IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

MICHAEL DONALD ROGERS

)

)

)

)

)

)

)

)

Plaintiff,

vs. CIVIL ACTION NO. 14-586-CG-M

CITY OF SELMA, et al.,

Defendants.

ORDER

Plaintiff Michael Donald Rogers (“Plaintiff”) brought suit against the City of 

Selma (the “City”), Police Chief William Riley (“Chief Riley”), Officer Curtis 

Muhannad (“Muhannad”), and Detective Ray Blanks (“Blanks”) (collectively, 

“Defendants”) under 42 U.S.C. §1983 and various state law claims. (Doc. 1). 

Presently, this matter is before the Court on Defendants’ Motion for Summary 

Judgment and supporting brief (Docs. 21, 22), Plaintiff’s response (Doc. 25), and 

Defendants reply (Doc. 27). This matter is now ripe for resolution. Based on the 

following, Defendants’ motion is due to be GRANTED.

I. SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56(a) instructs that “[t]he court shall grant 

summary judgment if the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” The trial 

court’s mission is to “determine whether there is a genuine issue for trial” and not 

to “weigh the evidence.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 1 of 40
2

(1986).

The burden is on the moving party to show that there is no genuine dispute 

as to any material fact. Id. at 256. In conducting its summary judgment analysis, 

the Court must construe all evidence “in the light most favorable to the party 

opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

After the movant meets its burden, the burden shifts to the nonmoving party 

“to make a showing sufficient to establish the existence of an element essential to

that party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the 

nonmoving party fails to do so, the “complete failure of proof concerning an essential 

element of the nonmoving party’s case necessarily renders all other facts 

immaterial.” Id. at 323. Further, Rule 56 “requires the nonmoving party to go

beyond the pleadings and by [his] own affidavits, or by the depositions, answers to 

interrogatories, and admissions on file, designate specific facts showing that there is 

a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). There is 

no genuine issue for trial “[w]here the record taken as a whole could not lead a 

rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. 

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II. PROPER EVIDENCE TO OPPOSE SUMMARY JUDGMENT

As an initial matter, Plaintiff offers the self-described “affidavit” of Dorother 

Rogers, Plaintiff’s wife, and Faya Toure, Plaintiff’s attorney, as evidence opposing

Defendants’ Motion for Summary Judgment. See (Doc. 25-9; Doc. 26). An affidavit 

or declaration can be “used to support or oppose a motion” as long as either are 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 2 of 40
3

“made on personal knowledge, set out facts that would be admissible in evidence, 

and show that the affiant or declarant is competent to testify on the matter stated.” 

Fed. R. Civ. P. 56(c)(4). An affidavit has three elements: “(1) a written oath 

embodying the fact as sworn to by the affiant; (2) the signature of the affiant; and 

(3) the attestation by an officer authorized to administer the oath that the affidavit 

was actually sworn by the affiant before the officer.” 3 Am. Jur. 2d Affidavits § 8;

see also Auito v. Auito, 704 S.E. 2d 789, 790 (Ga. 2011) (laying out the three 

elements of an affidavit). Of particular importance is the third element. Under 

Alabama law, a notary public may “[a]dminister oaths in all matters incident to the 

exercise” of his or her office. Ala. Code § 36-20-73 (1975). And when an officer does 

not administer an oath for the affiant in relation to the statement, it is improper 

evidence to oppose a motion for summary judgment. See Dudley v. City of 

Monroeville, Ala., 446 Fed. App’x 204, 207 (11th Cir. 2011) (“Unsworn statements 

do not meet the requirements of Rule 56, so the district court could not—and 

properly did not—rely on the content of the [unsworn] statement.”) (citing Carr v. 

Tatangelo, 338 F.3d 1259, 1273 n. 26 (11th Cir. 2003)); see also Estrella v. Ltd. 

Financial Services, LP, 2015 WL 6742062, at *3 (M.D. Fla. Nov. 2, 2015).1

In the absence of an oath affirming an affidavit, federal law recognizes 

certain unsworn declarations as competent evidence to oppose a motion for 

1 Also, as Defendants assert, there is authority from our sister circuit that an 

unsworn declaration or affidavit is not competent summary judgment evidence. See

Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1998) (“It is a settled 

rule in this circuit that an unsworn affidavit is incompetent to raise a fact issue 

precluding summary judgment.”)

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 3 of 40
4

summary judgment. 28 U.S.C. § 1746. Section 1746 directs that whenever a rule 

requires “any matter” be supported by a “sworn declaration, ... oath, or affidavit” 

such mater may be supported, “with like force and effect,” by an unsworn 

declaration. Such unsworn declaration must be “subscribed by [the declarant], as 

true under penalty of perjury, and dated, in substantially the following form:”

(2) If executed within the United States, its territories, possessions, or 

commonwealths: “I declare (or certify, verify, or state) under penalty of 

perjury that the foregoing is true and correct. Executed on (date).

Id. Strict compliance with § 1746 is not required as long as the unsworn declaration 

“substantially” satisfies the statute. See United States v. Roberts, 308 F.3d 1147, 

1154–55 (11th Cir. 2002), cert. denied, 538 U.S. 1064 (2003) (finding § 1746 met 

when the unsworn declaration included the disclaimer “to the best of [the 

declarant’s] knowledge, information or belief”); Schroeder v. McDonald, 55 F.3d 454, 

460 n.10 (9th Cir. 1995) (finding § 1746 met where it stated that “the facts stated in 

... the complaint [are] true and correct as known to me”). 

In this case, both statements include a summary of what each individual 

alleges occurred during the time surrounding Plaintiff’s arrest. At the close of each 

document, an Alabama Notary Public completed the following acknowledgement:

On this, the 4th day of December, 2015, before me a notary public, the 

undersigned officer, personally appeared [Faya Toure (Doc. 25-9); 

Dorother Rogers (Doc. 26)], known to me (or satisfactorily proven) to be 

the person whose name is subscribed to the within instrument, and 

acknowledged that he executed the same for the purposes therein 

contained. In witness hereof, I hereunto set my hand and official seal.

(Doc. 25-9; Doc. 26). Defendants agree that a party may oppose summary judgment 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 4 of 40
5

with an affidavit or declaration. (Doc. 27, p. 2). But Defendants argue that neither 

statement is a valid affidavit or declaration. Id. Thus, Defendants argue that the 

Court should not consider the two self-described “affidavits.” Id. at 4. The Court 

agrees. Neither witness in her self-described “affidavit” declared her statement to 

be true, believed to be true to the best of her ability, made the statement under 

oath, or made it under penalty of perjury. All the notary did was acknowledge that 

the person who signed the statement was actually who she proclaimed herself to be. 

Thus, neither statement is proper evidence to oppose a motion for summary 

judgment. 

But this decision is not to be interpreted as creating an insurmountable

hurdle or hypertechnical formality in opposing a motion for summary judgment that 

serves no legitimate purpose. The assurance provided by requiring a witness to 

make a statement under oath or under penalty of perjury is critical. Without either, 

an affiant or declarant is free to fabricate a genuine issue of material fact with no 

fear of recourse. Moreover, this decision should not be interpreted to say that a 

timely motion to correct such an error would be denied in every case. But here,

three months have passed since Defendants made the deficiency known and

Plaintiff has neither corrected the error not requested the opportunity to correct the

error.2 Therefore, the Court will not consider either statement in making its 

2 It bears mentioning that the self-described “affidavit” is not the only problem in 

Plaintiff’s response and supporting material. Civil Local Rule 7(e) directs that a 

motion in opposition to summary judgment “must not exceed thirty (30) pages.” 

General Local Rule 5(a)(1) states that the text of the motion “must be double-spaced 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 5 of 40
6

decision. 

III. FACTS

The chain of events leading up to Plaintiff’s arrest began when Butler Truax 

Jewelers of Selma, Alabama was burglarized on three different occasions during 

November 2013. (Doc. 22-7). In the subsequent investigation, Detective Charles 

Clark of the Selma Police Department obtained surveillance footage depicting the 

same person, later identified as Fortune Hoppins, committing one of the burglaries. 

Id. After his arrest, Hoppins implicated Dorother Rogers, Plaintiff’s wife, as his 

getaway driver. Id. Hoppins’s statement and surveillance footage of one of the 

burglaries indicated that Dorother Rogers drove her Nissan Altima during the 

commission of that burglary. (Doc. 22-7; Doc. 25-3, p. 9, ll. 3–4). Based on this 

information, police contacted Dorother Rogers and asked her to come to the station 

for an interview. Mrs. Rogers drove a rented Nissan Sentra to the station for the 

interview. Police arrested Mrs. Rogers after interviewing her. While Mrs. Rogers

was at the station, officers went to her home and impounded the Nissan Altima. 

 

....” And Civil Local Rule 56(b) provides that “..The non-movant’s brief must 

include: (1) all facts relied upon, each supported by a specific, pinpoint citation to 

the record; (2) all challenges to the movant’s asserted facts; and (3) argument 

supported by legal authority as appropriate.” Plaintiff’s counsel, who opens her selfdescribed “affidavit” with the qualifier that she has “been a practicing attorney in 

the State of Alabama for over 40 years,” submitted a twenty-one page, single-spaced 

brief containing a copious amount of uncited assertions of both fact and law. 

Furthermore, the Court finds it problematic that Plaintiff’s counsel appears not 

only to be an advocate, but also a material witness in this case based on her selfdescribed “affidavit.” See Putman v. Head, 268 F.3d 1223, 1246 (11th Cir. 2001) 

(“[R]ules of professional conduct generally disapprove of lawyers testifying at 

proceedings in which they are also advocates.”)

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 6 of 40
7

(Doc. 22-1, p. 36, ll. 3–18; Doc. 25-3, p. 16, ll. 2–4). Plaintiff Rogers was at the house

when officers impounded the Altima. (Doc. 25-3, p. 16).

Later, Plaintiff went to the police station to post his wife’s bail and found out 

that she had been charged with burglary based on her allegedly driving the Altima 

during the burglaries. (Doc. 22-1, p. 37, ll. 10–13). After making bail, Mrs. Rogers

asked the processing clerk for her property, which included the Altima key. (Doc. 

25-2, p. 10, ll. 20–23). Unable to release the property without officer approval, the 

clerk called Detective Clark. Detective Clark came to the processing desk to give 

Dorother back her property. The clerk testified that she did not remember the 

conversation that took place between Mrs. Rogers and Clark but does remember 

Clark returning the Altima keys to her. Id. at 13, ll. 14–15. Officer Walter Curtis 

testified that he did not see Mrs. Rogers get the Altima keys but did know that she 

asked for them and got them somehow. (Doc. 25-5, p. 20, ll. 6–16). Clark testified 

that he gave Mrs. Rogers the rental car key and permission to remove the rental car

but not the Altima. (Doc. 25-3, p. 35, ll. 8–18). Either way, Plaintiff was not 

present for the conversation between Clark and Mrs. Rogers, neither was Officer 

Muhannad or Detective Blanks. When Plaintiff and Mrs. Rogers left the police 

station, he drove the Altima out of the impound lot and home. (Doc. 22-1, p. 51, ll. 

21–p. 52, ll. 3).

Approximately thirteen days later, officers discovered the Altima missing. 

(Doc. 22-3, p. 3). Officers began reviewing the impound lot surveillance recordings

and discovered that Plaintiff removed the Altima on the same day he bailed his wife 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 7 of 40
8

out of jail: January 10, 2014. (Doc. 22-3, p. 3; Doc. 25-5, p. 27, ll. 16–18). At around 

8:00 a.m. on the morning of January 27, 2014, five officers, including Officer 

Muhannad, Detective Blanks and Detective Jones, went to Plaintiff’s home. (Doc. 

25-4, p. 9, ll. 20–23; Doc. 22-3, p. 3). Upon arrival, officers found the Altima on 

Plaintiff’s property. Officers knocked on the door, and Plaintiff answered, dressed

in his pajamas. (Doc. 22-1, p. 59, ll. 4–17). They informed him they needed to speak 

with him at the station, and Plaintiff asked to change into jeans before they left. Id. 

Officers escorted Plaintiff into his bedroom to change. Id. Detective Blanks then 

handcuffed Plaintiff and took him to the station. Id. at 67, ll. 1–3. Upon arrival, he 

was placed in an interview room where Detectives Blanks and Jones began 

administering a Miranda warning. (Doc. 22-2; Doc. 25-7, p. 9, ll. 18–23). Before he 

could be could be interviewed, Plaintiff’s attorney arrived and instructed police to 

cease the interview. 

At approximately 10:20 a.m. that same morning, police arrested Plaintiff for 

evidence tampering. He made bail that afternoon and was released.3 (Doc. 22-5). 

That same day, an arrest report and incident report were completed that indicates

Blanks is the reporting officer. (Doc. 22-3). Subsequently, the City dismissed the 

evidence tampering charge against Plaintiff due to missing paperwork. (Doc. 22-

3 As the Court notes below, there is uncertainty in the deposition testimony 

regarding the identity of the arresting officer. Further, there is dispute of whether 

Plaintiff was under arrest before or after his attorney arrived at the station. The 

Miranda warning report is the only evidence offered of the time at which Plaintiff 

was arrested, regardless of whether it was before or after his attorney’s arrival. See

(Doc. 22-5). Since Plaintiff offers no evidence to refute the time of arrest being 

10:20 a.m., it is presumed undisputed.

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 8 of 40
9

12). Based on his arrest, Plaintiff brought suit alleging violations of both federal 

and state law. 

IV. LEGAL ANALYSIS OF FEDERAL CLAIMS

Plaintiff’s § 1983 federal claims contain both an individual capacity aspect

(unlawful arrest and false imprisonment -- Count I, malicious prosecution -- Count 

VI, and excessive force -- Count VII) and an official capacity aspect (negligent 

training and supervision -- Count V). 

A. Section 1983 Individual Capacity Claims

Section 1983 provides a federal forum for citizens to remedy deprivations of 

civil liberties. 42 U.S.C. § 1983. However, a government official who is sued in his 

or her individual capacity under § 1983 may seek summary judgment on the ground 

that he or she is entitled to qualified immunity. Crosby v. Monroe County, 394 F.3d 

1328, 1332 (11th Cir. 2004). Muhannad and Blanks seek the protection of qualified 

immunity for the individual capacity claims brought against them. As the Supreme 

Court explained, qualified immunity protects government officials performing 

discretionary functions from civil trial and liability if their conduct violates no 

“clearly established statutory or constitutional rights of which a reasonable person 

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “The purpose 

of this immunity is to allow government officials to carry out their discretionary 

duties without the fear of personal liability or harassing litigation, protecting from 

suit all but the plainly incompetent or one who is knowingly violating the federal 

law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal citation

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 9 of 40
10

omitted).

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.” Id. Once proven, “the burden shifts to the plaintiff to show 

that qualified immunity is not appropriate.” Id. Under Saucier v. Katz, the 

“threshold question” is: “[t]aken in the light most favorable to the party asserting 

the injury, do the facts alleged show the officer's [discretionary] conduct violated a 

constitutional right?” 533 U.S. 194, 201 (2001). Only if the answer to that question 

is affirmative may the court proceed to determine “whether the right was clearly 

established.” Id. A plaintiff can establish that a right was clearly established and 

provides notice or warning to officers that the conduct was unconstitutional by 

submitting fact-specific precedents, or demonstrating that the very conduct “lies so 

obviously at the very core of what the Fourth Amendment prohibits that the 

unlawfulness of the conduct was readily apparent.” Vinyard v. Wilson, 311 F.3d 

1340, 1355 (11th Cir. 2002). The Court notes that the two-step inquiry established 

in Saucier is no longer mandatory. Pearson v. Callahan, 555 U.S. 223, 236 (2009). 

If no constitutional right was violated, the court need not inquire further. Id. If, 

however, a constitutional violation occurred, the court must then determine 

whether the right was clearly established. Id.

1. Unlawful Arrest (Count I)

As his anchor claim, Plaintiff alleges that his Fourth Amendment right 

against unreasonable seizure was violated because he was unlawfully arrested. It 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 10 of 40
11

is well established that an arrest is within the discretionary authority of a police 

officer. Wood v. Kesler, 323 F.3d 872, 877 (11th Cir. 2003) (finding that a trooper 

was “within the course and scope of his discretionary authority when he charged 

and arrested” someone). And it is undisputed that an “arrest without probable 

cause to believe a crime has been committed violates the Fourth Amendment.”

Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997) (citing Von Stein v. 

Brescher, 904 F.2d 572, 579 (11th Cir. 1990)). “Probable cause exists where the 

facts and circumstances within the collective knowledge of the law enforcement 

officials, of which they had reasonably trustworthy information, are sufficient to 

cause a person of reasonable caution to believe an offense has been or is being 

committed.” United States v. Jimenez, 780 F.2d 975, 978 (11th Cir. 1986) (internal 

quotations and citation omitted). “Probable cause does not require the same type of 

specific evidence of each element of the offense as would be needed to support a 

conviction.” Adams v. Williams, 407 U.S. 143, 149 (1972). Instead, it is a nontechnical, pragmatic approach that evaluates the facts of the case using the totality 

of the circumstances. Maryland v. Pringle, 540 U.S. 366, 370 (2003). “While an 

officer who arrests an individual without probable cause violates the Fourth 

Amendment, this does not inevitably remove the shield of qualified immunity.” 

Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1137 (11th Cir. 2007). 

To be shielded by qualified immunity from a claim of unlawful arrest, an 

officer need not have actual probable cause, but only arguable probable cause. 

Holmes v. Kucynda, 321 F.3d 1069, 1079 (11th Cir. 2003). Arguable probable cause 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 11 of 40
12

exists where “reasonable officers in the same circumstances and possessing the 

same knowledge as the [d]efendants could have believed that probable cause existed 

to arrest [the] [p]laintiff.” Kingsland v. City of Miami, Fla., 382 F.3d 1220, 1232 

(11th Cir. 2004) (citing Von Stein, 904 F.2d at 579). “Indeed, it is inevitable that 

law enforcement officials will in some cases reasonably but mistakenly conclude 

that probable cause is present, and in such cases those officials should not be held 

personally liable.” Von Stein, 904 F.2d at 579 (internal quotations and ellipses 

omitted); see also Hunter v. Bryant, 502 U.S. 224, 227 (1991) (“Even law 

enforcement officials who reasonably but mistakenly conclude that probable cause 

is present are entitled to immunity.”) (internal quotations and citation omitted). 

This objective standard does not evaluate the officer’s subjective intent or beliefs. 

Rushing v. Parker, 599 F.3d 1263, 1266 (11th Cir. 2010). Thus, “even law 

enforcement officials who reasonably but mistakenly conclude that probable cause 

is present are entitled to immunity.” Holmes, 321 F.3d at 1079 (internal quotations

and citation omitted). The plaintiff bears the burden to “demonstrate that no 

reasonable officer could have found probable cause under the totality of the 

circumstances.” Kingsland, 382 F.3d at 1232.

Whether an officer possesses arguable probable cause depends on the 

elements of the alleged crime and the operative fact pattern. Skop, 485 F.3d at 

1137–38. Like the standard for probable cause, arguable probable cause does not 

require an arresting officer to prove every element of a crime before making an 

arrest. Scarbrough v. Myles, 245 F.3d 1299, 1303 (11th Cir. 2001). Thus, the 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 12 of 40
13

inquiry is “whether [the defendant] violated clearly established law in making the 

arrests based on the objective factors that gave rise to his probable-cause 

determination and not whether the arrestees’ actions actually constituted a crime.” 

Id. at 1303 n. 8.

Under Alabama law, “[a] person commits the crime of tampering with 

physical evidence if, believing that an official proceeding is pending or may be 

instituted, and acting without legal right or authority, he ... [d]estroys, mutilates, 

conceals, removes or alters physical evidence with intent to impair its use, verity or 

availability in the pending prospective official proceeding....” Ala. Code § 13A-10-

129(a)(1) (1975). Tampering with physical evidence is a misdemeanor. Id.

a. Muhannad

Plaintiff argues that Muhannad, “the real arresting officer,” is liable under § 

1983 for unlawful arrest. (Doc. 25, p. 8). Plaintiff bases this on Officer Curtis 

allegedly telling Muhannad before Plaintiff was arrested that he “legally removed 

the subject vehicle from police premises.” (Doc. 25, p. 7; Doc. 25-5, p. 26, l. 5–p. 27, 

l. 11). Defendants counter that any conversation that took place between 

Muhannad and Officer Curtis took place the day after Plaintiff’s arrest (Doc. 22, p. 

11; Doc. 25-4, p. 34, ll. 14–16),and moreover, that Muhannad “did not arrest 

Plaintiff [and] did not make the decision to arrest him” (Doc. 21, p. 12) and that 

therefore he cannot be liable for unlawful arrest.

Reading this evidence in Plaintiff’s favor, there is factual a question as to the

when the conversation between Muhannad and Officer Curtis occurred. If this was 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 13 of 40
14

the only question, it would be enough to survive summary judgment on the 

unlawful arrest claim, but it is not. A more pivotal issue exists. Was Muhannad

the arresting officer? Plaintiff’s response is filled with assertions unsupported by 

fact that Muhannad is the arresting officer. The only assertion concerning 

Muhannad being the arresting officer that Plaintiff supports with an evidentiary

cite is the assertion that Detective Blanks testified that “Muhannad made the 

decision to arrest Plaintiff....” (Doc. 25, p. 8). After examining Plaintiff’s Blanks’ 

testimony in a light most favorable to Plaintiff, the Court finds that Blanks’

testimony does not support Plaintiff’s proposition. In pertinent part, the following 

exchange took place between Plaintiff’s attorney and Blanks regarding the events 

leading up to Plaintiff’s arrest:

Q: (Plaintiff’s Attorney): In fact, he wasn’t arrested until I told you not 

to question him because I was his attorney; is that correct?

A: (Blanks): He was not placed under arrest until Detective Clark 

decided to arrest him.

Q: But that was after I told you not to question him.

A: Yes.

 . . . 

Q: Did you talk to Officer Clark that day?

A: Yes, I did.

Q: At what point did you talk to him?

A: After the Miranda was read, he decided that we had probable cause 

to place him under arrest.

Q : Did he talk to you before that decision?

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 14 of 40
15

A : No.

Q: Who did he talk to?

A: He was talking back and forth with Lieutenant Muhannad.

Q: Okay. So after I arrived Clark and Muhannad had a conversation 

and decided to arrest him, even though there had been no questioning?

A: I guess so, ma’am.

(Doc. 25-7, p.10 l. 18 thru p.11, l. 4; p.12, l. 18 thru p.13, l. 13). At best, Blanks 

“guess” is an assumption that Muhannad had taken part in the decision to arrest, 

which Plaintiff’s attorney invited with her leading question, and not an affirmative 

answer, particularly since Blanks identified Detective Clark as the one who made 

the decision to arrest. Beyond this, no witness testified that Muhannad arrested 

Plaintiff.

Moreover, the incident report and arrest document do not reflect that 

Muhannad is the arresting officer. (Doc. 22-3; Doc. 22-5). It is the arresting officer 

that is listed on and completes the arrest report and complaint. (Doc. 25-4, p. 44, ll. 

3–8). Blanks is the listed officer.4 Plaintiff himself testified that Officer Muhannad 

had no involvement in his arrest other than being at the station when he was 

brought in. (Doc. 22, Ex.1, P.68, ll. 1-23; p.70, l. 16 thru p.71, l. 4). Nor did Plaintiff 

dispute in his deposition testimony that Blanks and Jones were the arresting 

officers. (Id., p.71, l. 23 thru p.72, l. 5). Because the evidence does not support the 

4 Additionally, the incident report lists Clark as the assisting officer (Doc. 22-3), and 

the arrest report lists Jones as an arresting officer (Doc. 22-5). Neither is named as 

defendants in this matter, so the Court does not consider their liability. 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 15 of 40
16

assertion that Muhannad made the arrest, the claim against him for unlawful 

arrest cannot survive summary judgment. See Brown v. City of Huntsville, 608 

F.3d 724, 737 (11th Cir. 2010). Defendants’ motion is GRANTED in regard to 

Plaintiff’s claim of unlawful arrest against Muhannad.

b. Blanks

The complaint also names Blanks as a defendant in the § 1983 claim of

unlawful arrest (Doc. 1, pp. 2–3). But in his response to the motion for summary 

judgment, Plaintiff focuses on Muhannad as the arresting officer. In doing so, 

Plaintiff concedes that Blanks was not the arresting officer. (Doc. 25, p. 8) (“Other 

Defendants like Chief Riley and Blanks participated in the cover-up although they 

did not participate in the arrest.”).5 However, deposition testimony from several 

police officers, although contradictory, raises the possibility that Blanks was the 

arresting officer. See (Doc. 25-4, p. 64, ll. 1–4) (Muhannad testifying that Detective 

Clark made the arrest); (Doc. 25-7, p. 10, ll. 21–22) (Blanks testifying that Detective 

Clark made the arrest); (Doc. 25-3, p. 47, ll. 2–4) (Clark testifying that he did not 

make the arrest); (Doc. 25-6, p. 10, ll. 11–15) (Jones testifying that Blanks made the 

5 Throughout his response, Plaintiff alleges a “cover up” by Defendants to shield 

Muhannad from liability. Beyond the contradictory depositions about who arrested 

Plaintiff, he offers nothing but bald speculation regarding this “cover up,” which is 

not considered in this Order. See Cooper v. Southern Co., 390 F.3d 695, 745 (11th 

Cir. 2004) (holding that summary judgment was appropriate where the plaintiff 

relied on conclusory assertions that were based entirely on her own subjective 

beliefs), overruled on other grounds Ash v. Tyson Foods, Inc., 546 U.S. 454, 457–58 

(2006); Stewart v. Booker T. Washington Ins., 232 F.3d 844, 850 (11th Cir. 2000) 

(holding that “bare and self-serving” allegations that are not based on personal 

knowledge are inadequate to survive summary judgment).

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 16 of 40
17

arrest). In addition, the arrest report list Blanks and Jones as the arresting 

officers. (Doc. 22-5). Therefore, the Court finds it necessary to evaluate whether 

Blanks, as the arresting officer, is due summary judgment.

In support of summary judgment, Blanks raises the defense of qualified 

immunity. Assuming Blanks is the arresting officer, he acted with discretionary 

authority. See Wood, 323 F.3d at 877. Thus, the burden shifts to Plaintiff to show

that qualified immunity is inappropriate. In other words, do the facts, taken in a 

light most favorable to Plaintiff, show that Blanks acted without at least arguable 

probable cause? 

Here, Plaintiff was aware that his wife was the alleged getaway driver who 

used the Nissan Altima in three burglaries. (Doc. 22-1, p. 48, ll. 18–20). He also 

knew that that the Altima was impounded as a result. Id. When the Altima was 

discovered missing, Blanks obtained information that helped form probable cause 

from officers whom viewed surveillance footage of Plaintiff removing the Altima 

from police impound. See Madiwale v. Savaiko, 117 F.3d 1231, 1324 (11th Cir. 

1997) (finding the collective knowledge of law enforcement officials derived from 

reasonably trustworthy information can establish probable cause). Investigator 

Cole and Sergeant Hardy had informed Blanks that Plaintiff knew the Altima 

“could not be released [from impound] and was being held for processing.” (Doc. 22-

3, pp. 2–3) When Blanks went to Plaintiff’s home, he found the Altima. (Doc. 22-3, 

p. 3) Blanks detained Plaintiff, escorted him to the police station, and subsequently 

placed him under arrest. Id. 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 17 of 40
18

Objectively considering all these facts under the totality of circumstances 

Plaintiff has not shown that Blanks did not have probable cause to believe that 

Plaintiff. Probable cause, or at least arguable probable cause, existed that Plaintiff 

tampered with physical evidence. Nonetheless, Plaintiff posits that because the 

elements of the applicable offense were not present at the time of the arrest

probable cause was an impossibility. (Doc. 25, p. 6). This argument misses its 

mark. The evidence it takes to support a conviction is not the litmus test for 

probable cause. Adams v. Williams, 407 U.S. 143, 149 (1972); see also Scarbrough, 

245 F.3d at 1302–03. 

Additionally, Plaintiff’s attempt to align his position with the unlawful arrest 

in Grider v. City of Auburn, Alabama, 618 F.3d 1240 (11th Cir. 2010), is unavailing. 

This case is materially distinguishable from Grider. In Grider, the Eleventh Circuit 

upheld the denial of qualified immunity on a motion for summary judgment. 618 

F.3d at 1258. In his opposition, Grider unambiguously denied offering money in an 

alleged bribery. Id. Assuming Grider’s version of events true, the court found the 

denial created a genuine issue of material fact of whether the officer fabricated the 

bribery allegation that formed the basis of arguable probable cause. Here, Plaintiff 

admits to taking the car and has supplied no probative evidence that Blanks knew 

of Officer Curtis’ statement about the Altima being legally removed. In fact, 

Plaintiff cites evidence that Blanks was not present when the statement was made. 

(Doc. 25, p. 8) (citing Doc. 25-2, p. 14, ll. 14–15 (Smith testifying that she doesn’t 

remember seeing Blanks present for Curtis’ statement)). Therefore, Plaintiff had 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 18 of 40
19

not shown that a reasonable officer possessing the information Blanks possessed

would not find probable cause. Based on this, Blanks is entitled to qualified 

immunity and Defendants’ Motion for Summary Judgment on Plaintiff’s unlawful 

arrest claim against Blanks is GRANTED. 

2. False Imprisonment (Count II)

As an analogous claim under his allegation of unlawful arrest, Plaintiff 

contends Defendants are liable for false imprisonment in violation of the Fourth 

Amendment.6 (Doc. 1, p. 2). “A false imprisonment claim under section 1983 is 

based on the protection of the Fourteenth Amendment against deprivations of 

liberty without due process of law.” Ortega v. Christian, 85 F.3d 1521, 1527 (11th 

Cir. 1996) (citing Baker v. McCollan, 443 U.S. 137, 142 (1979)). When probable 

cause is lacking to make the arrest, “the arrestee has a claim under section 1983 for 

false imprisonment based on the detention pursuant to that arrest.” Id.

As discussed above, probable cause existed to detain Plaintiff. Plaintiff failed 

to put forth substantial and probative evidence that disputes the claim of probable 

cause. Therefore, as a matter of law, Defendants are GRANTED summary 

judgment on Plaintiff’s unlawful imprisonment claim.

3. Malicious Prosecution (Count VI)

6 It is unclear whether Plaintiff brought a cause of action for false imprisonment 

strictly under state law or under both state and federal law. The caption of Count 

Two indicates state law and Plaintiff cites the applicable Alabama statute. 

However, he also alleges that Defendants’ conduct violated § 1983 in the same 

count. Therefore, the Court will address the federal aspect of this claim, too. The 

Court addresses the state law claim for false imprisonment infra at p. 31 et seq.

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 19 of 40
20

Plaintiff also alleges a § 1983 claim of malicious prosecution based on his

arrest and subsequent charge of evidence tampering.7 (Doc. 1, p. 6). The Eleventh 

Circuit “has identified malicious prosecution as a violation of the Fourth 

Amendment and a viable constitutional tort cognizable under § 1983.” Wood v. 

Kesler, 323 F.3d 872, 881 (11th Cir. 2010); accord Knellsen v. Mills, 517 F.3d 1232, 

1237 (11th Cir. 2008). A viable § 1983 malicious prosecution claim requires a 

plaintiff to prove two things: (1) the elements of a common law tort of malicious 

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

unreasonable seizures. Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 

2004). The common law tort of malicious prosecution has four elements: “(1) a 

criminal prosecution instituted or continued by the present defendant; (2) with 

malice and without probable cause; (3) that terminated in the plaintiff accused’s 

favor; and (4) caused damage to the plaintiff accused.” Wood, 323 F.3d at 882. 

Alabama’s elements for malicious prosecution follow the common law elements. 

Delchamps, Inc. v. Bryan, 738 So. 2d 824, 831–32 (Ala. 1999).

As established above, an arrest becomes constitutionally unreasonable if done 

without probable cause. Madiwale, 117 F.3d at 1324. Therefore, if probable cause 

7 In their reply, Defendants argue that Plaintiff added a state law malicious 

prosecution claim in his response to their motion for summary judgment and 

abandoned his federal malicious prosecution claim. Although Plaintiff spells out his 

malicious prosecution claim in his state law section of his response, he cites Wood v. 

Kesler, 323 F.3d 872 (11th Cir. 2003), which dealt with a § 1983 claim of malicious 

prosecution. Thus, Plaintiff’s incorporation of this response in the state law section 

is likely in error. The Court will evaluate the response against Defendants’ §1983 

malicious prosecution argument.

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 20 of 40
21

can be shown, a § 1983 malicious prosecution claim fails. Kjellsen, 517 F.3d at 

1237. Also, as with a claim of unlawful arrest, an officer raising the defense of 

qualified immunity must only show arguable probable cause to defeat a malicious 

prosecution claim. Grider, 618 F.3d at 1257 n. 25 (applying the “same ‘arguable 

probable cause’ standard in the qualified immunity context” for a § 1983 malicious 

prosecution claim).

Defendants again raise the defense of qualified immunity. It has been 

established that probable cause, or at least arguable probable cause, existed. This 

is enough to bar Plaintiff’s § 1983 malicious prosecution claim. But even it was not,

Plaintiff’s malicious prosecution claims fails for another reason. The deprivation of 

liberty alleged in a malicious prosecution claim must arise in conjunction with the 

judicial proceeding. Kingsland, 382 F.3d at 1235. “In the case of a warrantless 

arrest, the judicial proceeding does not begin until the party is arraigned or 

indicted.” Id. Therefore, an arrest is an insufficient deprivation of liberty because it 

occurred before the arraignment and “was not one that arose from malicious 

prosecution as opposed to false arrest.” Id. The only deprivation of liberty alleged 

is the point of arrest. A few hours later Plaintiff made bond and was released. 

Plaintiff presented no evidence that he was detained after arraignment. 

Therefore, as a matter of law, Defendants’ are GRANTED summary 

judgment on Plaintiff’s malicious prosecution claim.

4. Excessive Force (Count VII)

In conjunction with his claim of unlawful arrest, Plaintiff contends that the 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 21 of 40
22

force used against him was unconstitutionally excessive. (Doc. 1, p. 8). Defendants 

counter with a claim of qualified immunity and argue that simply being handcuffed 

and placed in a police car is not excessive. (Doc. 22, p. 17). It is agreed that the 

Fourth Amendment prohibits officers from using more force than is “objectively 

reasonable” under the circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989). 

A court, in evaluating this claim, must presume that the plaintiff’s version of events 

is true. Saucier, 533 U.S. at 201. The Supreme Court described the “objectively 

reasonable” standard to be applied in excessive force cases as a “careful balancing of 

the nature and quality of the intrusion on the individual’s Fourth Amendment 

interest against the countervailing governmental interests at stake.” Graham, 490

U.S. at 396 (internal quotations omitted). 

Despite this protection, the Fourth Amendment recognizes some necessary 

degree of physical force in an arrest. Id.; Durruthy v. Pastor, 351 F.3d 1080, 1094 

(11th Cir. 2003) (“This circuit has made clear that some use of force by a police 

officer when making a custodial arrest is necessary and altogether lawful, 

regardless of the severity of the alleged offense.”) And the proper degree of force 

requires “careful attention to the facts and circumstances of each particular case, 

including the severity of the crime at issue, whether the suspect poses an immediate 

threat to the safety of the officers or others, and whether he is actively resisting 

arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. The 20/20 

vision of hindsight is not the proper measure to judge reasonableness. Instead, it is 

judged from the perspective of the officer on the scene and must consider the fact 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 22 of 40
23

that officers are often forced to make split second decisions in often uncertain and 

rapidly evolving situations. Id. “[T]o determine whether the amount of force used 

by a police officer was proper, a court must ask whether a reasonable officer would 

believe that this level of force is necessary in the situation at hand” Lee v. Ferraro, 

284 F.3d 1188, 1197 (11th Cir. 2002) (internal quotations omitted). 

Given that some force is necessary to complete an arrest, the Eleventh 

Circuit recognized that “the application of de minimis force, without more, will not 

support a claim for excessive force in violation of the Fourth Amendment.” See

Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000). But the issue of de minimis 

force is not the same in an unlawful arrest situation. Bashir v. Rockdale County, 

445 F.3d 1323, 1332 (11th Cir. 2006). In such a case, any force is excessive. Id. 

And “[u]nder this Circuit’s law ..., a claim that any force in an illegal stop or arrest 

is excessive is subsumed in the illegal stop or arrest claim and is not a discrete 

excessive force claim.” Id. at 1331. Therefore, when there is a claim that the arrest 

or detention was illegal, the excessive force claim must present a “discrete 

constitutional violation relating to the manner in which an arrest was carried out,” 

which “is independent of whether law enforcement had the power to arrest.” Id. at 

1332. Such a rule is based on the rationale that to allow recovery for damages 

based on the illegal arrest and excessive force individually “would allow [a plaintiff] 

to receive double the award for essentially the same claims.” Id.

Plaintiff maintains that an objective interpretation of the facts show 

summary judgment should be denied. (Doc. 25, p. 11). He avers that the force used 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 23 of 40
24

was excessive because “he was handcuffed and shoved into a police car,” despite 

being accused of a misdemeanor, having no history of violence or criminal behavior, 

and not resisting. Id. Thus, “any force under these circumstances can be arguably 

excessive.” Id. In support of his claim, Plaintiff relies on Tennessee v. Garner, 471 

U.S. 1 (1985). But what Plaintiff fails to consider is that a claim of “any force” 

applied being excessive equates to a de minimis force claim, which fails if probable 

cause is found. As established supra, sufficient probable cause, or at least arguable 

probable cause, was present. Thus, handcuffing and placing Plaintiff in the police 

car is within the constitutional boundaries. Nolin, 207 F.3d at 1258 n. 4 (finding 

officer who shoved arrestee against a vehicle, placed him in handcuffs, and pushed a

knee into arrestee’s back used de minimis force when the arrest was lawful). 

Therefore, Plaintiff’s excessive force claim fails as a matter of law.

Even if the excessive force claim were viable, Plaintiff’s evidence does not 

show objectively unreasonable force. Although the crime Plaintiff was arrested for

was a misdemeanor offense, Plaintiff and the officers knew that his wife was

suspected of taking part in a spree of burglaries while using the Nissan Altima. 

Recorded surveillance footage of the impound lot showed Plaintiff making away 

with Altima, which constituted seized evidence associated with the burglaries. His 

association with evidence pertaining to the burglaries created a situation of 

heightened alert for officers. (Doc. 25-6, p. 9, ll. 5–7). It was reasonable, even if 

mistakenly so, for officers to believe that Plaintiff might fight back or flee, 

regardless of the charge being a misdemeanor or Plaintiff’s lack of criminal history. 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 24 of 40
25

Saucier, 533 U.S. at 205. Plaintiff even testified that officer Blanks told him he was 

being handcuffed for safety purposes. (Doc. 22-1, p. 66, l. 22–p. 67, l. 3). Given this, 

the present situation is the antithesis of the excessive force used by the police in 

Garner. See 471 U.S. at 1 (finding officer’s use of deadly force against a fleeing 

burglary suspect excessive where officer was “reasonably sure” suspect was 

unarmed and underage). 

Defendants’ motion for summary judgment on Plaintiff’s excessive force claim 

is GRANTED.

B. Failure to Train and Supervise (Count V) 8

Plaintiff alleges in his complaint that the City “was deliberately indifferent in 

its failure to provide adequate training and supervision to” its officers.9 (Doc. 1, p. 

6). He contends that “[t]his deliberate indifference is part and parcel of the culture 

8 It is unclear whether Plaintiff pleads Count V as a state law claim, federal claim, 

or both. In each of his other federal claims, he cites specifically to § 1983. He does 

not in Count V. However, he alleges deliberate indifference (constitutional 

terminology) on the part of the City and addresses it as a federal claim in his 

response to summary judgment. Thus, for safe measure, the Court reads this count 

as alleging both a state and federal claim.

9 Although Chief Riley is a named defendant, Plaintiff does not specifically name 

him in any one count. In fact, under the present claim, he specifically names the 

City as the culprit of the alleged constitutional deprivation. Plaintiff’s response to 

Defendants’ motion offers little, if any, clarification. Even if Plaintiff meant to 

allege an individual capacity claim against Chief Riley for failure to train and 

supervise, summary judgment would be due in Defendants’ favor. Plaintiff failed to 

put forth evidence that Chief Riley was personally involved in the arrest or has an 

unconstitutional policy or custom causally related to the arrest. See West v. 

Tillman, 496 F.3d 1321, 1328 (11th Cir. 2007). Further, Plaintiff failed to show that 

Chief Riley had actual or constructive notice that his officers or their training 

caused the violation of individuals’ constitutional rights in the past. Id. Instead, 

Plaintiff relies on what Chief Riley did or did not do after the arrest. He failed to 

show how action or inaction after this event is a constitutional violation.

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 25 of 40
26

of the Selma Police Department.” Id. Based on this, he brought suit against the 

City. Defendants counter that Plaintiff did not present evidence that the City had 

an unconstitutional policy or custom linked to Plaintiff’s arrest. (Doc. 22, p. 8).

In order to state a claim under § 1983 against the City, Plaintiff must allege 

that he suffered a constitutional injury, and that his injury was caused by “a policy 

statement, ordinance, regulation, or decision officially adopted and promulgated by 

that body’s officers.” Monell, 436 U.S. at 690. A municipality cannot be held liable 

under § 1983 solely because it employs a tortfeasor. Id. In Board of the County 

Commissioners of Bryan County v. Brown, the Supreme Court narrowed the Monell

test when it stated:

[I]t is not enough for a § 1983 plaintiff 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.

520 U.S. 397, 404 (1997). A plaintiff’s burden is heavy in a § 1983 official capacity 

claim. As the Eleventh Circuit articulated:

This high standard of proof is intentionally onerous for plaintiffs; 

imposing liability on a municipality without proof that a specific policy 

caused a particular violation would equate to subjecting the 

municipality to respondeat superior liability—a result never intended 

by section 1983. As the Supreme Court has explained, “‘[t]o adopt 

lesser standards of fault and causation would open municipalities to 

unprecedented liability under § 1983. In virtually every instance 

where a person has had his or her constitutional rights violated by a 

city employee, a § 1983 plaintiff will be able to point to something the 

city “could have done” to prevent the unfortunate incident. Thus, 

permitting cases against cities for their “failure to train” employees to 

go forward under § 1983 on a lesser standard of fault would result in 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 26 of 40
27

de facto respondeat superior liability on municipalities ....’” Id. at 391–

92 [(citing City of Canton v. Harris, 489 U.S. 378 (1989)].

Gold v. City of Miami, 151 F.3d 1346, 1351 n.10 (11th Cir. 1998). Under § 1983, the 

“requisite degree of culpability” is that the municipality acted with at least 

“deliberate indifference” to the consequences of its actions.

If an unconstitutional policy or custom is alleged, plaintiff must identify the 

policy or custom, connect the policy or custom with the government entity itself, and 

show that the particular injury was incurred because of the execution of that policy. 

Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984) (en banc). If plaintiff 

fails to allege an official policy or custom, then his claim against the municipality is 

subject to dismissal. See Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 

521, 535–33 (5th Cir. 1996). Moreover, the Eleventh Circuit has held that without 

notice of a need to train or supervise in a particular area, a municipality is not 

liable as a matter of law for any failure to train or supervise. Church v. City of 

Huntsville, 30 F.3d 1332, 1342–46 (11th Cir. 1994) (holding that the plaintiffs were 

not likely to succeed on the merits of their failure-to-train claim without proof that 

the City was aware of a prior incident in which constitutional rights were similarly 

violated); see also Popham v. City of Talladega, 908 F.2d 1561, 1564–65 (11th Cir. 

1990) (finding no liability for failure to train when no pattern of incidents put the 

City on notice of a need to train).

Here, Plaintiff builds his deliberate indifference allegation on what he 

classifies as an obvious inadequacy in training based upon officers being unable to 

discuss department policies during depositions, inability to identify the arresting 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 27 of 40
28

officer, and the arrest report “not provid[ing] any specifics.” (Doc. 25, 12). Plaintiff, 

however, fails to show that the City was the moving force behind these actions or

draw a causal connection to Plaintiff’s alleged harm. And as Defendants point out, 

just because an officer cannot give a perfect answer during a deposition regarding a 

policy or the law does not mean a municipality is liable for a failure to train. (Doc. 

27, p. 7) (citing Wynn v. City of Lakeland, 727 F. Supp. 2d 1309, 1316–17 (M.D. Fla. 

2010) (reasoning in analysis that an officer’s inability to correctly answer a question 

during deposition at most reflects that the officer “did not learn his training 

perfectly, not that the city failed to train properly”)). 

Moreover, Plaintiff’s claim against the City fails because he provided no

evidence that the City had prior notice that its training was constitutionally 

lacking. Instead, Plaintiff relies on what he alleges the City did after the fact --

failed to “talk with officers or investigate” the situation. (Doc. 25, p. 12). Without a 

showing of prior notice to accompany it, this allegation is insufficient to carry 

Plaintiff’s official capacity claim as a matter of law. See Skop, 485 F.3d at 1145 

(affirming a district court’s dismissal of a failure to train claim where no evidence of 

prior notice was provided). Thus, the City is GRANTED summary judgment on 

Plaintiff’s federal claim of inadequate training and supervision.

In addition to the city, Plaintiff sued each individual officer in his official 

capacity. Official capacity lawsuits, in contrast to individual capacity actions, 

“generally represent only another way of pleading an action against an entity of 

which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 465 (1985) 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 28 of 40
29

(quoting Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690 n.55 (1978). “Such suits 

against municipal officers are therefore, in actuality, suits directly against the city 

that the officer represents.” Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 

1991). Accordingly, the claims against Chief Riley, Muhannad, and Blanks in their 

official capacities are identical to, and duplicative of the charges against the City. 

Therefore, Chief Riley, Muhannad, and Blanks are GRANTED summary judgment 

on the official capacity claims. See Hardy v. Town of Hayneville, 50 F. Supp. 2d 

1176, 1185 (M.D. Ala. 1999) (dismissing § 1983 claims against city officials in their 

official capacity as duplicative under Graham).

V. LEGAL ANALYSIS OF STATE LAW CLAIMS

In addition to his federal claims, Plaintiff alleges six state law claims. (Doc. 

1). The claims of false imprisonment (Count II), negligence (Count III), assault and 

battery (Count VIII), invasion of privacy (Count IX), and wantonness (Count X) are 

brought against the officers in their individual capacities. Negligent hiring (Count 

IV) and negligent training and supervision (Count V) are brought against the City.

A. Individual Capacity Claims

In response to each individual capacity claim, Defendants contend summary 

judgment is due both as a matter of law and under Alabama’s statutory immunity 

afforded police officers. Before discussing each individual claim, it is necessary to 

outline the boundaries of the immunity in question.

In 1994, the Alabama Legislature enacted law providing immunity for 

municipal police officers exercising discretionary authority in certain 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 29 of 40
30

circumstances.10 Ala. Code § 6-5-338(a) (1975). Section 6-5-338(a) provides:

Every peace officer ... who is employed or appointed pursuant to the 

Constitution or statutes of this state, whether appointed or employed 

as such peace officer by the state or a county or municipality thereof ... 

shall at all times be deemed to be officers of this state, and as such 

shall have immunity from tort liability arising out of his or her conduct 

in performance of any discretionary function within the line and scope 

of his or her law enforcement duties.

Later on, the Alabama Supreme Court explained that “‘[t]he restatement of 

State-agent immunity as set out by this court in Ex parte Cranman, [792 So. 2d 392 

(Ala. 2000)], governs the determination of whether a peace officer is entitled to 

immunity under § 6-5-338(a).’” Ex parte City of Midfield, 161 So. 3d 1158, 1163 

(Ala. 2014) (quoting Ex parte City of Tuskegee, 932 So. 2d 895, 904 (Ala. 2005)) 

(alteration in original). Cranman outlined the test for State-agent immunity, in 

pertinent part, as follows:

A State agent shall be immune from civil liability in his or her 

personal capacity when the conduct made the basis of the claim 

against the agent is based upon the agent

***

(2) exercising his or her judgment in the administration of a 

department or agency, including, but not limited to, examples such as:

***

(d) hiring, firing, transferring, assigning, or supervising personnel; or

***

(4) exercising judgment in the enforcement of the criminal laws of the 

State, including, but not limited to, law-enforcement officers’ arresting 

10 Although case law and the statute use the term peace officer, this term is 

interchangeable or analogous to police officer. See Ex parte Brown, 182 So. 3d 495 

(Ala. 2015) (applying the statutory term “peace officer” to a “police officer” of the 

Fultondale Police Department).

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 30 of 40
31

or attempting to arrest persons....

792 So. 2d at 405. However, a police officer’s immunity is not without its limits. 

Section 6-5-388(a) has two exceptions:

(1) When the Constitution or law of the United States, or the Constitution 

of this State, or law, rules, or regulations of this State enacted or 

promulgated for the purposes of regulating the activities of a 

government agency require otherwise; or

(2) When the State agent acts willfully, maliciously, fraudulently, in bad 

faith, beyond his or her authority, or under a mistaken interpretation 

of the law.

Id. Later, the court addressed the fact that the immunity initially set for in § 6-5-

338(a) was broader than that enunciated in Cranman. Hollis v. City of Brighton, 

950 So. 2d 300, 309 (Ala. 2006). To reconcile this difference, immunity extends to 

all “circumstances entitling such officers to” the immunity originally anticipated in 

§ 6-5-338(a). Id. at 309. Much like the federal analysis of qualified immunity, the 

police officer bears the original burden of proving that a “plaintiff’s claims arise 

from a function that would entitle the [police officer] to immunity,” a discretionary 

action. Ex parte City of Montgomery, 99 So. 3d 282, 293 (Ala. 2012). Once this 

initial burden is met, the burden shifts to the plaintiff to show that an exception 

applies. Ex parte Kennedy, 992 So. 2d 1276, 1283 (Ala. 2008).

1. False Imprisonment (Count II)

In conjunction with his federal unlawful arrest claim, Plaintiff brought suit 

for false imprisonment under Alabama law, which “consists of the unlawful 

detention of the person of another for any length of time whereby he is deprived of 

his personal liberty.” Ala. Code § 6-5-170 (2001). An unlawful arrest will support a

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 31 of 40
32

claim for false imprisonment. Upshaw v. McArdle, 650 So. 2d 875, 878 (Ala. 1994). 

Defendants argue that the existence of probable cause for Plaintiff’s federal 

claim shows that, as a matter of law, summary judgment should be granted. (Doc. 

22, p. 19). In Alabama, “probable cause must exist to make a lawful arrest.” 

Franklin v. City of Huntsville, 670 So. 2d 848, 852 (Ala. 1995). Alabama’s standard 

for the existence of probable cause is the same as the federal standard. See

Nesmith v. Alford, 318 F.2d 110, 122 (5th Cir. 1963) (“The Alabama standard of 

probable cause in actions for malicious prosecution appears to be the traditional 

one.”)11; see also Walker v. Briley, 140 F. Supp. 2d 1249, 1262 (N.D. Ala. 2001) 

(applying the federal probable cause standard in a state law claim of false 

imprisonment).

Plaintiff relies on his federal unlawful arrest argument to survive summary 

judgment for this state law claim. (Doc. 25, p. 15). Because the Court has already 

established that probable cause was present, his state law false imprisonment claim 

fails as a matter of law.

Additionally, Blanks and Muhannad are due immunity under § 6-5-338(a). 

The actions leading up to and including an arrest are actions spelled out in 

Cranman. 792 So. 2d at 405. Thus, it was Plaintiff’s burden to show the willful, 

malicious, or bad faith actions of Blanks or Muhannad. Plaintiff fails to put forth 

any evidence towards this burden. Instead, he relies on being handcuffed and 

11 Fifth Circuit cases decided before October 1, 1981 are binding precedent in the 

Eleventh Circuit. Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 

1981).

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 32 of 40
33

detained until he made bond. (Doc. 25, p. 15). This is not enough. Thus, 

Defendants’ Motion for Summary Judgment on the state law claim of false 

imprisonment is GRANTED.

2. Negligence and Wantonness Claim (Count III & Count X)

In Counts Three and Ten, Plaintiff alleges negligence and wantonness, 

respectively, on the part of Muhannad and Blanks. (Doc. 1, pp. 5, 10). “This Court 

has previously held that poor judgment or wanton misconduct, an aggravated form 

of negligence, does not rise to the level of willfulness and maliciousness necessary to 

put the State agent beyond the immunity recognized in Cranman.” Ex parte 

Randall, 971 So. 2d 652, 664 (Ala. 2007); see also Adams v. City of Mobile, 2008 WL 

4531768, at * 10–11 (S. D. Ala. Oct. 9, 2008) (applying this principle). Because a 

police officer is immunized from liability for his negligent conduct, count Three 

must be dismissed. Likewise, Count Ten must be dismissed to the extent it 

purports to rest on the alleged wantonness of the officers. Adams, 2008 WL 

4531768, at *10-11. Therefore, Defendants are GRANTED summary judgment on 

Counts Three and Ten.

3. Assault and Battery (Claim VIII)

In Count Eight, Plaintiff alleges a state law claim of assault and battery 

based on being handcuffed and placed in the police car. (Doc. 1, p. 9). In Alabama, 

the elements of assault and battery are:

[A]n intentional, unlawful offer to touch the person of another in a 

rude or angry manner under such circumstances as to create in the 

mind of the party alleging the assault a well founded fear of an 

imminent battery, coupled with the apparent present ability to 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 33 of 40
34

effectuate the attempt if not prevented.... A successful assault 

becomes a battery, which consists of touching another in a hostile 

manner.

Wright v. Wright, 654 So. 2d 542, 544 (Ala. 1995). The Alabama Supreme Court, 

however, has stated, “In making the arrest, a police officer may use reasonable force 

and may be held liable only if more force is used than is necessary to effectuate the 

arrest.” Franklin 670 So. 2d at 852 (citing Ala. Code § 13A-3-27(a) (“A peace officer 

is justified in using that degree of physical force which he reasonably believe to be 

necessary, upon a person in order: (1) To make an arrest for a misdemeanor, 

violation or violation of a criminal ordinance ... unless the peace officer knows that 

arrest is unauthorized.”)) The evaluation of whether an assault and battery took 

place in regards to an arrest mirrors whether excessive force was used in a federal 

claim. See Walker v. City of Huntsville, 62 So. 3d 474, 494 (Ala. 2010); see also

Johnson v. Ashworth, 2014 WL 1331019, at *12 (S.D. Ala. Mar. 27, 2014) (applying 

the federal excessive force standard in an assault and battery claim).

Plaintiff insists that the Blanks handcuffing and pushing him in the police 

car was done in rudeness, anger, and/or in a hostile manner. (Doc. 1, p. 9; Doc. 25, 

p. 15). Plaintiff only offers his conclusory statements of officers’ attitude and failed 

to provide evidence of an actual “hostile manner.” Harper v. Winston County, 892 

So. 2d 346, 354 (Ala. 2004). As established supra, it was reasonable for officers to 

handcuff Plaintiff before taking him to the station given the heightened alert 

brought on by the burglaries. The video evidence showing Plaintiff removing the 

car added to this alert. Moreover, Plaintiff produced no evidence supporting the 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 34 of 40
35

proposition that officers “acted with the intent to injure or with ill will towards” him

in their actions leading up to and including his arrest, which is necessary to prove 

the willfulness, maliciousness, or bad faith exception to § 6-5-338(a) immunity. 

Rachel v. City of Mobile, Ala., 112 F. sup. 3d 1263, 1296 (S.D. Ala. 2015) aff’d sub 

nom. Rachel v. McCann, 2016 WL 424684 (11th Cir. Feb. 4, 2016). Thus, summary 

judge is GRANTED for Defendants on Plaintiff’s assault and battery claim.

4. Invasion of Privacy (Count IX)

In Count Nine, Plaintiff contends that Muhannad and Blanks intruded upon 

his solitude and seclusion when they entered his home on January 27, 2014. (Doc. 

1, p. 10). He bases this allegation on what he classifies as officers pursuing an 

unfounded investigation, five police vehicles coming to his home, and entering his 

home without a warrant or probable cause while he was “undressed.” (Doc. 25, p.

16).

Under Alabama law, a plaintiff has a viable claim for invasion of privacy in 

four distinct situations: “(1) the intrusion upon the plaintiff’s physical solitude or 

seclusion; (2) publicity which violates the ordinary decencies; (3) putting the 

plaintiff in a false, but not necessarily defamatory, position in the public eye; and 

(4) the appropriation of some element of the plaintiff’s personality for commercial 

use.” I.C.U. v. Investigations, Inc. v. Jones, 780 So. 2d 685, 689 (Ala. 2000). In this 

case, Plaintiff alleges an intrusion of the first nature. When the alleged intrusion 

deals with an investigation, the reviewing court must “determine the purpose for 

the investigation and ‘whether the thing into which there is intrusion or prying is, 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 35 of 40
36

and is entitled to be, private.’” Id. (quoting Hogin v. Cottingham, 553 So. 2d 525, 

528 (Ala. 1988)). Additionally, the investigation “must not be pursued in an 

offensive or improper manner.” Johnson v. Corporate Special Services, Inc., 602 So. 

2d 385, 387–88 (Ala. 1992). In other words, was the investigation done in such a 

manner “so as to outrage or to cause mental suffering, shame or humiliation to a 

person of ordinary sensibilities”? Jones, 780 So. 2d at 689 (internal quotations

omitted).

Defendants contend that summary judgment is due based on the protections 

of § 6-5-338(a). Further, Defendants argue that the facts show the investigation 

and subsequent entry into Plaintiff’s home is in accordance with the law above. 

(Doc. 22, p. 21). A police officer’s investigation is a “discretionary function within 

the line and scope of ... law enforcement duties” for the purpose of § 6-5-338(a). 

Grider, 618 F.3d at 1268; see also Ex parte Butts, 775 So. 2d 173, 178 (Ala. 2000). 

Therefore, Plaintiff bears the burden to show malice, willfulness, actions beyond 

authority, bad faith, or actions taken under a mistaken interpretation of law to

remove immunity. Plaintiff puts forward no evidence showing Blanks or Muhannad 

“had a personal ill will against [Plaintiff] and that they either maliciously or in bad 

faith [entered his home] solely for purpose of harassment.” Couch v. City of 

Sheffield, 708 So. 2d 144, 153–54 (Ala. 1998) overruled on other grounds Ex parte 

City of Tuskegee, 932 So. 2d 895, 904 (Ala. 2005). Thus, § 6-5-338(a) immunity 

applies to this count.

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 36 of 40
37

Even if immunity is improper, the facts are not present to reach the required

standard when read in a light most favorable to Plaintiff. It has already been 

established that the car, which had been seized as evidence, was missing and 

surveillance footage established that Plaintiff removed it. Thus, the purpose of the 

investigation was legitimate. How officers chose to investigate Plaintiff’s culpability 

fell within their discretion. Key v. City of Cullman, 826 So. 2d 151, 158 (Ala. Crim. 

App. 2001). It was reasonable to take more than one officer to Plaintiff’s house to 

investigate the removal of evidence connected with a spree of burglaries. 

With that said, the Court does recognize that what a person wears behind 

closed doors is protected from prying eyes based on the law above. But when 

Plaintiff decided to answer the door in like manner, he presented it for those who 

come to call. See Jones, 780 So. 2d at 689 (finding an investigator’s filming of Jones 

urinating from his front porch that was open to a passerby is not a wrongful 

invasion of privacy). Furthermore, by his own account, Plaintiff is the one that 

allowed officers into his home when he asked to change clothes. (Doc. 22-1, p. 59, ll. 

2–17). For safety purposes, the officers had a right to escort Plaintiff into the house. 

Washington v. Chrisman, 455 U.S. 1, 5 (1982) (reasoning that an officer has a right 

to remain at an arrestee’s elbow because every arrest is presumed to present a risk 

of danger). If a police escort after making a request to change clothes is an invasion

of privacy under state law, Plaintiff failed to put before this Court the relevant 

authority. Therefore, Defendants’ Motion for Summary Judgment of Count Nine, 

the invasion of privacy claim, is GRANTED.

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 37 of 40
38

B. Negligent Hiring, Training, and Supervision (Count IV & V)

In Counts Four and Five, Plaintiff alleges that the City is liable for 

negligently hiring unqualified officers (Doc. 1, p. 5) and negligently training and 

supervising its officers in light of the serious consequences that could result from its 

negligence (Doc. 1, p. 6). Defendants argue that, although there may be a question 

of whether a cause of action against the City is available, it nonetheless fails in this 

case because of the City’s immunity. (Doc. 22, p. 22). 

Historically, “no Alabama court has expressly recognized a cause of action 

against a municipality for a supervisor’s negligent training or supervision of a 

subordinate.” Borton v. City of Dothan, 734 F. Supp. 2d 1237, 1258–59 (M.D. Ala. 

2010); Hamilton v. City of Jackson, 508 F. Supp. 2d 1045, 1057–58 (S.D. Ala. 2007); 

Ott v. City of Mobile, 169 F. Supp. 2d 1301, 1314–15 (S.D. Ala. 2001). The parties

point out, however, that the Alabama Supreme Court recently called the foundation 

of this principle into question. Ex parte City of Montgomery, 99 So. 3d 282, 289 

(Ala. 2012); see also Howard v. City of Demopolis, Ala., 984 F. Supp. 2d 1245, 1260 

(S.D. Ala. 2013) (evaluating Montgomery in the context of a negligent hiring, 

training, and supervision claim against a municipality). In Montgomery, the court 

rejected a municipality’s claim of immunity because of its “fail[ure] to identify the 

individual or individuals specifically charged with the hiring, training, and 

supervision of the police officers, much less whether the individual or individuals 

are police officers entitled to State-agent immunity.” Id. at 299; see also Ex parte 

City of Midfield, 161 So. 3d 1158, 1169 (Ala. 2014) (reaffirming the principle that it 

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 38 of 40
39

is necessary for the municipality to identify whether the hiring, training, or 

supervising person is a police officer in deciding whether a municipality is immune). 

The need to identify the hiring training and supervising individual is based on the 

well-established principle that, “if a municipal peace officer is immune pursuant to 

§ 6-5-338(a), then pursuant to § 6-5-338(b), the city by which he is employed is also 

immune.” Montgomery, 99 So. 3d 282 at 298. 

In deciding the present motion, the undersigned need not evaluate whether, 

generally speaking, a cognizable claim lies against a municipality if the hiring, 

supervising, and training employee is not a police officer. Defendants assert that 

Chief Riley is the person in charge of hiring, training, and supervising Selma’s 

police officers. (Doc. 22, p. 23; Doc. 27, p. 14). Plaintiff does not contest this point, 

and indeed identifies the nexus of this claim as a failure of the “leadership of Chief 

Riley.” (Doc. 25, pp. 18–19). Hiring, training, and supervising a subordinate officer 

are specifically spelled out as actions protected by immunity. Cranman, 792 So. 2d 

at 405. Thus, Plaintiff needs to show malice, willfulness, fraudulent behavior, bad 

faith, or actions beyond Chief Riley’s authority. Moreover, if a cognizable claim lies, 

Plaintiff must put forth “affirmative proof” that, assuming the officers were 

incompetent, Chief Riley or the City had actual or constructive notice of such. 

Howard, 984 F. Supp. 2d at 1260. Plaintiff failed to provide evidence of either 

requirement. Thus, Plaintiff’s final claim fails as a matter of law, and Defendants

are GRANTED summary judgment on Counts IV and V.

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 39 of 40
40

VI. CONCLUSION

For the reasons stated above, Defendants’ Motion for Summary Judgment 

(Doc. 21) is GRANTED.

DONE and ORDERED this 8th day of April, 2016.

/s/ Callie V. S. Granade

SENIOR UNITED STATES DISTRICT JUDGE

Case 2:14-cv-00586-CG-M Document 41 Filed 04/08/16 Page 40 of 40