Rogers v. City of Selma

Decision Date08 April 2016
Docket NumberCIVIL ACTION NO. 14-586-CG-M
Citation178 F.Supp.3d 1222
Parties Michael Donald Rogers Plaintiff, v. City of Selma, et al., Defendants.
CourtU.S. District Court — Southern District of Alabama

Faya Rose Toure, Chestnut, Sanders, Sanders & Pettaway, Selma, AL, for Plaintiff.

Rick A. Howard, Holtsford, Gilliland, Higgins Hitson & Howard, PC, April W. McKay, Montgomery, AL, for Defendants.



Plaintiff Michael Donald Rogers (Plaintiff) brought suit against the City of Selma (the City), Police Chief William Riley (“Chief Riley”), Officer Curtis Muhannad (“Muhannad”), and Detective Ray Blanks (“Blanks”) (collectively, Defendants) under 42 U.S.C. § 1983 and various state law claims. (Doc. 1). Presently, this matter is before the Court on Defendants' Motion for Summary Judgment and supporting brief (Docs. 21, 22), Plaintiff's response (Doc. 25), and Defendants reply (Doc. 27). This matter is now ripe for resolution. Based on the following, Defendants' motion is due to be GRANTED .


Federal Rule of Civil Procedure 56(a) instructs that [t]he 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.” The trial court's mission is to “determine whether there is a genuine issue for trial” and not to “weigh the evidence.” SeeAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The burden is on the moving party to show that there is no genuine dispute as to any material fact. Id. at 256, 106 S.Ct. 2505. In conducting its summary judgment analysis, the Court must construe all evidence “in the light most favorable to the party opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

After the movant meets its burden, the burden shifts to the nonmoving party “to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the nonmoving party fails to do so, the “complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323, 106 S.Ct. 2548. Further, Rule 56 “requires the nonmoving party to go beyond the pleadings and by [his] 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 (internal quotation marks omitted). There is no genuine issue for trial [w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).


As an initial matter, Plaintiff offers the self-described “affidavit” of Dorother Rogers, Plaintiff's wife, and Faya Toure, Plaintiff's attorney, as evidence opposing Defendants' Motion for Summary Judgment. See(Doc. 25-9; Doc. 26). An affidavit or declaration can be “used to support or oppose a motion” as long as either are “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 matter stated.” Fed. R. Civ. P. 56(c)(4). An affidavit has three elements: (1) a written oath embodying the fact as sworn to by the affiant; (2) the signature of the affiant; and (3) the attestation by an officer authorized to administer the oath that the affidavit was actually sworn by the affiant before the officer.” 3 Am. Jur. 2d Affidavits § 8 ; see alsoAuito v. Auito, 288 Ga. 443, 704 S.E.2d 789, 790 (2011) (laying out the three elements of an affidavit). Of particular importance is the third element. Under Alabama law, a notary public may [a]dminister oaths in all matters incident to the exercise” of his or her office. Ala. Code § 36–20–73 (1975). And when an officer does not administer an oath for the affiant in relation to the statement, it is improper evidence to oppose a motion for summary judgment. See Dudley v. City of Monroeville, Ala., 446 Fed.Appx. 204, 207 (11th Cir.2011) (“Unsworn statements do not meet the requirements of Rule 56, so the district court could not—and properly did not—rely on the content of the [unsworn] statement.”) (citing Carr v. Tatangelo, 338 F.3d 1259, 1273 n. 26 (11th Cir.2003) ); see also Estrella v. Ltd. Financial Services, LP, 2015 WL 6742062, at *3 (M.D.Fla. Nov. 2, 2015).1

In the absence of an oath affirming an affidavit, federal law recognizes certain unsworn declarations as competent evidence to oppose a motion for summary judgment. 28 U.S.C. § 1746. Section 1746 directs that whenever a rule requires “any matter” be supported by a “sworn declaration, ... oath, or affidavit” such mater may be supported, “with like force and effect,” by an unsworn declaration. Such unsworn declaration must be “subscribed by [the declarant], as true under penalty of perjury, and dated, in substantially the following form:”

(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).

Id. Strict compliance with § 1746 is not required as long as the unsworn declaration “substantially” satisfies the statute. SeeUnited States v. Roberts, 308 F.3d 1147, 1154–55 (11th Cir.2002), cert. denied, 538 U.S. 1064, 123 S.Ct. 2232, 155 L.Ed.2d 1119 (2003) (finding § 1746 met when the unsworn declaration included the disclaimer “to the best of [the declarant's] knowledge, information or belief”); Schroeder v. McDonald, 55 F.3d 454, 460 n. 10 (9th Cir.1995) (finding § 1746 met where it stated that “the facts stated in ... the complaint [are] true and correct as known to me”).

In this case, both statements include a summary of what each individual alleges occurred during the time surrounding Plaintiff's arrest. At the close of each document, an Alabama Notary Public completed the following acknowledgement:

On this, the 4th day of December, 2015, before me a notary public, the undersigned officer, personally appeared [Faya Toure (Doc. 25-9); Dorother Rogers (Doc. 26) ], known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. In witness hereof, I hereunto set my hand and official seal.

(Doc. 25-9; Doc. 26). Defendants agree that a party may oppose summary judgment with an affidavit or declaration. (Doc. 27, p. 2). But Defendants argue that neither statement is a valid affidavit or declaration. Id. Thus, Defendants argue that the Court should not consider the two self-described “affidavits.” Id. at 4. The Court agrees. Neither witness in her self-described “affidavit” declared her statement to be true, believed to be true to the best of her ability, made the statement under oath, or made it under penalty of perjury. All the notary did was acknowledge that the person who signed the statement was actually who she proclaimed herself to be. Thus, neither statement is proper evidence to oppose a motion for summary judgment.

But this decision is not to be interpreted as creating an insurmountable hurdle or hypertechnical formality in opposing a motion for summary judgment that serves no legitimate purpose. The assurance provided by requiring a witness to make a statement under oath or under penalty of perjury is critical. Without either, an affiant or declarant is free to fabricate a genuine issue of material fact with no fear of recourse. Moreover, this decision should not be interpreted to say that a timely motion to correct such an error would be denied in every case. But here, three months have passed since Defendants made the deficiency known and Plaintiff has neither corrected the error not requested the opportunity to correct the error.2 Therefore, the Court will not consider either statement in making its decision.


The chain of events leading up to Plaintiff's arrest began when Butler Truax Jewelers of Selma, Alabama was burglarized on three different occasions during November 2013. (Doc. 22-7). In the subsequent investigation, Detective Charles Clark of the Selma Police Department obtained surveillance footage depicting the same person, later identified as Fortune Hoppins, committing one of the burglaries. Id. After his arrest, Hoppins implicated Dorother Rogers, Plaintiff's wife, as his getaway driver. Id. Hoppins's statement and surveillance footage of one of the burglaries indicated that Dorother Rogers drove her Nissan Altima during the commission of that burglary. (Doc. 22-7; Doc. 25-3, p. 9, ll. 3–4). Based on this information, police contacted Dorother Rogers and asked her to come to the station for an interview. Mrs. Rogers drove a rented Nissan Sentra to the station for the interview. Police arrested Mrs. Rogers after interviewing her. While Mrs. Rogers was at the station, officers went to her home and impounded the Nissan Altima. (Doc. 22-1, p. 36, ll. 3–18; Doc. 25-3, p. 16, ll. 2–4). Plaintiff Rogers was at the house when officers impounded the Altima. (Doc. 25-3, p. 16).

Later, Plaintiff went to the police station to post his wife's bail and found out that she had been charged with burglary based on her allegedly driving the Altima during the burglaries. (Doc. 22-1, p. 37, ll. 10–13). After making bail, Mrs. Rogers asked the processing clerk for her property, which included the Altima key. (Doc. 25-2, p. 10, ll. 20–23). Unable to release the property without officer approval, the clerk called Detective Clark. Detective Clark came to the processing desk to give Dorother back her property. The clerk...

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