inquiry into the officer’s subjective intent or 

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beliefs.” Grider v. City of Auburn, Ala., 618 F. 3d 1240, 1257 

(llth Cir. 2010); See Bloom v. Alvereze, 498 Fed. Appx. 867, 880 

(llth Cir. 2012)(“While the Blooms allege that Officer Peacock 

acted out of personal animosity in her attempt to ruin Mr. 

Bloom, these bare allegations of malice do not prevent a finding 

of arguable probable cause.”). Accordingly, Curry’s assertion 

of ill will or bad motive is not sufficient to defeat Defendant 

Hanks’ entitlement to qualified immunity where under the 

undisputed facts of this case, Defendant Hanks possessed at 

least arguable probable cause that Curry had violated the law at 

the time of Curry’s arrest for DUI on September 1, 2012. 

IV. CONCLUSION

For the reasons set forth above, the undersigned concludes 

that Defendant Todd Hanks is entitled to summary judgment. 

Accordingly, it is recommended that Defendant’s Motion for 

Summary Judgment be GRANTED, that this action be DISMISSED with 

prejudice, and that judgment be entered in favor of Defendant 

Todd Hanks and against Plaintiff Albert Curry.

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. § 

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636(b)(1); FED.R.CIV.P. 72(b); S.D. ALA. GenLR 72(c). The parties 

should note that under Eleventh Circuit Rule 3-1, “[a] party 

failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th 

Cir. R. 3-1. 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 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 2nd day of February, 2016.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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