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Scarbrough v. Myles

United States District Court, S.D. Alabama, Southern Division
Jul 28, 2000
Civil Action No. 99-0526-BH-M (S.D. Ala. Jul. 28, 2000)

Opinion

Civil Action No. 99-0526-BH-M

July 28, 2000


ORDER


This action is before the Court on defendants' motion for summary judgment (Docs. 18 through 20). Upon consideration of the motion, plaintiffs' brief in opposition thereto (Doc. 22), as amended (Docs. 25 and 26), and defendants' reply brief (Doc. 27), the Court concludes that the motion is due to be granted in part and denied in part. Specifically, the Court concludes that no genuine issue of material fact exists with respect the City of Mobile and that the City of Mobile is entitled to judgment in its favor as a matter of law. However, with respect to the claims against the remaining defendants, Officer Chuck Hall and Corporal Bryant Myles, the Court concludes that there exists genuine issues of material fact which preclude summary judgment in their favor.

Plaintiffs' motion for leave to file amended documents (Doc. 24) be and is hereby GRANTED.

STATEMENT OF THE CASE

This litigation arises out of an incident which occurred on April 6, 1997, at the Mobile Flea Market located on Schillinger's Road in Mobile, Alabama. The following facts have either been stipulated by the parties or is supported by the evidence of record.

The plaintiffs, Tammy Scarbrough and Carol Davis, worked part-time for Marion Douglas who had a booth at the Mobile Flea Market. Scarbrough and Davis sold jewelry for Mr. Douglas at the booth on random Saturdays and Sundays and had done so for several years before the incident. See, Agreed Facts (Doc. 28) 1 through 3.

Defendant Chuck Hall is an officer with the Mobile Police Department. Defendant Bryant Myles is a corporal with the Mobile Police Department. On April 6, 1997, Officer Hall, Corporal Myles and Officer Adam Walker went to the Mobile Flea Market accompanied by Jim Holder and Norman Johansen, the former identified as an investigator who works for a number of corporations in the area of trademark protection and both identified as experts in identifying counterfeit goods. Hall, Myles and Walker were all wearing plain clothes and made numerous purchases at the Mobile Flea Market. See, Agreed Facts 5 through 9.

Officer Hall purchased a pendant bearing a Nike trademark from Tammy Scarbrough. Officer Hall then purchased another pendant bearing a Nike trademark from Carol Davis. Officer Hall took these purchases to Jim Holder. See, Agreed Fact 10. In his affidavit dated December 4, 1998, Officer Hall testified that Jim Holder verified that the goods he purchased from the plaintiffs "used unauthorized trademarks" and that "[b]ased on Ms. Scarbrough's and Ms. Davis' sale of cheaply priced goods bearing unauthorized trademarks, which they sold in close proximity to other goods bearing unauthorized trademarks [being sold from another booth], I decided there was sufficient probable cause for their arrest." Hall Affidavit in Scarborough v. Nike, Inc., CV-M-98-456-P.C. (Plaintiffs' Evidentiary Item 11 (Doc. 26)).

Officer Hall then returned to Marion Douglas' booth and arrested Tammy Scarbrough and Carol Davis. Officer Hall advised Ms. Scarbrough and Ms. Davis that they were under arrest for theft of trademark and handcuffed them together. See, Agreed Fact 11. Officer Hall ordered that Ms. Scarbrough and Ms. Davis remain at their booth while he went to other booths and arrested other alleged sellers of counterfeit goods. A total often (10) individuals were arrested by the Mobile Police that day. Defendants' Brief (Doc. 19) at 2. After a period of time the plaintiffs were taken to another part of the Flea Market where all of the sellers who had been arrested that day were gathered. Ms. Scarbrough and Ms. Davis were transported to Mobile Police Headquarters along with the other arrestees and eventually to the Mobile Metro Jail. Id. Plaintiffs' employer, Marion Douglas, posted bond for the plaintiffs and they were released that night. Id.

Although denied by Officer Hall, the plaintiffs each contend that Jim Holder, the expert upon which Officer Hall indisputably relied as his basis for probable cause, advised Hall that "he should consider not arresting Scarbrough and Davis because the statute required knowledge" and "they did not admit knowing the jewelry was unauthorized." Plaintiffs' Brief in Opposition (Doc. 25) at 4.

According to the plaintiffs, the officers "spent all afternoon taking inventory of the counterfeit clothing articles of other arrestees [and they] remained at or near Douglas' booth, handcuffed for customers and friends at Market to observe." Plaintiffs' Brief in Opposition at 4.

On June 19, 1997, a preliminary hearing was held before the Honorable Herman Y. Thomas, District Court Judge for Mobile County, Alabama. See, Agreed Fact 15. Corporal Myles testified at this hearing that a letter had been sent by Nike Corporation advising against the sale of "these type of items" and that he, himself, "went out there and saw it, personally, on the cartboard [sic] right outside the office at the flea market." Defendants' Exhibit 7 at 16 and 17, Judge Thomas ruled, based on the evidence presented at the preliminary hearing, that there was probable cause to bind the plaintiffs to the grand jury. See, Agreed Fact 15.

Defendants have proffered no evidence to establish that either of the plaintiffs, mere employees of Marion Douglas who purchased the merchandise in question and held it out for sale to the public, had any knowledge that the merchandise was unauthorized and/or that its sale would constitute theft of a trademark in violation of Ala. Code § 13A-8-10(b).

The charges against the plaintiffs were subsequently no billed by the mobile County grand jury. See, Agreed Fact 16. On or about January 15, 1998, Ms. Scarbrough and Ms. Davis filed verified claims with the Clerk's Office of the City of Mobile.

CONCLUSIONS OF LAW

The plaintiffs acknowledge that the City of Mobile cannot be held liable in an action brought pursuant to 42 U.S.C. § 1983 for the conduct of a police officer under the theory of respondeat superior. The City could only be liable when the alleged act or acts were performed pursuant to a custom or practice adopted, endorsed or approved by the City. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See also, Gold v. City of Miami, 151 f.3d 1346, 1350 (11th Cir. 1998) ("There is no respondeat superior liability making a municipality liable for the wrongful actions of its police officers in making a false arrest."); Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994) ("[M]unicipal liability may be based upon (1) an action taken or policy made by an official responsible for making final policy in that area of the city's business; or (2) a practice or custom that is so pervasive, as to be the functional equivalent of a policy adopted by the final policymaker."). As to this requirement, plaintiffs allege only that "[p]roviding police officers to assist large private corporations in undercover operations to help protect the corporations' trademarks was a custom or practice endorsed by the City of Mobile." Plaintiffs' Brief in Opposition at 19. The Court must agree with the defendants that plaintiffs' allegation amounts to no more than the contention that the City has a policy of enforcing state laws. Plaintiffs have failed to assert, and have proffered no evidence to establish, the existence of any policy to deprive them of their constitutional rights. Plaintiffs themselves concede that the undercover operations similarly conducted in 1993 and 1995 "did not cause the City any liability problems." Id. There is, therefore, no evidence of any custom or practice or arresting innocent vendors at the Mobile Flea Market and falsely charging them with theft of trademarks. The Court also agrees that there is no evidence that the City was aware that the undercover operation at issue would lead to the alleged police misconduct or to the violation of any citizen's constitutional rights. Plaintiffs have thus failed to state a claim against the City of Mobile for which relief can be granted under § 1983 and the City is entitled to judgment on this claim as a matter of law.

The remaining claims against the City are barred by Ala. Code § 6-5-338 which became effective on April 26, 1994. See e.g., Sheth v. Webster, 145 F.3d 1231, 1236 (11th Cir. 1998); Crouch v. Whatley, 900 F. Supp. 1567, 1572 (M.D. Ala. 1995). The Court agrees that § 6-5-338 could not have been effective at the time the claims at issue in Franklin v. City of Huntsville, 670 So.2d 848 (Ala. 1995), accrued as evidenced by the Alabama Supreme Court's lack of any reference to the statute. Consequently, plaintiffs' reliance on Franklin is misguided.

In 1994, the Alabama legislature enacted § 6-5-338, which provides, in pertinent part:

"(a) Every peace officer, except constables, 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, or by an agency or institution, corporate or otherwise, created pursuant to the Constitution or laws of this state and authorized by the Constitution or laws to appoint or employ police officers or other peace officers, and whose duties prescribed by law, or by the lawful terms of their employment or appointment, include the enforcement of, or the investigation and reporting of violations of, the criminal laws of this state, and who is empowered by the laws of this state to execute warrants, to arrest and to take into custody persons who violate, or who are lawfully charged by warrant, indictment, or other lawful process, with violations of, the criminal laws of this state, 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.
(b) This section is intended to extend immunity only to peace officers and governmental units or agencies authorized to appoint peace officers. . . .

Ala. Code § 6-5-338 (1975).

Plaintiffs reliance on Luckie v. City of Montgomery, 1999 WL 64930 (Ala.Civ.App. 1999), is also misguided. As the Luckie court concluded, "[§ 6-5-338] extends discretionary function immunity to municipal police officers unless the officer's conduct is so egregious as to amount to willful or malicious conduct or conduct engaged in bad faith." Luckie, slip op. at 3, citing, Couch v. City of Sheffield, 708 So.2d 144 (Ala. 1998). The Luckie court identified sufficient evidence to raise a question of fact regarding whether the arrest at issue "was in bad faith or done maliciously or a willful intent." Id. at 4. No such evidence of egregiousness has been presented in the case at bar.

Plaintiffs state law tort claims against the City of Mobile are also barred because the plaintiffs failed to file a notice of claim with the City of mobile within six months of the date of accrual as required by Ala. Code § 11-47-23. See, Couch, 708 So.2d at 154 ("[Section] 11-47-23 required [plaintiff] to file a notice of his state law claims with the City within six months of the accrual of his causes of action [and] [a] cause of action is deemed to have accrued under § 11-47-23 when an action can be maintained."). Plaintiffs do not dispute that their false arrest, assault and battery and negligence claims accrued on April 6, 1997, and that they were required under § 11-47-23 to file a notice of claim with the City by October 6, 1997. It has been stipulated that plaintiffs verified claims were not filed until January 15, 1998. Plaintiffs' claims are therefore barred. See, Couch, 708 So.2d at 154; Frazier v. City of Mobile, 577 So.2d 439, 440 (Ala. 1991).

Section 11-47-23 of the Alabama Code provides:

All claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from the accrual of said claim or shall be barred. Claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred.

Ala. Code § 11-47-23 (1975).

In contrast to the claims against the City of Mobile, the Court concludes that there is sufficient evidence to demonstrate the existence of material issues of fact concerning the liability of Officer Hall and Corporal Myles to preclude summary judgment on the officers' claim for qualified immunity. The Court specifically finds that, inter alia, material questions exist as to whether Officer Hall was told by his expert that he had no grounds to arrest the plaintiffs because there was insufficient evidence that they knew the merchandise at issue was unauthorized and whether Corporal Myles deliberately lied about the existence of a letter from Nike warning against the sale of unauthorized merchandise in an effort to establish probable cause otherwise lacking for the arrest of the plaintiffs. This Court is, therefore, unable to conclude that a reasonable officer would have believed that his failure to release the plaintiffs immediately upon being advised by the expert upon which he relied for a determination of the existence of probable cause would not then constitute false arrest and be lawful in light of clearly established law. See e.g., Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499, 1503 (11th Cir. 1990), citing, inter alia, Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986), Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986) (The qualified immunity defense "provides ample protection to all except the plainly incompetent or those who knowingly violate the law."). Nor can this Court conclude that a reasonable officer would believe that it was lawful to commit perjury in order to establish the probable cause necessary for the district court to bind a defendant over to the grand jury. Officer Hall and Corporal Myles are not, therefore, entitled to the qualified immunity they seek in their motion for summary judgment.

Defendants have cited no authority, and the Court has found none, for the proposition that Corporal Myles' alleged perjury at the preliminary hearing is inconsequential because it was not elicited by the assistant district attorney.

CONCLUSION AND ORDER

For the reasons cited above, the Court concludes and it is therefore ORDERED that defendants' motion for summary judgment (Docs. 18 through 20) is due to be and is hereby GRANTED with respect to all claims asserted against the City of Mobile but DENIED as to the claims against Officer Chuck Hall and Corporal Bryant Myles. The City of Mobile is entitled to judgment as a matter of law which shall be entered at the conclusion of this litigation.


Summaries of

Scarbrough v. Myles

United States District Court, S.D. Alabama, Southern Division
Jul 28, 2000
Civil Action No. 99-0526-BH-M (S.D. Ala. Jul. 28, 2000)
Case details for

Scarbrough v. Myles

Case Details

Full title:TAMMY SCARBROUGH and CAROL C. DAVIS, Plaintiffs, v. BRYANT MYLES, et al.…

Court:United States District Court, S.D. Alabama, Southern Division

Date published: Jul 28, 2000

Citations

Civil Action No. 99-0526-BH-M (S.D. Ala. Jul. 28, 2000)