Long v. Dietrich

Decision Date20 September 2012
Docket NumberCase No. 1:10-cv-02859-HGD
PartiesTHOMAS LONG, Plaintiff v. DAVID M. DIETRICH, et al., Defendants
CourtU.S. District Court — Northern District of Alabama

The above-entitled civil action is before the court on the Motion for Summary Judgment filed by defendants. (Doc. 15). The parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c), Rule 73, Fed.R.Civ.P., and LR 73.2.

Plaintiff, Thomas Long, commenced this action by filing a complaint against the City of Anniston, Alabama, and Anniston Police Officer Daniel M. Dietrich.1 Plaintiff alleges that he was subjected to unlawful arrest and false imprisonment by Dietrich, and malicious prosecution by both defendants. He also alleges that Dietrich's actions were taken pursuant to a pattern, policy or custom sanctioned by the City of Anniston. He asserts causes of action pursuant to 42 U.S.C. § 1983, forviolation of his Fourteenth Amendment rights.2 Count One is entitled "False Imprisonment" but also asserts unlawful arrest without arguable probable cause. Count Two is entitled "Malicious Prosecution" and specifically invokes 42 U.S.C. § 1983 and refers to Alabama law. Count Three is entitled "City of Anniston Liability" and specifically mentions 42 U.S.C. § 1983. It is alleged that "Dietrich's acts of falsely arresting and imprisoning plaintiff was the results [sic] of neglect, carelessness or unskillfulness on the defendant, City of Anniston's, behalf." It also is alleged that the City of Anniston is liable for failing to properly supervise and train Dietrich and is liable under Alabama law for Dietrich's alleged false arrest and false imprisonment of plaintiff.


"The 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." Fed.R.Civ.P. 56(a). The recently amended Rule 56(c) provides:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence.
A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be 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 matters stated.

Fed.R.Civ.P. 56(c). Defendants, as the parties seeking summary judgment, bear the initial responsibility of informing the district court of the basis for their motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which they believe demonstrate the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). A genuine issue of material fact is shown when the nonmoving party produces evidence so that a reasonable factfinder could return a verdict in its favor. Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007). If the nonmoving party fails to make a sufficient showing on an essential element of her case with respect to which he has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. In reviewing whether the nonmoving party has metits burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter; the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-99 (11th Cir. 1992) (internal citations and quotations omitted). However, speculation or conjecture cannot create a genuine issue of material fact. Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). A "mere scintilla of evidence" in support of the nonmoving party also cannot overcome a motion for summary judgment. Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004).


Plaintiff was part of a group of citizens that regularly protested their displeasure with various aspects of the Monsanto pollution litigation. (Doc. 15-1, Long Depo., at 29-31). Plaintiff had been involved in every such protest for over three years. (Id.). On October 21, 2004, the group began the day protesting in front of Attorney Donald Stewart's office. (Id. at 28, 34-35). Dietrich, then a patrol officer for the Anniston Police Department, was dispatched to Stewart's office. (Id. at 34-35). After being asked to disperse, plaintiff's group left Stewart's office and began protesting outside the EPA's rented offices at West 10th Street. (Id. at 35-36). According to plaintiff's witness Roygers Burton, Dietrich told the protestors that if he had to come back, he would arrest someone. (Doc. 18-4, Roygers Burton Aff.).

Following a complaint to the Anniston Police Department about the protest by a Donald Williams, Dietrich was dispatched to the West 10th Street address. (Doc. 15-3, Dietrich Depo., at 5-6). The complaint concerned the protestors' interference with the vehicular traffic flow into the premises and the pedestrian flow in and out of the building. (Id.). Belenda Randall, an EPA employee, was at work in her office on October 21, 2004, and saw the demonstrators. However, they did not bother her or interfere with her work. (Doc. 18-3, Randall Aff.). The group had been protesting at the EPA office for 30 minutes when Dietrich arrived just before 12:00 noon. (Long Depo. at 33, 37; Doc. 15-7, Arrest Report).

Upon arrival at the scene, Dietrich first talked with Donald Williams, who told Dietrich that he believed in the protestors' constitutional right to picket but stated that they were interfering with vehicles needing to pull in the parking lot adjacent to the building. (Dietrich Depo. at 7-9, 36-37). Williams expressed concern about traffic being able to turn safely into the parking area of the building without possibly striking a pedestrian or picketer. (Id. at 9). Plaintiff had no knowledge of the substance of these complaints. (Doc. 15-5, Plaintiff's Interrogatory Answers, at ¶ 14). Dietrich then spoke to Mr. Virden, the leader of the protestors. (Dietrich Depo. at 11-12). Dietrich avers he asked to see their protest permit (id. at 12), but plaintiff avers Dietrich did not want to see the permit and only told the protestors that he was the law. (Long Depo. at 38). Dietrich acknowledged that the protesters had a right to be there. (Dietrich Depo. at 16). While Dietrich was talking to Virden, plaintiff interrupted and voiced his opinion that he had a right to be there to picket. (Id.).Plaintiff kept repeating to Dietrich that the protesters had a right to be there. (Id. at 17-18). Dietrich asked plaintiff several times to discontinue his behavior and warned him if he did not, he could be arrested. (Id. at 17). Dietrich testified that plaintiff raised his voice, though plaintiff has denied shouting or yelling, and the other protesters started to gather closer to Dietrich and Officer Tad Carter. (Dietrich Depo. at 19, 21; Long Depo. at 40). Dietrich testified that in his eyes, plaintiff's actions caused some alarm in the other demonstrators because "they immediately came down to see what was going on," surrounding Dietrich, Carter and Virden. (Dietrich Depo. at 17-19, 21, 50). Plaintiff admits being agitated (Long Depo. at 39), but claims he was speaking normally and denies doing anything that would cause annoyance, alarm or disturbance to anyone in the EPA or other demonstrators. (See Randall Aff.; Roygers Burton Aff.; Doc. 18-5, Julia Burton Aff.). Roygers Burton and Julia Burton, also protestors, denied that plaintiff was loud or that plaintiff's conduct or speech were ever alarming to them. (Roygers Burton Aff.; Julia Burton Aff.). They also denied that the protestors "surrounded" Dietrich but were just trying to find out what was going on. (Id.). Plaintiff claims that he asked why Dietrich wanted to arrest them. (Long Depo. at 39-40). Dietrich testified that he felt that plaintiff's behavior "caused alarm to the other protesters, at which time they surrounded myself and officer - the other officers involved. At that time I was very uncomfortable with being surrounded by people because of his behavior." (Dietrich Depo. at 50). Therefore, due to the perceived alarm and "for officer safety purposes, I made the arrest." (Id.).

Plaintiff was arrested by Dietrich without a warrant for disorderly conduct. (Long Depo. at 45-48; Dietrich Depo. at 25-26). Plaintiff was the only one arrested. (Long Depo. at 44; Doc. 15-7, Arrest Report). Dietrich told plaintiff to face away from him and put his hands behind his back; plaintiff complied and Dietrich placed plaintiff in handcuffs. (Dietrich Depo. at 43-44). Plaintiff testified that he suffered injury from Dietrich pulling his right arm behind him and pulling up on his right arm and wrist. (Doc. 15-5, Plaintiff's Interrogatory Answers, at ¶ 20; Long Depo. at 43). Plaintiff stayed in...

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