Perkins v. City Of Creola

• Citation: 713 F.Supp.2d 1326
• Decision Date: 14 May 2010
• Docket Number: Civil Action No. 09-0296-CG-N.
• Parties: Patricia PERKINS and Dianna Alston, Plaintiffs,v.CITY OF CREOLA, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

713 F.Supp.2d 1326

Patricia PERKINS and Dianna Alston, Plaintiffs,v.CITY OF CREOLA, et al., Defendants.

Civil Action No. 09-0296-CG-N.

United States District Court,

S.D. Alabama,

Southern Division.

May 14, 2010.

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Ishmael Jaffree, Mobile, AL, for Plaintiffs.

Alicia Marie Jacob, Andrew John Rutens, Galloway, Wettermark, Everest, Rutens & Gaillard, LLP, Mobile, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

CALLIE V.S. GRANADE, District Judge.

This cause is before the court on defendants' motion for summary judgment (Doc. 26), plaintiff's opposition thereto (Docs. 37, 38), and defendants' reply in support of summary judgment (Doc. 45). For the reasons that will be explained below, the court finds that summary judgment is due to be denied as to Dianna Alston's claims for conversion and assault against defendant, Kenneth W. Walker (Counts 10 and 11), and should be granted as to all other claims asserted by plaintiffs.

FACTS

This case concerns events that occurred in 2008 while plaintiffs resided on property which was purchased in July 2008 by defendant, City Councilman, Kenneth Walker. Plaintiffs filed their complaint asserting the following twelve counts: 1) § 1983 claim involving “an unauthorized warrantless illegal stop, and seizure of plaintiff's person”; 2) § 1983 claim against the City for failure to implement appropriate policies, customs and practices; 3) § 1983 claim against Davis and Walker for false arrest; 4) state law claim for false imprisonment against Davis and Walker; 5) state law claim of false arrest against Davis and Walker; 6) state law claim of unlawful detention against Davis and Walker; 7) negligence claim against all defendants; 8) negligent supervision claim against the City; 9) conspiracy claim against Walker and Davis; 10) conversion claim against Walker; 11) assault claim against Walker; and 12) malicious prosecution claim against Walker.

The events began after plaintiffs, who are sisters, moved into a mobile home park that was owned, at that time, by Terry Leonard. (Doc. 28-1, p. 4). Plaintiffs entered into a lease with Leonard under which they made monthly rent payments. (Doc. 28-1, p. 24). The lease required two weeks notice before plaintiffs could vacate the premises. (Doc. 28-3, p. 2). Plaintiff, Patricia Perkins, testified that it was her understanding that she “could just leave when [she] got ready to.” (Doc. 28-1, p. 24).¹ Plaintiff, Dianna Alston, states that the lease was treated as a year to year lease. (Doc. 37-1, ¶ 4). Perkins paid rent to Leonard up until March 2008. (Doc. 28-1, p. 24). Perkins did not pay rent for March, April, May, and June 2008. (Doc. 28-1, p. 25-26). According to Perkins, a fire occurred in her mobile home unit and there was a leak in the utility room on the back of her trailer and Perkins refused to pay rent until everything was fixed. (Doc. 37-2, ¶¶ 4-5).

On May 13, 2008, Leonard filed an unlawful detainer action against Perkins. (Doc. 28-1, p. 16; Doc. 28-4). On July 1, 2008, during the pendency of the unlawful detainer action, Leonard sold the property to the Walkers. (Doc. 28-7). The action was dismissed for lack of jurisdiction on July 23, 2008. (Doc. 28-4).

On June 10, 2008, before the Walkers had purchased the mobile home park, the Walkers visited the property and asked Alston to show them around. (Doc. 37-1, ¶ 6; Doc. 28-2, pp. 11-12). According to Alston, the Walkers pointed out various items that were cluttering the property and, using very foul language, indicated they would not stand for it when they became owners. (Doc. 37-1, ¶¶ 6-7). Alston talked to Mr. Leonard that afternoon, told him how the Walkers had acted and asked Leonard not to sell the property to the Walkers. (Doc. 37-1, ¶ 8). The next day, while Alston was outside, Mr. Walker reportedly walked up, grabbed Alston's arm about the shoulder, slung her around, and shoved her up against the trailer. (Doc. 28-2, p. 15). According to Alston, Walker screamed at her, within 5 inches of her face, that he wanted to talk to her and wanted to know what she had said to Leonard after they left. (Doc. 37-1, ¶ 9). Alston testified that she got really scared and said that if he wanted to know the truth, that she had told Leonard not to sell them the property because of the way the Walkers acted. (Doc. 28-2, pp. 10-11). Alston reports that she then slipped past Mr. Walker and got away from him. (Doc. 28-2, p. 16). At that time, Alston did not know that Mr. Walker was on the City Council. (Doc. 28-2, p. 16).

On June 18, 2008, Perkins arrived home to find Mr. Walker sitting out in front of her home. (Doc. 28-1, pp. 6-7). Walker introduced himself and asked if he could come in and look at her house. (Doc. 28-1, p. 7). Perkins let Walker in the house and, after looking around, Walker reportedly said that he was “not putting any money into this dump.” (Doc. 28-1, p. 7).

On June 27, 2008, Mr. Walker came to Alston's residence and complained about Perkins having told him “to kiss her ass.” (Doc. 28-2, p. 15). Alston replied “well, did you do it?” (Doc. 28-2, p. 16). Alston told him “I am sick of you coming down here telling on my sister. She's my sister, not my daughter.” “Don't do this any more.” “You've kept me upset enough.” (Doc. 28-2, p. 16). Alston then shut the door in Walker's face. (Doc. 28-2, p. 16). Walker reportedly stormed off, went and got the weed-eater and cut down tomato plants Alston had planted next to Perkins' trailer. (Doc. 28-1, p. 12; Doc. 28-2, p. 16). Perkins and Alston gathered up the remains of the tomato plants and went down to the City Clerk's Office to see about getting a warrant for Walker's arrest. (Doc. 28-1, p. 17). Personnel at the clerk's office told plaintiffs they had to go next door to the police department.² (Doc. 28-1, pp. 17-19). The Mayor walked in and, after plaintiffs stopped him and voiced their complaints, he responded that he could not do anything about it because it was Walker's property. (Doc. 28-1, pp. 50-51). Alston pointed out that it was not Walker's property yet and the Mayor reportedly told plaintiffs to talk to the City Clerk and said he could not let them “sign a warrant on a city councilman.” (Doc. 37-2, ¶ 9; doc. 37-1, ¶ 12). Plaintiffs went next door to the police department and spoke with a dispatch lady who said all the officers were out on call because of an emergency and that she did not know how long they would be. (Doc. 28-1, pp. 19-20). So, plaintiffs left. (Doc. 28-1, p. 20).

In July, when Walker purchased the property, Perkins tried to give him a check for $350, but Walker refused the check, telling plaintiffs their rent had gone up to $400 per month each. (Doc. 28-1, p. 26; Doc. 28-2, p. 12). Alston reports that Walker also wanted first and last months rent and a deposit. (Doc. 28-2, p. 12). Perkins did not pay any rent from July 2008 through June 2009, when she vacated the property. (Doc. 28-1, p. 27). Alston also moved out in June 2009 and never paid any rent to Walker. (Doc. 28-2, pp. 12-13).

On July 12, 2008, Walker sent Alston a letter informing her that she had to move the travel trailer she had stored behind one of the units off the property or pay $12.00 per day storage. (Doc. 38-9, p. 2). On July 13, 2008, Walker sent Alston another letter informing her that because she had not paid her rent, they were terminating her occupancy and that legal action would be taken for possession if she failed to deliver possession within seven days. (Doc. 38-9, p. 3). On July 22, 2008, Walker sent Alston a third letter “demanding formal notice to view the property” and requesting she contact Walker immediately to schedule a time for him to view the property. (Doc. 38-9, p. 4). All three letters were addressed to Alston by her former married name, Diane Brantly or Ms. Brantly. (Doc. 38-9). Walker also sent Perkins a letter on July 22, 2008, “demanding formal notice to view the property” so that he could confirm what damage, if any, has occurred to the property. (Doc. 38-10).

In the afternoon of July 23, 2008, Alston was visiting a neighbor when she heard that police officers were at her house. (Doc. 28-2, pp. 38-39). Alston walked towards her home and said “hey, here I am.” (Doc. 28-2, p. 21). Officer Gary Davis asked Alston if she was Dianna Brantly and what was she doing in the park and Alston replied that she lived there. (Doc. 28-2, p. 21; doc. 37-1, ¶ 20). Officer Davis said she did not live there, that Mr. Walker said she moved into the trailer without his permission and that Walker had filed a complaint for criminal trespass. (Doc. 28-2, p. 21-22; Doc. 37-1, ¶ 21). Alston called Perkins to bring her over a copy of the lease agreement. (Doc. 28-2, p. 22). The officer put Alston in the police car and closed the door. (Doc. 28-2, p. 22). Officer Davis then talked on the phone for several minutes. (Doc. 28-2, p. 22; Doc. 371, ¶ 23). Officer Davis asked Alston if she knew there were warrants for her arrest from Bayou La Batre, Alabama. (Doc. 37-1, ¶ 23). Alston responded that she knew about them and that they involved a traffic violation and that she had missed court. (Doc. 37-1, ¶ 23). Davis got on the telephone again and then came back and said “well, I'm not going to take you to jail today,” “but the chief of police wants to see you” and “he's going to be here first thing in the morning.” (Doc. 28-2, p. 23). Davis let Alston out of the car and the chief of police never showed up. (Doc. 28-2, p. 23).

The next day, July 24, 2008, Officer Melvin Taylor and Mr. Walker knocked on Perkins' door with a warrant for criminal trespass and told Perkins she had 48 hours to get out or she would be arrested. (Doc. 28-1, pp. 72-73; Doc. 37-2, ¶ 14). Officer Taylor also told Alston she had 48 hours to leave or she would be put in jail (Doc. 28-2, p. 24).

On August 25, 2008, the Walkers filed a complaint against Perkins for ejectment...