Robert B. Eubank v. Mountain Brook, Alabama , 197 F. App'x 819 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 05-16485 ELEVENTH CIRCUIT
AUGUST 10, 2006
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 04-03298-CV-P-S
ROBERT B. EUBANKS,
Plaintiff-Appellant,
versus
MOUNTAIN BROOK, ALABAMA, CITY OF,
RON LAMON,
Defendants-Appellees.
MARTY KEELY,
Defendant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(August 10, 2006)
Before EDMONDSON, Chief Judge, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
Plaintiff Robert Eubank, proceeding pro se, appeals the district
court’s grant of summary judgment to Defendants City of Mountain Brook,
Alabama, and Officer Ron Lamon and the denial of his own motion for summary
judgment. Plaintiff drove around orange safety cones and became stranded on a
visibly-flooded road. Officer Lamon arrived at the scene, talked with Plaintiff,
and ultimately arrested Plaintiff for driving under the influence of alcohol.
Plaintiff alleged his arrest was without probable cause and in violation of the
Fourth Amendment and as a remedy, invoked 42 U.S.C. § 1983 against the City
and Officer Lamon. Plaintiff also alleged state-law claims of negligence,
wantonness, false imprisonment, and false arrest against Officer Lamon. No
reversible error has been shown; we affirm.
We review de novo the grant of summary judgment, using the same legal
standard as the district court. Diaz v. United States, 165 F.3d 1337, 1339 (11th
Cir. 1999).
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Section 1983 claim against Mountain Brook
Plaintiff alleged Mountain Brook was liable under section 1983 for failure
to train Officer Lamon properly. The district court granted summary judgment to
the City because Plaintiff abandoned this claim by not responding to the City’s
arguments on this claim in its motion for summary judgment and, alternatively,
because Plaintiff presented no evidence that he suffered a constitutional violation
as a result of a City policy or custom. Plaintiff argues that summary judgment was
improperly granted to the City because the City did not show it adequately trained
Officer Lamon.
At summary judgment, “the non-moving party . . . bears the burden of
coming forward with sufficient evidence on each element that must be proved.”
Earley v. Champion Intern. Corp., 907 F.2d 1077, 1080 (11th Cir. 1990). A
municipality is not liable under section 1983 for failure to train a police officer
unless the failure to train is a City policy or custom. Gold v. City of Miami, 151
F.3d 1346, 1350 (11th Cir. 1998). Because Plaintiff presented no evidence that
Mountain Brook had a policy or custom of failing to train police officers, the
district court properly granted summary judgment to the City on this claim.
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Section 1983 Claim against Officer Lamon
The district court properly determined that Officer Lamon was entitled to
qualified immunity on Plaintiff’s section 1983 claim. Officer Lamon was
performing a discretionary function at the time of the alleged violation. See Ex
parte City of Montgomery, 758 So.2d 565, 570 (Ala. 1999) (determining that
arresting a person for driving under the influence of alcohol is a discretionary
function), abrogated on other grounds by Ex Parte Cranman, 792 So.2d 392, 404
(Ala. 2000).
Plaintiff claims that Officer Lamon violated Plaintiff’s clearly established
Fourth Amendment rights because the Officer lacked probable cause to arrest
Plaintiff. Plaintiff says the Officer lacked probable cause because the crime is a
misdemeanor and because Officer Lamon did not personally observe Plaintiff
driving the vehicle. As support, Plaintiff cites two Supreme Court cases which
refer to the common-law rule that in general, warrantless arrests for misdemeanors
are only appropriate if the misdemeanor was committed in the officer’s presence.
See United States v. Watson, 96 S. Ct. 820, 825 (1976); Davis v. United States, 66
S.Ct. 1256, 1271 (1946). But the Supreme Court has never decided that the Fourth
Amendment requires that a misdemeanor must always have occurred in an
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officer’s presence for the officer to make a warrantless arrest. See Atwater v. City
of Lago Vista, 121 S.Ct. 1536, 1550 (2001) (refusing to “speculate whether the
Fourth Amendment entails an ‘in the presence’ requirement for purposes of
misdemeanor arrests.”); see also Knight v. Jacobson, 300 F.3d 1272, 1275-76
(11th Cir. 2002) (rejecting claim that warrantless arrest for misdemeanor
committed outside officer’s presence violated Fourth Amendment).
In addition, Alabama law says a warrantless arrest is appropriate if the arrest
is “authorized by statute, such as Ala. Code . . . [§] 32-5A-191[.]” Ala. R. Crim. P.
4.1. Plaintiff was arrested under Ala. Code § 32-5A-191, which says that “[a]
person shall not drive or be in actual physical control of any vehicle while . . .
[u]nder the influence of alcohol.” The statute does not require that the arresting
officer witness the person driving under the influence; the officer need only find
the individual to be in actual physical control of the vehicle while under the
influence of alcohol.
Officer Lamon had at least arguable probable cause to suspect that Plaintiff
was in actual physical control of his vehicle while under the influence of alcohol.
Officer Lamon observed at the scene that Plaintiff’s breath smelled of alcohol, that
Plaintiff almost fell when trying to step out of his vehicle, and that Plaintiff’s
speech was slurred. Plaintiff admitted to the Officer at the scene that he had
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driven the vehicle moments earlier. Both Plaintiff and witnesses told the Officer
that Plaintiff had driven his car around safety roadblocks and into a flooded street.
Because Officer Lamon had at least arguable probable cause for the arrest
and no clearly established law prohibited his making the arrest, the district court
properly determined Lamon was entitled to qualified immunity. Knight, 300 F.3d
at 1274.
State Law Claims against Officer Lamon
Plaintiff alleged state law claims of negligence, wantonness, false
imprisonment, and false arrest against Officer Lamon. The district court properly
granted summary judgment to Officer Lamon on these claims because the officer
was entitled to discretionary-function immunity under Alabama Code § 6-5-
338(a).
To qualify for immunity under this statute, Officer Lamon must show he
was engaged in a discretionary function when the alleged tort occurred. Sheth v.
Webster, 145 F.3d 1231, 1238 (11th Cir. 1998). Then to deny Officer Lamon
immunity, the burden shifts to Plaintiff to demonstrate that Lamon acted in bad
faith, with malice or willfulness. Id. at 1239.
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As discussed above, Officer Lamon was engaged in a discretionary function
when he arrested Plaintiff. Plaintiff has neither alleged nor offered evidence that
Officer Lamon acted in bad faith. Therefore, the district court properly determined
Officer Lamon was entitled to discretionary function immunity.
AFFIRMED.
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