Miles v. Kilgore
| Decision Date | 05 June 1996 |
| Docket Number | Civil No. 96-HM-0801-J. |
| Citation | 928 F. Supp. 1071 |
| Parties | Bennie MILES, Jr., individually; Darmeta Miles, individually; Bennie Miles, III, individually; Bennie Miles, IV, by and through his next friend and guardian Darmeta Miles; Mariah Hagler, by and through her next friend and guardian Darmeta Miles; Jasmine Hagler, by and through her next friend and guardian Darmeta Miles; Jonathon Hagler, by and through his next friend and guardian Darmeta Miles; and Nicolas Hagler, by and through his next friend and guardian Darmeta Miles, Plaintiffs v. Tim KILGORE, individually and in his official capacity as Project Director of the Walker County Narcotics Enforcement Team and Police Officer for City of Jasper; John Mark Tirey, individually and in his official capacity as Sheriff of Walker County, Alabama; Joe Filyaw, individually and in his official capacity as Police Chief of the City of Jasper, Alabama; Larry Cantrell, individually and in his official capacity as a Jasper Police Officer; and Mike Clark, individually and in his official capacity as a Jasper Police Officer; Defendants B, C, D and E being those who are officers, agents or employees of the Jasper Police Department who are responsible for inflicting the injuries suffered by the plaintiffs as set forth in the complaint below; Defendants F, G, H and I being those individuals who are officers, agents or employees of the Walker County Sheriff's Department who are responsible for inflicting the injuries suffered by the plaintiffs as set forth in the complaint below; Defendants J, K, L and M being those entities responsible for the training or hiring of defendants above named members of the Walker County Sheriff's Department and or the Jasper Police Department; Defendants N, O, P and Q, being those entities who participated in the organizing or planning of the "raid" on the plaintiffs' residence as alleged in the complaint; the true names of Defendants B-Q are unknown at this time but will be added by amendment when ascertained, Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
William J. Baxley, Stewart Davidson McKnight, III, Baxley Dillard Dauphin & McKnight, Birmingham, AL, Erskine R. Mathis, Mathis Harris & Sanford, Birmingham, AL, for plaintiffs.
James R. Shaw, Huie Fernambucq & Stewart, Birmingham, AL, Jerry Kern Selman, Selman & Selman, Jasper, AL, for Tim Kilgore, Joe Filyaw, Larry Cantrell, Mike Clark.
James R. Shaw, Huie Fernambucq & Stewart, Birmingham, AL, Kendrick E. Webb, Webb & Eley P.C., Montgomery, AL, for John Mark Tirey.
The above-entitled state court civil action was commenced by and/or on behalf of the eight 8 Plaintiffs hereinabove identified in the case caption of this Order against the five 5 specifically identified law enforcement officers designated in the case caption hereof and against the sixteen 16 fictitious party defendants identified alphabetically as "B" through "Q", inclusive, via Plaintiffs' ORIGINAL COMPLAINT was filed in the Office of the Clerk of the Circuit Court of Walker County, Alabama on February 21, 1996.
This state court complaint consists of eighteen 18 introductory paragraphs numerically numbered as ¶¶ 1-18, inclusive, which are respectively realleged as the opening paragraph in succeeding Counts One through Four, inclusive.
Count One: Unreasonable search of Plaintiffs' residence by defendant law enforcement officers in the nighttime under color of state law which deprived Plaintiffs of their constitutional rights under the 4th and 14th Amendments to the United States Constitution. Sued: Kilgore, Cantrell and Clark.
Count Two: Defendants Kilgore, Cantrell and Clark and fictitious defendants B-I negligently, recklessly or intentionally failed to make reasonable efforts to inform Plaintiffs of their identity as police officers Defendants deliberately disguised their identity, wore black clothing and had their faces covered without any law enforcement identification which Plaintiffs could observe. As a proximate consequence of Defendants' negligence Plaintiffs Jonathon Hagler and Bennie Miles, III were shot and injured. Sued: Kilgore, Cantrell and Clark.
Count Three: Prior to the raid on Plaintiffs' residence Defendants Tirey, Filyaw, Kilgore, Cantrell and Clark actively participated in the planning of the raid which was negligently planned. As a proximate consequence of Defendants' negligence, Plaintiffs were injured and damaged. State law claim. Sued: Tirey, Filyaw, Kilgore and Clark.
Count Four: The plan described in Count Three was devised under color of state law by said Defendants. As a proximate consequence thereof Plaintiffs' constitutional rights under the 4th Amendment to the United States Constitution were violated word "violated" omitted, probably inadvertently. Defendants' plan resulted in an unreasonable search of the Plaintiffs' residence under color of state law and deprived Plaintiffs of their constitutional rights under the 4th and 14th Amendments to the United States Constitution. Sued: Tirey, Filyaw, Kilgore, Cantrell and Clark in respective official and individual capacities.
Plaintiffs demand judgment against defendants ... in an amount of compensatory and punitive damages plus attorneys fee to be determined by a jury.
All identified defendants were served with process in the above-entitled civil action on February 26, 1996.
On February 29, 1996 the Defendants Kilgore, Filyaw, Cantrell and Clark by and through their attorney of record, JERRY K. SELMAN of the Jasper, Alabama law firm of SELMAN & SELMAN, filed in the Office of the clerk of the Circuit Court of Walker County, Alabama and in this civil case their JOINT MOTION TO DISMISS, assigning three asserted grounds in support thereof. According to Attorney Selman's CERTIFICATE OF SERVICE attached thereto on February 29, 1996 he served a copy of the above-identified Motion "upon all parties or, when represented, upon their respective attorneys of record by hand delivery or by United States Mail." The name "David McKnight, Esquire, 2000 16th Avenue South, Birmingham, Alabama 35205" is typed underneath and to the left of Mr. Selman's signature on this Certificate of Service. Other documents in the present court file identify Attorney McKnight to be a member of the Baxley, Dillard, Dauphin & McKnight law firm of Birmingham, Alabama who appeared on the state court complaint as co-counsel for Plaintiffs in this case.
At the bottom portion of the February 29, 1996 MOTION TO DISMISS above-referenced which is in the court file of this case in this federal district court the following handwritten in ink entries appear which were obviously made by a Circuit Court Judge in and for the Circuit Court of Walker County, Alabama:
3/7/96 Motion Overruled Defendant sic has ten days to file an Answer /s/ Signature Illegible
cc: J. Selman Court Note: Attorney of record for all law enforcement Defendants except the Defendant Sheriff. D. McKnight Court Note: One of co-counsel for Plaintiffs.
Under date of March 15, 1996 the Defendants TIM KILGORE, individually and as a police officer for the City of Jasper, JOE FILYAW, individually and as a Police Chief for the City of Jasper, LARRY CANTRELL, individually and as a police officer for the City of Jasper, MARK CLARK, individually and as a police officer for the City of Jasper, filed in the Office of the Clerk of the Circuit Court of Walker County, Alabama and in Case No. CV 96-203 by and through their counsel of record, Jasper Attorney Jerry K. Selman, their joint ANSWER to PLAINTIFFS' original state court complaint which tersely asserted:
1. The Defendants deny each and every material allegation of the Plaintiffs' Complaint and demand strict proof thereof.
The CERTIFICATE OF SERVICE attached to this state court ANSWER signed by Mr. Selman and dated March 15, 1996 is identical in form and format to Attorney Selman's Certificate of Service with respect to the state court joint Motion To Dismiss filed by these same Defendants through Attorney Selman on February 29, 1996. Here again the name "David McKnight" with the same Birmingham address is typed on this Certificate of Service below and to the left of Mr. Selman's signature.
Under date of April 1, 1996, approximately fifteen 15 days after the Defendants Police Officer Kilgore, Police Chief Filyaw, Police Officer Cantrell and Police Officer Clark had filed in state court their ANSWER to Plaintiffs' state court complaint through Attorney Jerry K. Selman of Jasper, Alabama on March 15, 1996 another ANSWER to Plaintiffs' state court complaint was filed in the Circuit Court of Walker County, Alabama on April 1, 1996 on behalf of Defendants Filyaw, Cantrell and Clark but not for Defendant Kilgore by Attorney James R. Shaw of the Birmingham, Alabama law firm of Huie, Fernambucq and Stewart with CERTIFICATE OF SERVICE attached thereto dated March 29, 1996 signed by Mr. Shaw certifying that he had mailed copy thereof to Attorneys William J. Baxley, David McKnight and to Attorney Jerry Selman of Jasper, Alabama.
On March 27, 1996, the 30th day from and following the service of process date in this case with respect to all Defendants, the Defendant WALKER COUNTY, ALABAMA SHERIFF JOHN MARK TIREY sued in the above-entitled civil action in his respective official and individual capacities filed in the Office of the Clerk of this United States District Court for the Northern District of Alabama, Jasper Division, his solo NOTICE OF REMOVAL with jurisdiction predicated under 28 U.S.C. § 1331 and 28 U.S.C. § 1343.1 Section "B" of this notice of removal document reads as follows:
B. This action is a civil action of which this Court has original jurisdiction under...
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