IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ISAAC DAVIS, :

Plaintiff, :

vs. : CA 15-0138-KD-C

DANIEL L. MCCARTHY, et al., :

Defendants.

REPORT AND RECOMMENDATION

This cause is before the Magistrate Judge for issuance of a report and 

recommendation, pursuant to 28 U.S.C. § 636(b), on plaintiff’s complaint (Doc. 1) and 

motion to amend complaint (Docs. 21 & 24), defendant Melvin Jones’ motion to dismiss

(Doc. 13; see also Doc. 14), the motion to dismiss filed by Lorenzo Matthews, III and 

Daniel L. McCarthy (Doc. 17; see also Doc. 18), the motion to dismiss and incorporated 

memorandum of law filed by the City of Mobile (Doc. 19), the defendants’ objections to 

plaintiff’s motion to amend complaint (Docs. 26-28), the plaintiff’s responses in 

opposition to the motions to dismiss (Docs. 31-33),

1 and the defendants’ replies (Docs. 

 1 Plaintiff has also filed a notice of objection to defendants’ Exhibits A & B. (See 

Doc. 30.) The exhibits to which plaintiff objects consist of documents contained in records 

retained and/or generated by the Municipal Court of Mobile County, Alabama or the Circuit 

Court of Mobile County, Alabama, and attached to the motion to dismiss filed by Daniel 

McCarthy and Lorenzo Matthews. (Compare id. with Doc. 18, Exhibits A & B.) Plaintiff objects to 

the state-court documents supplied by Matthews and McCarthy, claiming these documents are 

not relevant in this case. (See Doc. 30, at 1-4.) The undersigned DISAGREES with the plaintiff’s 

assessment and RECOMMENDS that the Court overrule plaintiff’s objections and take judicial 

notice of the relevant facts contained in those documents, as set forth in the findings of fact that 

follow. Compare McDowell Bey v. Vega, 588 Fed.Appx. 923, 926 (11th Cir. Oct. 17, 2014) 

(recognizing the propriety of the district court taking judicial notice of facts gleaned from state 

criminal docket sheets) with FED.R.EVID. 201(c)-(d) (allowing court to take judicial notice of a fact 

at any stage of the proceeding) and Long v. Slaton, 508 F.3d 576, 578 n.3 (11th Cir. 2007) 

(Continued)

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34-37). Upon consideration of the foregoing pleadings, the Magistrate Judge 

recommends that the Court GRANT the defendants’ motions to dismiss (Docs. 13, 17 & 

19) and DENY the motion to amend (Doc. 24; see also Doc. 21) on the basis of futility.

FINDINGS OF FACT

On the night of June 14, 2014, Isaac Davis was driving home and was stopped by 

a City of Mobile patrol car occupied by two police officers, Daniel McCarthy and 

Lorenzo Matthews. (Doc. 1, ¶¶ 9, 10 & 12.) McCarthy ran towards plaintiff’s vehicle, 

“snatched” open the driver’s side door, and ordered plaintiff out of his vehicle. (Id. at ¶ 

13.) The officers then—over plaintiff’s objections—coerced him from his vehicle and 

began searching him2 as they concomitantly handcuffed him. (Doc. 1, at ¶¶ 18-19.) 

According to plaintiff, the officers at no time requested his license, registration or proof 

of insurance; produced no search or arrest warrant; and did not inform him of his 

Miranda rights or that he was under arrest. (Id. at ¶¶ 14-16.)3 Curiously, however, 

 

(“Although we rely on the ordinary meaning of the term ‘cruiser’ as a marked police patrol 

vehicle, this fact (which no one has disputed) is directly supported by an investigative report 

from the Alabama Bureau of Investigation, which Plaintiffs submitted to the district court as an 

attachment to Plaintiffs’ Brief in Opposition to Defendants’ Motion to Dismiss. The report 

indicates that the vehicle was a marked sheriff’s cruiser complete with county tags, a flashing 

light bar on the roof, two police radios, and other emergency equipment. At the 12(b)(6) stage, 

we ‘primarily consider the allegations in the complaint,’ but ‘[t]he court is not [always] limited 

to the four corners of the complaint.’ . . . Because Plaintiffs submitted the investigative report in 

opposing Defendants’ motion to dismiss and because the document’s authenticity and veracity 

are in this case unchallenged, we look to the report to confirm that the ordinary meaning of 

‘cruiser’ applies as an undisputed fact for Deputy Stanton’s sheriff’s cruiser.”), cert. denied, 555 

U.S. 1069, 129 S.Ct. 725, 172 L.Ed.2d 725 (2008). 

2 While set forth in his paragraph setting forth his state-law claims, Davis alleges 

that during the search of his person McCarthy and Matthews initiated “unwanted homosexual 

offensive bodily contact” by touching his buttocks and groin area. (Compare Doc. 1, at ¶ 40 with 

Doc. 24, Exhibit 2, at ¶ 55.)

3 At some point during the stop and arrest, defendant Melvin Jones arrived on the 

scene and “made no attempt to deter his subordinates from the unlawful arrest & trespass 

against plaintiff.” (Id. at ¶ 20.) 

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plaintiff admits (and the officers fully appreciated) that he had “NO identification on 

his person[] & refused to give his name without cause until he was THREATENED by 

Matthews.” (Id. at ¶ 21 (emphasis in original).) Moreover, despite Davis’ allegation that 

the officers never informed him he was under arrest (id. at ¶ 16), he certainly perceived 

that he was under arrest because he was in handcuffs, placed in the patrol car and 

“repeatedly demanded to be taken before a neutral judge or magistrate to know the 

nature & cause of his arrest.” (Id. at ¶ 22.) While the officers did drive by the 

magistrate’s office, according to plaintiff, only McCarthy got out of the police vehicle 

and entered the office; Matthews continued to drive plaintiff to the Mobile County 

Metro Jail, where he was booked. (See id. at ¶ 23.) Davis was ultimately released from 

prison on June 16, 2014. (Id. at ¶ 25.) 

Although these are the only readily discernable “facts” from plaintiff’s initial 

complaint (Doc. 1), plaintiff attached to his complaint an affidavit which elucidates the 

circumstances of his arrest on the night of June 14, 2014—most of which have been 

incorporated in plaintiff’s proposed amended complaint (see Doc. 24, Exhibit 2, at ¶¶ 13-

15 & 29-31)—and, therefore, the undersigned sets forth these facts as if plaintiff had 

articulated them in his original complaint, particularly since plaintiff’s affidavit (along 

with other attached exhibits) is referenced in the complaint (see Doc. 1, at 4 & 5).

4. That affiant saw & heard McCarthy run toward his private 

automobile, snatch affiant’s door open & say “GET THE FUCK OUT OF 

THE CAR!”

5. That affiant then replied, “For what?”

6. Affiant then saw & heard McCarthy yell, “MAN, GET YOUR 

ASS OUT OF THE CAR! YOU’RE GOING TO JAIL!”

7. Affiant then saw & felt Matthews pull affiant’s left shoulder.

8. Affiant then sees McCarthy & Matthews search his person.

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9. Affiant then sees McCarthy & Matthews handcuff him.

10. Affiant neither had identification in his private automobile 

nor on his person.

11. Affiant then saw & heard Matthews say to affiant “If you 

don’t give me your name, I’m going to tow your car.”

12. Affiant was then placed in the back seat of the police vehicle.

13. Affiant then saw & heard Jones say to affiant “when an 

officer tells you to get out of the car, you get out!”

14. That after affiant was arrested the police vehicle remained 

stationed on Ann Street for at least forty minutes ALTHOUGH affiant 

repeatedly demanded to be taken before a neutral judge or magistrate.

15. Affiant then saw & heard McCarthy crank the police vehicle 

& drive it to the magistrate office located on 120 Palmetto Street Mobile, 

Alabama 36603.

16. Affiant then upon arriving at the magistrate’s office saw & 

heard McCarthy say “Here’s the magistrate’s office.”

17. Affiant then replied “Ok, take me inside!”

18. Affiant then saw & heard McCarthy say “No!” then started 

laughing.

(Doc. 1, Affidavit of Isaac Davis in Support of Complaint, at ¶¶ 4-18.) 

The only other discernable facts contained in plaintiff’s proposed amendment, 

which are not set forth in the original complaint and attached affidavit, are that when 

Davis saw Jones on the scene observing his arrest, he asked Matthews “’Why are y’all 

doing this to me, what did I do?’” (Doc. 24, Exhibit 2, ¶ 24; see also id. at ¶ 23.) According 

to plaintiff, Matthews’ response consisted of the following: “‘because you don’t have a 

tag light!’”4 (Id. at ¶ 25.)5 As set forth in the attachments to the motion to dismiss filed 

 4 Plaintiff also states he sent the City of Mobile three notices over a ninety-day 

period regarding the officers’ misconduct and received no response from the City. (See id. at ¶¶ 

36-37.)

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by McCarthy and Matthews, Davis received a citation on June 14, 2014 for violating § 

32-5-240(c)

6 of the Alabama Code by having no (or an impaired) tag light. (Doc. 18, 

Exhibit B.) 

In addition to the foregoing, it is clear that Davis was arrested on June 14, 2014, 

and booked into the Mobile Metro Jail, on charges of failing to obey a police order, 

resisting arrest, and disorderly conduct (Doc. 18, Exhibit A, at 11)—complaints on the 

foregoing charges were sworn out against Davis by Officer Matthews on June 15, 2014, 

as witnessed by a magistrate (id. at 6, 8 & 10)—charges to which plaintiff entered guilty 

pleas on June 16, 20147 before a Municipal Court Judge and was ordered to pay costs 

and fines totaling some $848.00 (see id. at 5, 7, 9, 15-17 & 21).8

Davis claims that McCarthy and Matthews violated his Fourth, Fifth and 

Fourteenth Amendment rights by unlawfully seizing/arresting, searching and 

imprisoning his person in absence of probable cause and an immediate probable cause 

hearing and in utilizing excessive force in accomplishing his arrest. (Compare Doc. 1, ¶¶ 

 

5 As explained, infra, because these additional facts do not change the contents of 

this report and recommendation, any amendment by Davis would be futile and, accordingly, it 

should be DISALLOWED. 

6 “Every motor vehicle shall have a tail lamp or a separate lamp so constructed 

and placed as to illuminate with a white light the rear registration plate and render it clearly 

legible from a distance of 50 feet to the rear. Any tail lamp or tail lamps, together with any 

separate lamp for illuminating the rear registration plate, shall be so wired as to be lighted 

whenever the head lamps or auxiliary driving lamps are lighted.” ALA. CODE § 32-5-240(c)(3). 

7 At the time of the entry of his guilty pleas, Davis waived his right to the 

assistance of counsel. (Id. at 12-14.) Some two weeks later, on July 1, 2014, Davis filed a motion 

to withdraw his guilty pleas; however, Municipal Judge Carol Little denied the motion to 

withdraw on July 11, 2014. (See id. at 31-32.) 

8 Davis was initially ordered to pay all costs and fines by July 23, 2014 (see id. at 5, 

7, 9 & 21); however, on July 31, 2014, Davis was ordered “to pay his fines and court costs at the 

rate of $30 per month, commencing September 1, 2014.” (Id. at 27.) 

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39 & 42 with Doc. 24, Exhibit 2, at ¶¶ 54 & 57.) In addition, plaintiff has asserted state 

law claims against the arresting officers for trespass, assault and battery, false arrest, 

and false imprisonment. (Compare Doc. 1, ¶ 40 with Doc. 24, Exhibit 2, ¶ 55.) As for 

Sergeant Melvin Jones, plaintiff asserts a 42 U.S.C. § 1983 supervisory liability claim. 

(Compare Doc. 1, ¶ 41 with Doc. 24, Exhibit 2, at ¶ 56.) Finally, Davis asserts a § 1983 

claim against the City of Mobile based upon its maintenance of a policy or custom of 

failing to properly train, supervise, control or correct the unlawful use of authority and 

excessive force by its police officers (as claimed above) and/or its ratification of such 

unlawful conduct. (Compare Doc. 1, ¶ 43 with Doc. 24, Exhibit 2, at ¶ 58.)

CONCLUSIONS OF LAW

A. Motion to Amend.

Plaintiff has sought leave of court to file an amended complaint (Doc. 24; see Doc. 

21 (proposed amended not attached to plaintiff’s original request)), to which all of the 

named defendants have interposed objection (see Docs. 26-28). 

While there can be little question but that leave to amend under Rule 15 should 

be given “when justice so requires[,]” FED.R.CIV.P. 15(a)(2), it is just as axiomatic that 

leave to amend under Rule 15 “is not automatic.” Girard v. Aztec RV Resort, Inc., 2011 

WL 7962612, *5 (S.D. Fla. Oct. 4, 2011) (citations omitted). As this Court has noted,

[t]he law of this Circuit is clear that “a district court may properly deny 

leave to amend the complaint under Rule 15(a) when such amendment 

would be futile.” Hall v. United Ins. Co. of America, 367 F.3d 1255, 1263 

(11th Cir. 2004); see also Williams v. Board of Regents of University System of 

Georgia, 477 F.3d 1282, 1292 n.6 (11th Cir. 2007) (same). “When a district 

court denies the plaintiff leave to amend a complaint due to futility, the 

court is making the legal conclusion that the complaint, as amended, 

would necessarily fail.” St. Charles Foods, Inc. v. America’s Favorite Chicken 

Co., 198 F.3d 815, 822-23 (11th Cir.1999). The futility threshold is akin to 

that for a motion to dismiss; thus, if the amended complaint could not 

survive Rule 12(b)(6) scrutiny, then the amendment is futile and leave to 

amend is properly denied. See, e.g., Burger King Corp. v. Weaver, 169 F.3d 

1310, 1320 (11th Cir. 1999) (denial of leave to amend justified by futility 

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when “complaint as amended is still subject to dismissal”); Florida Power & 

Light Co. v. Allis Chalmers Corp., 85 F.3d 1514, 1520 (11th Cir. 1996) 

(amendment is futile if cause of action asserted therein could not 

withstand motion to dismiss); Amick v. BM & KM, Inc., 275 F.Supp.2d 

1378, 1381 (N.D. Ga. 2003) (“In the Eleventh Circuit, a proposed 

amendment is futile when the allegations of the proffered complaint 

would be unable to withstand a motion to dismiss.”).

Bill Salter Advertising, Inc. v. City of Brewton, Ala., 2007 WL 2409819, *2 (S.D. Ala. Aug.

23, 2007); see also Hearn v. International Business Machines, 588 Fed.Appx. 954, 958 (11th

Cir. 954, 958 (11th Cir. Oct. 23, 2014)9 (“Though a party ordinarily must be given at least 

one opportunity to amend [his] complaint, the district court ‘need not “allow an 

amendment . . . where amendment would be futile.”’ . . . A proposed amendment is 

futile ‘when the complaint as amended would still be properly dismissed.’”); 

Christman v. Walsh, 416 Fed.Appx. 841, 844 (11th Cir. Mar. 2, 2011) (per curiam) (“A 

district court may deny leave to amend a complaint if it concludes that the proposed 

amendment would be futile, meaning that the amended complaint would not survive a 

motion to dismiss.”), cert. denied, U.S. , 132 S.Ct. 319, 181 L.Ed.2d 197 (2011). As 

explained more fully, infra, the factual allegations against the named defendants in the 

proposed amended complaint, affixed to the motion for leave (Doc. 24-2), and 

delineated hereinabove, would not survive a challenge under Rule 12(b)(6); therefore, 

the undersigned RECOMMENDS that the pro se plaintiff’s motion for leave to file 

amended complaint (Doc. 24; see also Doc. 21) be DENIED as futile.

B. Motion to Dismiss Standard.

 9 “Unpublished opinions are not considered binding precedent, but they may be 

cited as persuasive authority.” 11th Cir. R. 36-2.

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Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant 

may move to dismiss a complaint on the basis that the plaintiff has failed to state a 

claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) 

motion questions the legal sufficiency of a complaint (or portions of a complaint); 

therefore, in assessing the merits of a Rule 12(b)(6) motion, the court must assume that 

all the factual allegations set forth in the complaint are true. See, e.g., United States v. 

Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 

914 F.2d 1459, 1463 (11th Cir. 1990). Moreover, all factual allegations are to be construed 

in the light most favorable to the plaintiff. See, e.g., Brower v. County of Inyo, 489 U.S. 593, 

598, 109 S.Ct. 1378, 1382, 103 L.Ed.2d 628 (1989).

Rule 8(a)(2) generally sets the benchmark for determining whether a complaint’s 

allegations are sufficient to survive a Rule 12(b)(6) motion. See Ashcroft v. Iqbal, 556 U.S.

662, 677-678 & 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“Under Federal Rule of 

Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the 

claim showing that the pleader is entitled to relief.’ As the Court held in Twombly, . . . 

the pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ 

but it demands more than an unadorned, the defendant-unlawfully-harmed-me 

accusation.”). Indeed, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic 

recitation of the elements of a cause of action will not do.’” Id. at 678, 129 S.Ct. at 1949, 

quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-1965, 167 

L.Ed.2d 929 (2007). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ 

devoid of ‘further factual enhancement.’” Id., quoting Twombly, 550 U.S. at 557, 127 S.Ct. 

at 1955.

To survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to state a claim to relief that is plausible 

on its face. A claim that has facial plausibility when the plaintiff pleads 

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factual content that allows the court to draw the reasonable inference that 

the defendant is liable for the misconduct alleged. The plausibility 

standard is not akin to a probability requirement, but it asks for more than 

a sheer possibility that a defendant has acted unlawfully. Where a 

complaint pleads facts that are merely consistent with a defendant’s 

liability, it stops short of the line between possibility and plausibility of 

entitlement to relief.

Two working principles underlie our decision in Twombly. First, the 

tenet that a court must accept as true all of the allegations contained in a 

complaint is inapplicable to legal conclusions. Threadbare recitals of the 

elements of a cause of action, supported by mere conclusory statements, 

do not suffice. Rule 8 marks a notable and generous departure from the 

hyper-technical, code-pleading regime of a prior era, but it does not 

unlock the doors of discovery for a plaintiff armed with nothing more 

than conclusions. Second, only a complaint that states a plausible claim for 

relief survives a motion to dismiss. Determining whether a complaint 

states a plausible claim for relief will . . . be a context-specific task that 

requires the reviewing court to draw on its judicial experience and 

common sense. But where the well-pleaded facts do not permit the court 

to infer more than the mere possibility of misconduct, the complaint has 

alleged–but it has not show[n]–that the pleader is entitled to relief.

Id. at 678-679, 129 S.Ct. at 1949-1950 (internal citations and quotation marks omitted); see 

also id. 680, 129 S.Ct. at 1951 (a plaintiff must nudge his claims “‘across the line from 

conceivable to plausible.’”); see Speaker v. U.S. Dep’t of Health & Human Services Centers 

for Disease Control & Prevention, 623 F.3d 1371, 1381 (11th Cir. 2010) (“[G]iven the 

pleading standards announced in Twombly and Iqbal, [plaintiff] must do more than 

recite [] statutory elements in conclusory fashion. Rather, his allegations must proffer 

enough factual content to ‘raise a right to belief above the speculative level.’”); 

Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009) (“Although it must 

accept well-pled facts as true, the court is not required to accept a plaintiff’s legal 

conclusions. In evaluating the sufficiency of a plaintiff’s pleadings, we make reasonable 

inferences in [p]laintiff’s favor, but we are not required to draw plaintiff’s inference. 

Similarly, unwarranted deductions of fact in a complaint are not admitted as true for 

the purpose of testing the sufficiency of plaintiff’s allegations. A complaint may be 

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dismissed if the facts as pled do not state a claim for relief that is plausible on its face.” 

(internal citations and quotation marks omitted)), abrogated on other grounds as stated in 

Mohamad v. Palestinian Auth., U.S. , 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012).

C. The Defense of Qualified Immunity as it Relates to Plaintiff’s Fourth, 

Fifth and Fourteenth Amendment Claims10 Asserted Against McCarthy and 

Matthews. McCarthy and Matthews contend that they are entitled to qualified 

immunity on the individual capacity11 claims asserted by Davis, it being undisputed 

that they were acting within the line and scope of their authority (compare Doc. 1, ¶¶ 5 &

6 (alleging McCarthy was a police officer acting in that capacity on the date in question 

and that Matthews was a police corporal acting in such capacity on the date in question) 

with Doc. 24, Exhibit 2, at ¶¶ 5 & 6 (same)),12 and it being their contention that they did 

not violate any clearly established rights of the plaintiff (see, e.g., Doc. 18, at 8-11).

 10 As explained in more detail, infra, ns. 16 & 21, plaintiff’s Fifth and Fourteenth 

Amendment “claims” against McCarthy and Matthews simply amount to another Fourth 

Amendment claim. See McLaughlin, infra.

11 Davis has also sued McCarthy and Matthews, as well as defendant Melvin Jones, 

in their official capacities (compare Doc. 1, at ¶¶ 5-7 with Doc. 24, Exhibit 2, ¶¶ 5-7), while at the 

same time suing the City of Mobile (compare Doc. 1, at ¶ 8 with Doc. 24, Exhibit 2, at ¶ 8). 

Because “[t]here is no longer a need to bring official-capacity actions against local government 

officials,” Kentucky v. Graham, 473 U.S. 159, 167 n.14, 105 S.Ct. 3099, 3106 n.14, 87 L.Ed.2d 114 

(1985), since such suits, “in all respects other respects other than name, [are] to be treated as a 

suit against the entity[,]” id. at 166, 105 S.Ct. at 3105 (citation omitted), and Davis has named the 

City of Mobile as a defendant (see, e.g., Doc. 1, ¶ 8) in this action, the official-capacity claims 

asserted against McCarthy, Matthews, and Jones are redundant to the claims asserted against 

the City of Mobile and, therefore, should be DISMISSED, see Busby v. City of Orlando, 931 F.2d 

764, 776 (11th Cir. 1991). 

12 To the extent plaintiff’s complaint fails to adequately “admit” that McCarthy and 

Matthews were acting within the scope of their discretionary authority when the alleged 

wrongful acts occurred, it is clear that “’discretionary authority’ includes all actions of a 

government official that (1) ‘were undertaken pursuant to the performance of his duties,’ and 

(2) were ‘within the scope of his authority[,]’” Griswold v. Alabama Dep’t of Industrial Relations, 

903 F.Supp. 1492, 1498 (M.D. Ala. 1995) (citations omitted), and there can be little question but 

that making traffic stops and arrests fall within the official responsibilities of a police officer, 

compare Burnett v. Unified Government of Athens-Clarke County, Georgia, 395 Fed.Appx. 567, 568 

(Continued)

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Some thirty-three years ago in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 

L.Ed.2d 396 (1982), the Supreme Court 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.” Id. at 818, 102 S.Ct. at 2738. Moreover, 

some three years later the Supreme Court reiterated in Mitchell v. Forsyth, 472 U.S. 511, 

105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), that “[u]nless the plaintiff’s allegations state a 

claim of violation of clearly established law, a defendant pleading qualified immunity is 

entitled to dismissal before the commencement of discovery.” Id. at 526, 105 S.Ct. at 

2815, citing Harlow, supra, 457 U.S. at 818, 102 S.Ct. at 2738; see also Gonzalez v. Reno, 325 

F.3d 1228, 1233 (11th Cir. 2003) (“It is [] appropriate for a district court to grant the 

defense of qualified immunity at the motion to dismiss stage if the complaint ‘fails to 

allege the violation of a clearly established constitutional right.’”). 

As indicated above, there is no question but that McCarthy and Matthews were 

at all times relevant hereto acting within their discretionary authority, and, therefore, 

the undersigned turns to plaintiff’s complaint, and proposed amended complaint, to 

determine whether McCarthy and Matthews “committed a constitutional violation and 

[] [whether] the constitutional right the defendant violated was ‘clearly established’ at 

the time he did it.” Christman v. Pietrzak, supra, 296 Fed.Appx. at 786, quoting Crosby v. 

 

(11th Cir. 2010) (“The official responsibilities of a police officer on patrol including making 

traffic stops and arresting people who are suspected of committing traffic violations.”) with 

Christman v. Pietrzak, 296 Fed.Appx. 783, 786 (11th Cir. 2008) (“Making an arrest is clearly within 

the official responsibilities of a police officer.”). Given that plaintiff’s claims against McCarthy 

and Matthews stem from their stop of his vehicle and subsequent arrest of his person, it is clear 

that these defendants were acting within the scope of their discretionary authority when the 

alleged violations occurred.

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Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004). The undersigned now focuses on 

the federal claims asserted by Davis against McCarthy and Matthews.

Unlawful Arrest/Seizure, Search and Imprisonment in Absence of Probable 

Cause and a Probable Cause Hearing. Plaintiff’s principal claim in this matter is that he 

was falsely arrested/seized, searched, and imprisoned absent probable cause or an 

immediate probable cause hearing. The Fourth Amendment, of course, recognizes the 

right of all individuals, like Davis, to be free from “unreasonable searches and 

seizures[.]” U.S. CONST. amend. IV.13 The undersigned recommends that the Court find 

that dispositive of the issue of whether Davis has established a constitutional violation 

by McCarthy and Matthews of his Fourth Amendment rights is whether his factual 

allegations establish that these officers lacked “’arguable probable cause for an 

arrest[.]’” Christman, supra, 296 Fed.Appx. at 786; cf. id. (“The district court correctly 

characterizes ‘arguable probable cause’ as dispositive to questions of both Pietrzak’s 

claim of qualified immunity and Christman’s Fourth Amendment rights. . . . It is well 

established in our circuit that when there is ‘arguable probable cause for an arrest,’ 

‘qualified immunity applies’ ‘even if actual probable cause did not exist.’”).14 Properly 

 13 “In Fourth Amendment terminology, an arrest is a seizure of the person[.]” Skop 

v. City of Atlanta, Georgia, 485 F.3d 1130, 1137 (11th Cir. 2007) (citation omitted). Moreover, since 

false arrest is a species of false imprisonment, see Wallace v. Kato, 549 U.S. 384, 388 & 389, 127 

S.Ct. 1091, 1095, 166 L.Ed.2d 973 (2007) (“False arrest and false imprisonment overlap; the 

former is a species of the latter. . . . We shall thus refer to the two torts together as false 

imprisonment.”), any finding by the undersigned directed to plaintiff’s claim of false arrest is 

also directed to his false imprisonment claim.

14 In truth, it appears to the undersigned, based on the facts alleged in the 

complaint, that McCarthy and Matthews had probable cause to arrest plaintiff for failing to 

obey the order to exit his vehicle, which constitutes an absolute bar to plaintiff’s § 1983 action 

for false arrest, search, and imprisonment. Compare Case v, Eslinger, 555 F.3d 1317, 1326-1327 

(11th Cir. 2009) (“A warrantless arrest without probable cause violates the Constitution and 

provides a basis for a section 1983 claim, but the existence of probable cause at the time of arrest 

. . . constitutes an absolute bar to a section 1983 action for false arrest.” (internal quotation 

(Continued)

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viewed, plaintiff’s allegations do not begin to suggest (factually as opposed to 

conclusorily15) that McCarthy and Matthews lacked arguable probable cause to arrest 

him as Davis specifically avers that he had no identification on his person or in his 

automobile and that he initially rebuked McCarthy’s order for him to get out of his 

vehicle by saying, “For what?” Plaintiff’s admitted recalcitrance in this regard 

prompted the officers to take actions to “assist” plaintiff’s exit from his vehicle and then 

performed a search of his person while concomitantly cuffing him. Since one of the 

reasons Davis was arrested on the night of June 14, 2014 is because of his failure to obey 

an order, and in accordance with Alabama law an officer may arrest a person without a 

warrant if an offense is committed in the officer’s presence, ALA.R.CRIM.P. 4.1(a)(1)(ii), 

McCarthy and Matthews are entitled to qualified immunity as to plaintiff’s claims 

 

marks and brackets omitted)) with Wood v. Kesler, 323 F.3d 872, 878 (11th Cir.) (“’For probable 

cause to exist, . . . an arrest must be objectively reasonable based on the totality of the 

circumstances.’ . . . ‘This standard is met when the facts and circumstances within the officer’s 

knowledge, of which he or she has reasonably trustworthy information, would cause a prudent 

person to believe, under the circumstances, shown, that the suspect has committed, is 

committing, or is about to commit an offense.’”), cert. denied, 540 U.S. 879, 124 S.Ct. 298, 157 

L.Ed.2d 143 (2003). Indeed, the existence of probable cause is bolstered by Davis’ guilty plea to 

the charges of failure to obey an order, resisting arrest, and disorderly conduct. See, e.g., 

Corrigan v. Kron, 2013 WL 6478335, *6 (E.D. Wash. Dec. 10, 2013) (“Further bolstering the Court’s 

finding of probable cause is Corrigan’s ultimate conviction of the crime for which he was 

arrested: failure to stop for a police officer.”). Nevertheless, even if McCarthy and Matthews did 

not have sufficient probable cause to arrest Davis on June 14, 2014, it is clear to the undersigned

that arguable probable cause for an arrest existed and that the arresting officers are, therefore, 

entitled to dismissal of these claims on the basis of qualified immunity. See Brown v. Ridgway, 

845 F.Supp.2d 1273, 1278 (M.D. Fla. 2012) (“[E]ven if Brazeau and McNeil did not have 

sufficient probable cause to arrest Plaintiff, a finding not made by this Court, the standard to be 

applied is whether ‘reasonable officers in the same circumstances and possessing the same 

knowledge as the defendants could have believed that probable cause existed to arrest.’” 

(emphasis in original)).

15 “More than mere conclusory notice pleading is required. A complaint will be 

dismissed as insufficient where the allegations it contains are vague and conclusory. . . . 

Unsupported conclusions of law or mixed fact and law have long been recognized not to 

prevent a Rule 12(b)(6) dismissal.” Gonzalez, supra, 325 F.3d at 1235 (internal quotation marks, 

ellipses, brackets and citations omitted). 

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14

related to his arrest, search and imprisonment, see Brown v. City of Huntsville, Alabama, 

608 F.3d 724, 735 (11th Cir. 2010) (“If the arresting officer had arguable probable cause 

to arrest for any offense, qualified immunity will apply.”);

16 plaintiff’s factual 

allegations do not establish that his Fourth Amendment rights were violated since there 

was arguable probable cause for his arrest for failure to obey an order, compare, e.g., 

Christman, supra, 296 Fed.Appx. at 787 (there is no Fourth Amendment violation where 

arguable probable cause exists for the arrest) with Case, supra, 555 F.3d at 1330 (§ 1983 

false imprisonment claim fails where arrest is supported by probable cause).17 Stated 

somewhat differently, based on the allegations of the complaint (as set forth in the 

original and proposed amended complaint), reasonable officers in the same 

circumstances and possessing the same knowledge as McCarthy and Matthews (that is, 

that plaintiff did not exit his vehicle when ordered but, instead, defied the order, and 

had nothing in the way of identification on his person or in his car) could have believed 

that probable cause existed to arrest plaintiff. See Lee v. Ferraro, 284 F.3d 1188, 1195 (11th 

 16 Moreover, the search of Davis’ person by Matthews and McCarthy does not give 

rise to a Fourth Amendment violation inasmuch as the “search-incident-to-arrest” doctrine 

allows “a police officer who makes a lawful arrest [to] conduct a warrantless search of the 

arrestee’s person and the area ‘within his immediate control.’” Davis v. United States, 131 S.Ct. 

2419, 2424, 180 L.Ed.2d 285 (2011) (citation omitted); see also Maryland v. King, 133 S.Ct. 1958, 

1970-1971, 186 L.Ed.2d 1 (2013) (“’The validity of the search of a person incident to a lawful

arrest has been regarded as settled from its first enunciation, and has remained virtually 

unchallenged.’ . . . Even in that context, the Court has been clear that individual suspicion is not 

necessary, because ‘[t]he constitutionality of a search incident to an arrest does not depend on 

whether there is any indication that the person arrested possesses weapons or evidence. The 

fact of a lawful arrest, standing alone, authorizes a search.’”). 

17 Plaintiff explicitly admits in his complaint that he was given an order by one of 

the officers to exit his vehicle and his other allegations admit of the fact that he did not comply 

with that order, prompting the officers to “aid” him in such compliance; therefore, the officers 

clearly had arguable probable cause to arrest Davis for failure to obey an order. Cf. Skop, supra, 

485 F.3d at 1141 (“[D]etermining whether Brown actually ever gave the order, and, if he did, 

whether he had reason to believe that Skop heard it is, on this highly disputed factual record, 

exactly the sort of factual, credibility-sensitive task best left to the jury.”)

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15

Cir. 2002) (defining arguable probable cause). Accordingly, Matthews and McCarthy 

are entitled to dismissal of plaintiff’s false/unlawful arrest/seizure, search, and 

imprisonment claims18 on the basis of qualified immunity.19

 18 Because McCarthy and Matthews had arguable probable cause to arrest Davis, 

Davis’ claim that the officers should have afforded him an immediate probable cause hearing is 

unavailing. While there can be no doubt that “the Fourth Amendment requires a prompt 

judicial determination of probable cause as a prerequisite to an extended pretrial detention 

following a warrantless arrest[,]” County of Riverside v. McLaughlin, 500 U.S. 44, 47, 111 S.Ct. 

1661, 1665, 114 L.Ed.2d 49 (1991), citing Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 

(1975), the Supreme Court made clear in McLaughlin that prompt does not mean immediate, 500 

U.S. at 54, 111 S.Ct. at 1669 (emphasis supplied), and, more specifically, “the Fourth 

Amendment does not compel an immediate determination of probable cause upon completing 

the administrative steps incident to arrest.” Id. at 53-54, 111 S.Ct. at 1668; see also id. at 54, 111 

S.Ct. at 1668 (“[I]f a probable cause hearing is constitutionally compelled the moment a suspect 

is finished being ‘booked,’ there is no room whatsoever for ‘flexibility and experimentation by 

the States.’” (citation omitted)). The Supreme Court specifically held in McLaughlin that “a 

jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest 

will, as a general matter, comply with the promptness requirement of Gerstein.” Id. at 56, 111 

S.C.t. at 1670. The 48-hour rule recognized in McLaughlin was adopted by Alabama, compare 

Hardeman v. State, 651 So.2d 59, 68 (Ala.Crim.App. 1994) (noting that the 48-hour rule set forth 

in Rule 4.3(a)(1)(iii) of the Alabama Rules of Criminal Procedure “originated in County of 

Riverside v. McLaughlin[.]”) with ALA.R.CRIM.P. 4.3(a)(1)(iii) (“A person arrested without a 

warrant . . . [s]hall be afforded an opportunity to make bail in accordance with Rules 4.3(b)(3) 

and 4.4. . . . If a probable cause determination is not made by a judge or magistrate without 

undue delay, and in no event later than forty-eight (48) hours after arrest, then, unless the 

offense for which the person was arrested is not a bailable offense, the person shall be released 

upon execution of an appearance bond in the amount of the minimum bond set in Rule 7.2 . . . 

.”), and in this case the evidence clearly establishes that Davis appeared before a municipal 

judge within forty-eight (48) hours of his arrest, in accordance with Alabama law, pled guilty to 

all charges which informed his arrest, and was released. Thus, plaintiff’s suggestion that 

McCarthy and Matthews violated his Fourth, Fifth and Fourteenth Amendment rights by failing 

to provide him with an immediate probable cause hearing between 9:00 p.m. and 10:00 p.m. on 

June 14, 2014, fails to state a claim because McLaughlin establishes that an individual in 

plaintiff’s shoes is not constitutionally entitled to an immediate probable cause hearing, only a 

prompt probable cause hearing. As aforesaid, plaintiff was promptly taken before a municipal 

judge on June 16, 2014, less than 48 hours after his arrest by Matthews and McCarthy, and at 

that time pled guilty to the charges of failing to obey an order, disorderly conduct, and resisting 

arrest. Because the failure of McCarthy and Matthews to immediately take Davis to a municipal 

judge or magistrate for a probable cause hearing on the night of June 14, 2014 (before he was 

booked, plaintiff’s complaint containing no allegations that he requested the officers to take him 

to a magistrate or municipal judge following booking procedures) violated no clearly 

established constitutional rights of plaintiff, the officers are entitled to qualified immunity and 

dismissal of plaintiff’s Fourth, “Fifth,” and “Fourteenth” Amendment claims in this regard. 

19 The arresting officers, Sgt. Jones, and the City of Mobile are entitled to dismissal 

of any claim by Davis directed to the alleged failure of McCarthy and Matthews to read plaintiff 

his Miranda warnings inasmuch as failure to give Miranda warnings is not a proper basis for 

(Continued)

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16

Even if McCarthy and Matthews lacked arguable probable to arrest, search and 

imprison Davis, plaintiff’s Fourth Amendment claim(s) in this regard are still due to be 

dismissed in accordance with Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 

L.Ed.2d 383 (1994). In Heck v. Humphrey, the Supreme Court held that 

in order to recover damages for allegedly unconstitutional conviction or 

imprisonment, or other harm caused by actions whose unlawfulness 

would render a conviction or sentence invalid, a § 1983 plaintiff must 

prove that the conviction or sentence has been reversed on direct appeal, 

expunged by executive order, declared invalid by a state tribunal 

authorized to make such determination, or called into question by a 

federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A 

claim for damages bearing that relationship to a conviction or sentence 

that has not been so invalidated is not cognizable under § 1983. Thus, 

when a state prisoner seeks damages in a § 1983 suit, the district court 

must consider whether a judgment in favor of the plaintiff would 

necessarily imply the invalidity of his conviction or sentence; if it would, 

the complaint must be dismissed unless the plaintiff can demonstrate that 

the conviction or sentence has already been invalidated. But if the district 

court determines that the plaintiff’s action, even if successful, will not 

demonstrate the invalidity of any outstanding criminal judgment against 

the plaintiff, the action should be allowed to proceed, in the absence of 

some other bar to the suit.

Id. at 486-487, 114 S.Ct. at 2372-2373 (emphasis in original; footnotes omitted). Here, the 

undersigned takes judicial notice of the fact that Davis was convicted in Mobile 

Municipal Court on charges of failing to obey a police order, resisting arrest, and 

disorderly conduct and, further, Davis has made no showing that those convictions 

have been reversed on direct appeal or, otherwise, declared invalid or called into 

question. Focusing, in particular, on plaintiff’s conviction for failing to obey a police 

order, the undersigned recommends that this Court find, consistent with other federal 

 

recovery of money damages under § 1983. See Jones v. Cannon, 174 F.3d 1271, 1291 (11th Cir. 

1999) (“We agree with the Third, Seventh, Eighth, and Tenth Circuits that failing to follow 

Miranda procedures triggers the prophylactic protection of the exclusion of evidence, but does 

not violate any substantive Fifth Amendment right such that a cause of action for money 

damages under § 1983 is created.”). 

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17

courts, that a plaintiff who pleads guilty to failing to obey the lawful order of a police 

officer cannot state a cognizable § 1983 claim challenging the lawfulness of his arrest (or 

imprisonment) inasmuch as the finding of a Fourth Amendment violation concerning 

the plaintiff’s arrest (and imprisonment) would necessarily imply the invalidity of his 

conviction, a conviction which has not been reversed, invalidated, or expunged. See, e.g., 

Martin v. Girard, 215 F.3d 1327, 2000 WL 658326, *2 (6th Cir. May 12, 2000) (unpublished 

opinion) (“Because the Martins pleaded guilty to charges of failure to obey a lawful 

order of a traffic control officer, the portion of their Fourth Amendment claim 

concerning the lawfulness of their arrests is not cognizable under the rule of Heck v. 

Humphrey, 512 U.S. 477 (1994). A finding of a Fourth Amendment violation concerning 

the Martins’ arrests would necessarily imply the invalidity of their convictions; thus, 

their unlawful arrest claims are not cognizable under § 1983 because their convictions 

have not been reversed, expunged, or invalidated by any court.”); Mendez v. City of 

Scottsdale, Arizona, 2012 WL 3870364, *5 (D. Ariz. Sept. 6, 2012) (“As Plaintiff concedes in 

his Response, however, his conviction precludes him from bringing a Fourth 

Amendment claim for wrongful arrest or imprisonment.” [] Any judgment that Plaintiff 

was wrongfully arrested or imprisoned would necessarily imply that his conviction for 

failure to obey a police officer was invalid.”); Hastings v. Hubbard, 2006 WL 1705202, *9 

(S.D. Ohio Jun. 16, 2006) (“In the instant case, the success of Mr. Hastings’ Fourth 

Amendment challenges to his seizure and arrest would necessarily implicate the 

validity of his conviction [of failure to comply with the order of a police officer]. 

Consequently, his Fourth Amendment challenges to his seizure and arrest are not 

cognizable in the instant case.”); cf. Vickers v. Donahue, 137 Fed.Appx. 285, 2005 WL 

1519353, *5 (11th Cir. Jun. 28, 2005) (“[W]hile Vickers’s understanding of the law is 

correct—a § 1983 claim of improper arrest does not inevitably undermine the 

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18

conviction—the factual basis for Vickers’s claim does inevitably undermine his 

conviction. Therefore, we conclude that the district court properly found that Heck bars 

Vickers’s claims [for malicious and false arrest.]”). Again, in this case, it is clear to the 

undersigned that plaintiff’s Fourth Amendment challenges to his arrest and 

imprisonment would necessarily implicate the validity of his conviction for failure to 

obey the order of a police officer (as, in truth, it would with respect to his convictions 

for resisting arrest and disorderly conduct); therefore, his Fourth Amendment 

challenges to his seizure/arrest and imprisonment are not cognizable pursuant to § 

1983.20

Excessive Force. Plaintiff alleges that McCarthy and Matthews used excessive 

force in effectuating his arrest. It is clear that “’[t]he Fourth Amendment’s freedom from 

unreasonable searches and seizures encompasses the plain right to be free from the use 

of excessive force in the course of an arrest.’” Myers v. Bowman, 713 F.3d 1319, 1327 (11th 

Cir. 2013), quoting Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002). The Eleventh 

Circuit has also long held and explained that “when applied in excessive force cases, 

‘qualified immunity applies unless application of the standard would inevitably lead 

every reasonable officer in [the position of the defendant officer] to conclude the force 

was unlawful.’” Nolin v. Isbell, 207 F.3d 1253, 1255 (11th Cir. 2000), quoting Post v. City of 

Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993), modified on other grounds, 14 F.3d 583 

(11th Cir. 1994).

 20 In addition, the undersigned fails to perceive how plaintiff has a cognizable 

claim for unlawful search since the search of Davis’ person was conducted incident to his arrest 

and plaintiff makes no allegation that anything seized from his person was not returned to him 

or, otherwise, was utilized against him in court.

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19

Here, based on the facts set forth in plaintiff’s complaint (as plaintiff purports to 

amend it), McCarthy and Matthews “coerced” Davis from his automobile by 

McCarthy’s act in placing his hand on his gun and shouting at him to get out of the car 

(because he was going to jail) and the act of Matthews in pulling on plaintiff’s left 

shoulder; the officers then began to search his person while concomitantly placing him 

in handcuffs. Plaintiff nowhere describes any injuries to his person (for instance, his 

shoulder)21 attributable to the actions of McCarthy and Matthews and certainly makes 

no allegations that he required medical treatment following his arrest. (See Docs. 1 & 

Doc. 24, Exhibit 2.) Given that the amount of force utilized by McCarthy and Matthews 

was minor in nature and the injury inflicted, if any, de minimis, the undersigned 

recommends that the Court find that plaintiff’s excessive force claim against McCarthy 

and Matthews be DISMISSED inasmuch as the application of the excessive force 

standard would not inevitably (or invariably) lead an official in the position of the 

arresting officers in this case to conclude that the force utilized was unlawful, see Nolin, 

supra, at 1256, particularly in light of the Supreme Court’s recognition that “the right to 

make an arrest or investigatory stop necessarily carries with it the right to use some 

degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 

396, 109 S.Ct. 1865, 1871-1872, 104 L.Ed.2d 443 (1989) (citation omitted).

 21 As for plaintiff’s allegations that the officers touched his buttocks and groin area 

during the search, such conduct is inevitable during a pat-down search and, as with the 

touching of the shoulder, plaintiff makes no suggestion or allegation that he suffered any injury 

to his buttocks or groin during the course of his arrest. The same conclusion herein pertains 

even considering the affidavit observations of Jawanna Osborne that she “observed two police 

officers snatch [Davis] from inside [his] car in a very aggressive manner, slam . . . [him up] 

against [hi] car, put hand cuffs on [him] & search [him].” (Doc. 1, Affidavit of Jawanna Osborne, 

at ¶ 3; see also Doc. 24, Exhibit 2, Osborne aff.)

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20

D. Claim Asserted Against Defendant Jones. The undersigned does not 

again go over the specifics of qualified immunity; instead, the undersigned simply 

notes that there can be no doubt but that Jones was acting within the scope of his 

discretionary authority in arriving on the scene on June 14, 2014, following the arresting 

officers initial stop of Davis’ vehicle. The “relevant inquiry becomes whether the facts 

[Davis] alleged show that [Jones’s] conduct violated [Davis’s] ‘clearly established’ 

constitutional rights[,]” with, of course, the “critical inquiry in determining whether law 

is ‘clearly established’ [being] whether the defendant had ‘fair warning’ that his conduct 

was unlawful.” Williams v. Santana, 340 Fed.Appx. 614, 617 (11th Cir. Aug. 11, 2009) 

(citation omitted). 

It has been clearly established that “’supervisors can be held liable for 

subordinates’ constitutional violations on the basis of supervisory liability under 42 

U.S.C. § 1983.’” Id. (citation and brackets omitted).

Supervisory liability under § 1983 occurs when the supervisor personally 

participates in the alleged constitutional violation or when there is a 

causal connection between the actions of the supervising official and the 

alleged constitutional deprivation.22 . . .

A causal connection may be established when: 1) a “history of 

widespread abuse” puts the responsible supervisor on notice of the need 

to correct the alleged deprivation, and he or she fails to do so; 2) a 

supervisor’s custom or policy results in deliberate indifference to 

constitutional rights; or 3) facts support an inference that the supervisor 

directed subordinates to act unlawfully or knew that subordinates would 

act unlawfully and failed to stop them from doing so.

Mathews v. Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007) (some internal quotation marks 

omitted; citations omitted; footnote added), cert. denied, 552 U.S. 1095, 128 S.Ct. 865, 169 

 22 In other words, the supervisor’s conduct must be “causally related to the 

constitutional violation committed by his subordinate[.]” Greason v. Kemp, 891 F.2d 829, 836 

(11th Cir. 1990).

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21

L.Ed.2d 723 (2008); see also A.P. ex rel. Bazerman v. Feaver, 293 Fed.Appx. 635, 651 n. 60 

(11th Cir. Aug. 21, 2008) (same); cf. Roy v. Johnson, 97 F.Supp.2d 1102, 1112 (S.D. Ala. 

2000) (“In order to state a § 1983 claim against a supervisor for failure to supervise, a 

plaintiff ‘must present some evidence that the [defendant] knew of a need to train 

and/or supervise in a particular area and the defendant made a deliberate choice not to 

take any action[,]’ that this failure to train and/or supervise constitutes a custom or 

policy, and that the failure to train and/or supervise was the moving force behind the 

deprivation of a constitutional right.”). As reiterated by the Eleventh Circuit in Williams, 

supra, “’[t]he deprivations that constitute widespread abuse sufficient to notify the 

supervising official must be obvious, flagrant, rampant and of continued duration, 

rather than isolated occurrences.’” 340 Fed.Appx. at 617, quoting Brown v. Crawford, 906 

F.2d 667, 671 (11th Cir. 1990). 

Davis nowhere alleges in his complaint that Jones personally participated in the 

violations (that is, unlawful arrest/seizure, search, imprisonment and excessive force) 

and, therefore, the sole question becomes whether the complaint (as plaintiff desires to 

amend it) sufficiently alleges a causal connection between Jones’s failure to act and the 

alleged violations. Beyond stating the obvious that the recommendation that McCarthy 

and Matthews are entitled to qualified immunity establishes Jones’s entitlement to 

qualified immunity, the undersigned would recommend dismissal of the claim against 

Jones even if dismissal of the claims against McCarthy and Matthews is inappropriate. 

This is because: (1) Davis does not set forth in his complaint (as he proposes to amend 

it) any prior incidents involving use of force by McCarthy and/or Matthews or any 

prior incidents where McCarthy and/or Matthews were determined to have falsely 

arrested, searched and imprisoned individuals without probable cause or a probable 

cause hearing sufficient to put Jones “on notice of misconduct that was sufficiently 

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22

‘obvious, flagrant, rampant and of continued duration’ to require him to act[,]” 

Williams, supra, 340 Fed.Appx. at 618; (2) Davis makes no allegations that Jones knew of 

a need to train and/or supervise McCarthy and Matthews with respect to use of force 

and probable cause sufficient to arrest, search and imprison someone and that Jones 

made a deliberate choice not to take any action, that such failure to train and/or 

supervise constitutes a custom or policy, and that the failure to train and/or supervise 

was the moving force behind the deprivation of a constitutional right, see Roy, supra, 97 

F.Supp.2d at 1112; and (3) Davis sets forth no facts from which this Court can infer that 

Jones directed McCarthy and Matthews to act in an unlawful manner or facts from 

which this Court could infer that Jones knew McCarthy and Matthews would act 

unlawfully and failed to stop them from so acting, see Williams, supra, 340 Fed.Appx. at 

617. Indeed, the only non-conclusory “facts” Davis makes relative to Jones are that 

Jones arrived on scene after the initial stop of his vehicle and observed his arrest, etc., 

and that Jones told him, “When an officer tells you to get out of the car, you get out!” 

(See, e.g., Doc. 24, Exhibit 1, at ¶ 23 & Affidavit of Isaac Davis in Support of Complaint, 

at ¶ 23.)23 Jones’s comment to Davis constitutes nothing more or less than sage advice; it 

certainly does not constitute “facts” upon which to predicate supervisory liability under 

§ 1983. In other words, Davis has not alleged the necessary causal connection to hold 

Jones liable in his supervisory capacity and, therefore, Jones is entitled to qualified 

immunity and the granting of his motion to dismiss (Doc. 13).

 23 Otherwise, plaintiff only alleges in conclusory manner that “Jones knew or 

should have known with respect to his duties, his subordinates McCarthy & Matthews 

searched, arrested & imprisoned plaintiff absent warrant, probable cause, his consent & exigent 

circumstances[]” and that “Jones knew or should have known that his condonation (sic) of 

objectively unreasonable use of force of his subordinates against plaintiff was objectively 

unreasonable.” (See, e.g., Doc. 24, Exhibit 2, at 47 & 48.)

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23

E. City of Mobile’s Liability Under § 1983. “[T]o impose § 1983 liability on 

a municipality, a plaintiff must show: (1) that his constitutional rights were violated; (2) 

that the municipality had a custom or policy that constituted deliberate indifference to 

that constitutional right; and (3) that the policy or custom caused the violation.” 

McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004); see Board of County 

Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 1388, 

137 L.Ed.2d 626 (1997) (“As our § 1983 municipal liability jurisprudence illustrates . . ., it 

is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to 

the municipality. The plaintiff must also demonstrate that, through its deliberate 

conduct, the municipality was the ‘moving force’ behind the injury alleged. That is, a 

plaintiff must show that the municipal action was taken with the requisite degree of 

culpability and must demonstrate a direct causal link between the municipal action and 

the deprivation of federal rights.”). As best the undersigned can parse plaintiff’s 

complaint, he alleges the following theories for municipal liability under § 1983: (1) the 

City of Mobile maintained a policy or custom and/or failed to train and supervise its 

police officers regarding search and seizure procedures and probable cause hearings; (2) 

the City of Mobile maintained a policy or custom and/or failed to train and supervise 

its police officers regarding use of force attendant to making an arrest; and (3) the City 

of Mobile ratified the officers’ actions in this matter by not taking any action against the 

officers despite its receipt of three notices over a ninety-day period of the subject 

incident and the officers’ “misconduct.” (See, e.g., Doc. 24, Exhibit 2, at ¶¶ 36-40 & 58.) 

Case 1:15-cv-00138-KD-C Document 38 Filed 08/26/15 Page 23 of 30
24

As reflected above, Davis’ complaint does not establish any constitutional 

violation, that is, no violation of his Fourth, Fifth, or Fourteenth Amendment rights,24

and, therefore, there is simply no basis upon which to predicate municipal liability. See 

McDowell, supra, 392 F.3d at 1289 (the first requirement for imposing § 1983 liability on a 

municipality is a showing by plaintiff that his constitutional rights were violated). This 

is particularly true with respect to Davis’s baseless and unsupportable allegations that 

McCarthy and Matthews were constitutionally required to ensure that he be immediately

taken before a magistrate or municipal judge for a probable cause hearing following his 

arrest late on the night of June 14, 2014 (that is, before “booking”), see McLaughlin, supra, 

at 54-56, 111 S.Ct. at 1668-1670 (recognizing that individuals arrested without a warrant 

are entitled to a prompt probable cause hearing, not an immediate probable cause 

hearing upon completion of the administrative steps—booking, etc.—attendant to 

arrest, and that a jurisdiction providing judicial determinations of probable cause 

within 48 hours will generally comply with the promptness requirement of Gerstein),25

and his Fourth Amendment excessive use of force claim, since his allegations in this 

regard do not state a claim because of their de minimis nature, see Higgenbotham v. City of 

Pleasant Grove, 2013 WL 5519577, *20 (N.D. Ala. Sept. 30, 2013) (dismissing excessive 

 24 The undersigned parenthetically notes that while plaintiff claims that McCarty 

and Matthews deprived him of his Fifth and Fourteenth Amendment rights by denying him an 

immediate probable cause hearing (see, e.g., Doc. 24, Exhibit 2, at ¶ 57), this claim in truth is a 

Fourth Amendment claim, cf. McLaughlin, supra, at 47, 111 S.Ct. at 1665 (recognizing that “the 

Fourth Amendment requires a prompt determination of probable cause”).

25 As previously referenced, plaintiff alleges no facts from which this Court can 

infer that he requested/demanded to be taken to a magistrate or municipal judge after he was 

booked into the Mobile Metro Jail. The facts alleged by plaintiff (that McCarthy and Matthews 

took him by the magistrate’s officer, told him they were there, and then “laughed-off” his 

request for a probable cause hearing) all occurred late at night on the evening of June 14, 2014—

when no magistrate could be on duty—before any booking or other administrative steps 

incident to arrest.

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25

force claim where “[t]he use of force alleged—grabbing Higginbotham’s arm, slamming 

him against the van, twisting his arms behind his back and handcuffing him in a way 

that caused pain, and dragging him to the rear of his car—is commensurate with the 

uses of force characterized as de minimis by the Eleventh Circuit[.]”).26 And although it 

is also true with respect to his Fourth Amendment claims regarding his purported 

unlawful arrest/seizure, search and imprisonment—given that McCarthy and 

Matthews had probable cause or at least arguable probable cause to arrest plaintiff for 

failing to obey an order—the undersigned finds it appropriate to discuss at some 

additional length why there is no municipal liability under § 1983 properly alleged in 

the complaint respecting the search and seizure procedures utilized by the City’s police 

officers.

The allegations in the complaint, as plaintiff purports to amend it, related to 

search and seizure procedures, and the City’s purported ratification of the officers’ 

unlawful conduct in this regard, are the following: (1) the “Plaintiff via certified mail of 

three (3) actual notices over a ninety (90) day period has notified City of the incident & 

its officers’ misconduct[;]” (2) the “City has not responded to any of the said notices & 

City’s officers were still on duty prior to plaintiff commencing this suit[;]” (3) the “City 

as a matter of policy or custom failed to properly train, supervise, control, correct the 

abuse & discourage the unlawful use of authority of its officers[;]” (4) the “Plaintiff had 

a reasonable expectation that upon notifying City via certified mail, City would 

 26 The undersigned nevertheless agrees with counsel for the City of Mobile that

plaintiff’s conclusory statements of the elements of municipal liability—as it relates to his “use 

of force” and his “probable cause” claims—are devoid of specific factual allegations necessary 

to establish municipal liability based on alleged Fourth, Fifth and Fourteenth Amendment 

violations by the officers and, therefore, these claims against the City are due to be 

DISMISSED. 

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26

investigate this matter[;]” (5) the City failed “to properly train, supervise, control, 

correct & discourage the unlawful use of authority of its officers, ratifying unlawful 

conduct of its officers, & exhibiting deliberate indifference to Plaintiff’s reasonable 

expectations of the Federal Constitution[;]” and (6) despite the City’s awareness of its 

“failure to properly train, supervise, control, correct & discourage the unlawful use of 

authority of its officers, [the] City continuously exhibits deliberate indifference to its 

duties, law, & plaintiff’s reasonable expectations of City whereby ratifying its officers’ 

objectively unreasonable actions against plaintiff & exhibiting a we don’t give a damn 

about your rights policy or custom . . ., which is deliberately indifferent to the 

reasonable expectations of its citizens who its officers come into contact with & was the 

moving force behind ALL of plaintiff’s injuries.” (See Doc. 24, Exhibit 2, at ¶¶ 36-37, 39, 

51 & 58.)

To the extent that the foregoing allegations can be read to implicate a custom of 

policy of the City resulting in a violation of his Fourth Amendment rights, those 

allegations are wholly conclusory and relate solely to the incident which is the subject of 

the complaint, plaintiff nowhere alleging any specific facts indicating a persistent or 

widespread policy or custom followed by the City with respect to arrest/seizure, 

imprisonment and search practices.27 Accordingly, because plaintiff’s factual allegations

focus solely on his arrest, search, and imprisonment, they are legally insufficient to state 

a claim of municipal liability against the City. See Barr v. Gee, 437 Fed.Appx. 865, 875

(11th Cir. Aug. 16, 2011) (“As employees’ actions do not imply municipal liability 

absent an official policy or custom, and a single incident does not support an inference 

 27 In other words, Davis offers no factual allegations to support a plausible 

inference that the City had a custom of condoning violations of arrestees’ search, seizure, and 

imprisonment rights.

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of such a policy, the district court did not err in finding that Barr had failed to state a 

claim for municipal liability.”), cert. denied, U.S. , 132 S.Ct. 2392, 182 L.Ed.2d 1035 

(2012); see also id. at 874 (“An ‘isolated incident, however unfortunate, does not 

demonstrate evidence of the County’s ‘persistent’ or ‘widespread’ policy.”). 

With respect to plaintiff’s broad allegations of inadequate training and 

supervision, it is clear that “’[m]unicipal policy or custom may include a failure to 

provide adequate training if the deficiency evidences a deliberate indifference to the 

rights of its inhabitants.’” Barr, supra, 437 Fed.Appx. at 874, quoting Lewis v. City of West 

Palm Beach, Florida, 561 F.3d 1288, 1293 (11th Cir. 2009).

In order to establish deliberate indifference, the “plaintiff must present 

some evidence that the municipality knew of a need to train and/or 

supervise in a particular area and the municipality made a deliberate 

choice not to take any action.” A municipality may be put on notice if 

either (1) the municipality is aware that a pattern of constitutional 

violations exists, and nevertheless fails to provide adequate training, or (2) 

the likelihood for a constitutional violation is so high that the need for 

training would be obvious.

Id. (emphasis supplied; internal citations omitted). Here, of course, plaintiff nowhere 

alleges in his complaint, as he purports to amend it, facts supporting a plausible 

inference either that the City was on notice before June 14, 2014 of a need to train or 

supervise its police officers in the area of searches, seizures, and imprisonment, or that 

the City made a deliberate choice not to take any action in this regard. Thus, plaintiff 

also has failed to state a cognizable claim of “failure to train/supervise” municipal 

liability.

Finally, the undersigned agrees with the City that Davis’ allegations of municipal 

liability based on ratification are legally insufficient to state a claim. 

[I]n limited circumstances, a city also may be held liable on a ratification 

theory. Support for ratification as a theory of § 1983 municipal liability 

emanates from dicta in City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 

915, 99 L.Ed.2d 107 (1988) (plurality opinion), that, “[i]f the authorized 

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policy makers approve a subordinate’s decision and the basis for it, their 

ratification would be chargeable to the municipality because their decision 

is final.” Id. at 127, 108 S.Ct. 915. The Eleventh Circuit has explained that § 

1983 municipal liability on the basis of ratification occurs “when a 

subordinate public official makes an unconstitutional decision and when 

that decision is then adopted by someone who does have final 

policymaking authority.” Matthews v. Columbia County, 294 F.3d 1294, 1297 

(11th Cir. 2002). “The final policymaker, however, must ratify not only the 

decision itself, but also the unconstitutional basis for it.” Id.

Waters v. City of Geneva, 47 F.Supp.3d 1324, 1336 (M.D. Ala. 2014). There are simply no 

allegations in the complaint, as plaintiff proposes to amend it, that McCarthy and 

Matthews requested and obtained approval from an authorized municipal policymaker 

to seize/arrest, search and imprison plaintiff on June 14, 2014; therefore, there are no 

plausible allegations that the City of Mobile is liable under § 1983 based upon a 

ratification theory. See id. at 1337. Plaintiff’s allegations that he informed the City of the 

incident and the officers’ misconduct after the fact and the City failed to respond to his 

notices does not amount to ratification. See id. In addition, the suggestion that the City 

did nothing to punish these officers does not establish a basis for municipal liability 

because of a lack of a direct causal link between the purported municipal action (or nonaction) and the alleged deprivation of plaintiff’s constitutional rights. See Hardy v. Town 

of Hayneville, 50 F.Supp.2d 1176, 1188 (M.D. Ala. 1999) (“The town council made the 

decision to retain Officer Davis after the incident which gave rise to Plaintiff’s alleged 

constitutional injuries. Therefore, there is no direct causal link between the council’s 

decision to retain Officer Davis and the deprivation of Plaintiff’s federal rights. The 

town council’s decision to retain Officer Davis does not give rise to liability for the 

constitutional deprivation alleged in this case.”).

Based upon the foregoing, all § 1983 municipal liability claims asserted by Davis 

are due to be DISMISSED.

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F. Plaintiff’s State Law Claims. Davis has alleged a variety of state law 

claims against the arresting officers, McCarthy and Matthews, including claims of 

trespass, assault and battery, false arrest, and false imprisonment. (Compare Doc. 1, at ¶ 

40 with Doc. 24, Exhibit 2, at ¶ 55.) In light of the proper dismissal of plaintiff’s federal 

claims, there exists no independent basis for federal jurisdiction; therefore, the state law 

claims that remain also should be dismissed so that Davis may pursue them in state 

court. See Nolin, supra, 207 F.3d at 1258. As established by the briefing in this matter (see, 

e.g., Doc. 18, at 12-13), plaintiff’s state law claims “deal with complex questions of 

discretionary immunity in the state of Alabama[, and a] proper resolution of th[os]e [] 

state law causes of action will require a careful analysis of Alabama law—something the 

courts of Alabama are in the best position to undertake and, for reasons of federalism, 

should undertake in this sensitive area.” Id. In light of the foregoing, the undersigned 

RECOMMENDS that the Court DISMISS plaintiff’s state law claims—asserted against 

McCarthy and Matthews—so that Davis may pursue those claims, if he so chooses, in 

state court. 

CONCLUSION

In light of the foregoing, the undersigned RECOMMENDS that the Court 

GRANT the motions to dismiss filed on behalf of the City of Mobile (Doc. 19) and 

Sergeant Melvin Jones (Doc. 13) IN THEIR ENTIRETY. In addition, the motion to 

dismiss filed on behalf of Officer Daniel McCarthy and Corporal Lorenzo Matthews 

(Doc. 17) should also be GRANTED. The undersigned would simply note that the state 

claims asserted against McCarthy and Matthews should be dismissed in a manner that 

Davis may pursue those claims, if he so chooses, in state court. 

NOTICE OF RIGHT TO FILE OBJECTIONS

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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. GenLR 72(c)(1) & (2). 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 and ORDERED this the 26th day of August, 2015. 

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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