And v. Miller

Decision Date25 February 2011
Docket NumberCIVIL ACTION NO. 09-0694-CG-B
PartiesJENNIFER ANN CLARK and ANGELA STEVENS, Plaintiffs, v. OFFICER JOHN MILLER, et al., Defendants.
CourtUnited States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
MEMORANDUM OPINION AND ORDER

This cause is before the court on motion of defendants, Allan Carpenter and John Miller, for summary judgment (Doc. 33), the motion of defendants, Vincent Hertz and Mobile County, for summary judgment (Doc. 34), plaintiffs' opposition to both motions (Doc. 36), and defendants' replies in support of their motions for summary judgment (Docs. 42, 43). For the reasons that will be explained below, the court finds that Hertz, Miller and Carpenter are entitled to qualified immunity for plaintiffs' unlawful arrest claims. The court also finds that Mobile County's policies were not the moving force behind plaintiffs' alleged constitutional injuries. As such, summary judgment is due to be granted as to plaintiffs' claims for unlawful arrest and as to their § 1983 claims against Mobile County. The court further finds that summary judgment is due to be granted to the extent that plaintiffs' claims are asserted against the officers in their official capacity. In all other respects, the motions for summary judgment will be denied.

FACTS

This case arises from events that occurred on November 1, 2007. On that date, defendant Vincent Hertz, a Mobile County Animal Control Officer I, responded to complaints about dogsrunning loose in the area of John Semmes Road. (Doc. 34-2). Hertz had previously responded to similar complaints and had left warnings at 4500 John Semmes Road. (Doc. 34-2).

Mobile County adopted a Dog Control Ordinance in 1986 which includes the following:

SECTION 1-4. RUNNING AT LARGE PROHIBITED

(a) CONFINEMENT OF DOGS ON PRIVATE PREMISES. It shall be unlawful and punishable as a misdemeanor for any person owning, keeping, possessing, harboring or maintaining a dog to cause, permit or allow such dog to be at large on or about any place, lot or premises or portion of same within the county.

(b) RESTRAINT OF DOGS IN PUBLIC PLACES AND OFF PREMISES. It shall be unlawful and punishable as a misdemeanor for any person owning, keeping, possessing, harboring or maintaining a dog to cause, allow or permit such dog to run or be at large upon any street, alley, thoroughfare, sidewalk or public place in the county.

* * * *

SECTION 1-6. IMPOUNDMENT OF DOGS FOUND AT LARGE; REDEMPTION PROCEDURE; DISPOSITION OF UNREDEEMED DOGS.

Any dog which is found at large on any street, sidewalk, alley, thoroughfare or other place in the county shall be caught and taken by the chief animal control officer, his deputies and assistants and impounded in the City of Mobile Pound. Once accepted by the City of Mobile Pound such dog shall become subject to all rules, procedures and regulations held in force by the City of Mobile.

* * * *

SECTION 1-9. IMPOUNDING OF DOGS UPON PREMISES OF OTHER THAN OWNER.

Any dog, whether wearing an inoculation tag or not, which is found upon the premises of a person other than the owner or keeper thereof shall, at the request of the owner of such premises or his duly authorized representative, be impounded by the chief animal control officer, his deputies and assistants, and members of the Mobile County Sheriff's Department, or the humane officer as provided in this article....

SECTION 1-10 INTERFERENCE WITH ENFORCEMENT OF ARTICLE.

(a) It shall be unlawful and punishable as a misdemeanor for any person to hinder, molest or interfere with any person authorized or empowered to perform any duty under this article

(Doc. 33-3, pp. 64-65).

On November 1, 2007, Hertz observed two dogs roaming at large at the end of the driveway at 4500 Semmes Road. (Doc. 34-2). According to Hertz, the dogs were running in between the driveway and the street. (Doc. 38-4, p. 14). Hertz testified that when he pulled up, he blew the horn and then saw one of the dogs run into the house, a 20 lb. Schnauzer. (Doc. 38-8, Doc. 38-2, ¶ 5). Hertz knocked on the door and the owner of the dog that had run in, plaintiff, Jennifer Ann Clark, came to the door with her brother. (Doc. 34-2, Doc. 38-2, ¶¶ 14, 15). The other dog did not belong to the plaintiffs. Hertz discussed the situation with Clark and told her that she had to give him her dog. (Doc. 38-2, ¶ 19). According to Hertz, it was the department's policy that when he witnessed a dog roaming at large, he should ask them to turn over the dog to be impounded, even if the dog is currently confined in the house. (Doc. 38-4, p. 10). Clark told Hertz that her dog does not leave the yard and could not have been the dog that had been complained about. (Doc. 38-2, ¶¶ 21, 22). According to Hertz, Clark began cursing and became irate. (Doc. 34-2, ¶¶ 6, 7). Clark denies having cursed during the conversation, but states that she refused to turn over the dog. (Doc. 38-2, ¶¶ 25, 29). According to Clark, Hertz threatened her with arrest, saying that she could do it the easy way or the hard way. (Doc. 38-2,}} 28, 29). Clark and her brother told Hertz to leave and she closed her door. (Doc. 38-2, ¶¶ 30, 31). Clark called her friend, plaintiff, Angela Stevens, to come to her house to assist Clark. (Doc. 38-2, ¶ 33). Hertz called his dispatch who then contacted the Sheriff's Office. (Doc. 34-2, ¶ 9). Clark also called the Sheriff's Office for assistance. (Doc. 33-3, pp. 51, 52). Hertz then waited in his truck. (Doc. 34-2, ¶ 9).

Defendant, Officer John Miller, arrived on the scene first. (Doc. 33-3, p. 4). Upon arriving at the scene, the officer walked up to the front porch of Clark's home. (Doc. 38-2, ¶ 35).

Shortly thereafter, defendant, Officer Alan Carpenter, who had been advised that a Mobile County Animal Control Officer needed assistance, also responded to the call and walked up to the porch. (Doc. 33-3, p. 7; Doc. 38-2, ¶ 35). Clark told the officers that her dog was not at large. (Doc. 38-2, ¶ 36). Officer Miller told Ms. Clark that the Animal Control Officer had told him that he had the paperwork to pick up the dog. (Doc. 33-3, p. 8). According to the officers, Clark was irate, refused to hand over her dog and was screaming, using profanity, and making racial remarks towards the Animal Control Officer. (Doc. 33-3, p. 8). Clark reports that she called Animal Control and attempted to give the phone to the deputies so they could talk to them, but the officers would not take the phone. (Doc. 38-2, ¶ 39).

Plaintiff, Angela Stevens, arrived in her automobile and walked up to the porch. (Doc. 33-3, p. 8; Doc. 38-3, ¶¶ 4, 5). According to Hertz and the officers, Stevens told them she was there to pick up the dog. (Doc. 33-3, p. 8; Doc. 34-2, pp. 31-32). Stevens denies saying she was there for the dog, reporting instead that she was there to pick up Clark's baby. (Doc. 38-3, ¶ 21). When Stevens arrived, Clark attempted to go inside and close the door to talk with her in private, but Officer Miller moved forward and stopped the door from closing. (Doc. 38-3, ¶¶ 41, 42). A physical altercation then began which defendants describe very differently than plaintiffs. Under plaintiffs' version, the officers charged in the door and knocked both Ms. Stevens and Ms. Clark to the ground. (Doc. 38-2, ¶¶ 42, 43; Doc. 38-3, ¶ 13). Officer Miller reportedly got on Stevens' back and tasered her several times, then pulled her arms around her back and handcuffed her. (Doc. 38-3, ¶ 13). Clark reports that she was shocked, pushed and thrown against the wall. (Doc. 38-2, ¶ 47). At her deposition, Clark reported that one of the officers tasered her, once in her chest and twice in her stomach. (Doc. 33-3, p. 59). Clark started to kick the officer and hegrabbed her by her arm and slung her across the porch. (Doc. 33-3, p. 60). Clark was also handcuffed and then they were both dragged to the patrol car and put inside. (Doc. 38-2, ¶ 46). Hertz reports that he was then instructed by the officers to go and retrieve the dog from Ms. Clark's home, which he did. (Doc. 34-2, p. 32). Ms. Clark's father and stepmother came to the house while Clark and Stevens were still in the patrol car. (Doc. 38-3, ¶ 19).

Clark and Stevens were both seen at Mobile Infirmary on the day of the incident. Clark's medical records report that there was no evidence of trauma to her body. (Doc. 33-3, p. 32). Clark was ten weeks pregnant at the time and could not be x-rayed. (Doc. 33-3, pp. 29, 30). Stevens, who has cerebral palsy, states that she suffered severe bruises and contusions over her body. (Doc. 38-3, ¶¶ 16, 17, 20). Stevens' medical records show that she had 3-4 taser marks, she experienced pain on movement of her neck, and that she had a sprained ankle (Doc. 33-3, pp. 38, 39, 43). Stevens was prescribed Lortab when discharged from the hospital that day. (Doc. 33-3, pp. 39, 43).

Plaintiffs were charged with resisting arrest and obstruction of a governmental operation. (Doc. 38-3, ¶ 14; Doc. 38-1, p. 2). The cases were tried in the District Court of Mobile County and both Clark and Stevens were found guilty. (Doc. 1, ¶ 38). Clark and Stevens appealed the decision to the Circuit Court of Mobile County, Alabama. (Doc. 1, ¶ 38). The Circuit Court of Mobile County dismissed the complaints against Clark and Stevens. (Doc. 38-1). The Circuit Court reasoned as follows:

The obstructing governmental operations complaint against Clark charges her with refusing to turn over an animal to animal control. However, the plain language of the ordinance does not place a duty upon a dog owner to "turn over" a dog to be impounded under section 1-6 of the ordinance. Section 1-6 of the Dog Ordinance, by its express terms, provides that a dog "found at large. shall becaught... and impounded..." Clark's dog was observed at large, but the dog was not found and caught at large.

The plain language of the statute indicates that the intent of section 1-6 is to allow dogcatchers to catch and impound dogs found at large, not to require dog owners...

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