Childress v. L.P., Case No. 2:12–cv–0117–MEF.

• Decision Date: 30 April 2013
• Docket Number: Case No. 2:12–cv–0117–MEF.
• Citation: 943 F.Supp.2d 1332
• Parties: Olaf CHILDRESS, Plaintiff, v. L.P. WALKER, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

943 F.Supp.2d 1332

Olaf CHILDRESS, Plaintiff,

v.L.P. WALKER, et al., Defendants.

Case No. 2:12–cv–0117–MEF.

United States District Court,

M.D. Alabama,

Northern Division.

April 30, 2013.

Leroy Alan Cobb, Cobb Law Firm LLC, Anniston, AL, Mary M. Alexander–Oliver, The Oliver Group, LLC, Montgomery, AL, for Plaintiff.

Stacy Lott Reed, City Attorney's Office, Montgomery, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

MARK E. FULLER, District Judge.

This matter is before the Court on the Motion for Summary Judgment (Doc. # 15) filed by Defendants L.P. Walker (“Walker”), O.V. Chavez ¹ (“Chavez”), and Kevin Murphy (“Murphy”) (collectively, “Defendants”) on January 28, 2013. The Court has reviewed the submissions of the parties and finds that, for the reasons set forth below, the Defendants' motion is due to be GRANTED IN PART and DENIED IN PART.

I. JURISDICTION AND VENUE

This Court has subject matter jurisdiction over the claims in this action under 28 U.S.C. §§ 1331 and 1343. The parties do not contest personal jurisdiction or venue, and the Court finds adequate allegations in support of both.

II. STANDARD OF REVIEW

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party asking for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrates the absence of a genuine issue of material fact.” Id. at 323, 106 S.Ct. 2548. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322–23, 106 S.Ct. 2548.

Once the moving part has met its burden, the non-moving party must “go beyond the pleadings and by [its] 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, 106 S.Ct. 2548. To avoid summary judgment, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On the other hand, a district court ruling on a motion for summary judgment must believe the evidence of the non-movant and must draw all justifiable inferences from the evidence in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). After the non-moving party has responded to the motion for summary judgment, the district court must grant summary judgment if there is no genuine dispute of material fact and the moving party is entitled to a judgment as a matter of law. SeeFed.R.Civ.P. 56(c).

III. PROCEDURAL HISTORY

On January 11, 2012, Plaintiff Olaf Childress (“Childress”) filed suit in the Circuit Court of Montgomery County, Alabama against Walker, Chavez, Murphy, and the City of Montgomery Police Department.² On February 7, 2012, this action was timely removed to this Court by Walker, Chavez, and Murphy, who invoked this Court's subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. On March 2, 2012, the Court dismissed the City of Montgomery Police Department from this action for lack of subject matter jurisdiction, as police departments are not considered legal entities subject to suit under § 1983. (Order, Doc. # 9.)

All of Childress's claims against Walker, Chavez, and Murphy, the three remaining defendants, are brought pursuant to 42 U.S.C. §§ 1983 and 1985 for damages for alleged violations of his constitutional rights. Specifically, the Complaint asserts the following claims: (1) deprivation of Childress's First Amendment rights in violation of 42 U.S.C. § 1983 (Count I); (2) deprivation of Childress's Fourth Amendment rights through false imprisonment in violation of 42 U.S.C. § 1983 (Count II); (3) deprivation of Childress's Fourth Amendment rights through unlawful arrest in violation of 42 U.S.C. § 1983 (Count III); (4) intentional infliction of emotional distress in violation of 42 U.S.C. § 1983 (Count IV); (5) deprivation of Childress's Fourth and Fourteenth Amendment rights through abuse of authority in violation of 42 U.S.C. § 1983 (Count V) ³; (6) deprivation of Childress's Fifth and Fourteenth Amendment rights through Murphy's failure to instruct, supervise, and control Walker and Chavez and to otherwise prevent their unlawful actions in violation of 42 U.S.C. § 1983 (Count VI); (7) deprivation of Childress's constitutional rights, including those under the Fourth and Fourteenth Amendments, through Murphy's failure to train Walker and Chavez in violation of 42 U.S.C. § 1983 (Count VII); and (8) civil conspiracy to deprive Childress of his First Amendment rights in violation of 42 U.S.C. § 1985 (Count VIII). Based on these claims, Childress seeks compensatory and punitive damages, plus attorneys' fees and costs.

Unfortunately, due to the overly vague and generalized style in which Childress's claims are pled, the Court has no clear picture as to which claims Childress is asserting against which defendant, and whether those claims are being asserted against a particular defendant in their individual capacity, their official capacity, or both. Childress generally alleges that his claims against Walker, Chavez, and Murphy are brought against them in their “official and individual capacities,” (Doc. # 1–1, ¶¶ 2, 3 & 5), and Childress incorporates those allegations into each count of his Complaint. (Doc. # 1–1.) However, the only count that specifically mentions “official capacity” is Childress's outrage claim. (Doc. # 1–1, ¶ 45) (“Defendants, individually and collectively, in their official capacities ... inflicted emotional distress on Plaintiff[.]”). Childress's seven remaining claims make no distinction as to whether they are official or individual capacity claims. (Doc. # 1–1.) Thus, out of fairness and an abundance of caution, the Court will construe all of Childress's claims as being individual and official capacity claims.

The Complaint also makes repeated allegations against “Defendants” without providing further clarification as to exactly who Childress means. (Doc. # 1–1.) This lazy pleading makes it markedly more difficult for the Court to discern the intended extent of Childress's claims. As such, after reviewing the Complaint, the Court has concluded that it will construe Childress's claims as follows: Counts I, II, and III are against Walker and Chavez; Counts IV, ⁴ V, and VIII are against Walker, Chavez, and Murphy; and Counts VI and VII ⁵ are against Murphy.

IV. FACTS

The Court has carefully considered the submissions of the parties in support of and in opposition to the motion. The submissions of the parties, viewed in the light most favorable to Childress, the non-moving party, establish the following material facts:

In January 2011, the Sons of Confederate Veterans (“SCV”) applied to the City of Montgomery, Alabama for a public assembly permit. The purpose of the permit was “to commemorate and reenact the 50th anniversary of the swearing in of Jefferson Davis as President of the Confederate States of America.” (Doc. # 15–1.) The date requested for the assembly was February 19, 2011. The permit application stated that patrons would begin assembling for the parade at 10:00 a.m. near the fountain at One Court Square and Dexter Avenue. The parade would then proceed up Dexter Avenue to Bainbridge Street and would stop at the steps of the Capitol where a rally would be held. The permit stated that the event would last from noon until 2:00 p.m., with approximately 1,000 people participating. SCV paid the City of Montgomery a $100 permit fee, and the permit request was approved by Murphy on February 4, 2011. There is no evidence in the record that the permit was for the exclusive use of the permitted area.

During the relevant time period, Walker was employed as a lieutenant with the City of Montgomery Police Department (“MPD”) in the traffic division. Walker has been a lieutenant with MPD since 1999 and has been with the department for a total of 29 years. Walker has had significant training with MPD and has worked numerous events similar to the SCV assembly. Chavez was employed as a sergeant with MPD in the traffic division and was the department's permit supervisor. Chavez has supervised permits for MPD for approximately 10 years and was the permit supervisor for the SCV event.

On February 19, 2011, the day of the SCV event, Walker and Chavez were assigned to work off-duty at the event to provide traffic control and safety. MPD bike officers were also present as part of their regular patrols, in addition to membersof MPD SWAT unit. Additional police presence was needed to control any possible violence that might arise at the event. As permit supervisor, Chavez had reviewed the SCV permit before the event began, but Walker had not; he simply relied on Chavez's instructions. Walker and Chavez erected barricades to designate the area where the SCV members were to assemble before the parade started. Walker and Chavez erected these barricades on Montgomery Street, Commerce Street, and Dexter Avenue, including parts of the public sidewalk, to form a “controlled” area around One Court Square for the assembly. These barricades were also erected to...