Windham v. City of Fairhope (20 F. Supp. 3d 1323, 2014)

ORDER

WILLIAM H. STEELE, Chief Judge.

This matter comes before the Court on Plaintiffs Motion for Partial Summary Judgment (doc. 71), defendants’ Motion for Summary Judgment (doc. 76), and Plaintiffs Motion to Strike (doc. 82). The Motions have been extensively briefed and are now ripe for disposition.

I. Nature of the Case.

Plaintiff, Tina Diane Windham, who was initially represented by counsel but is now (at least nominally) proceeding pro se, brought this action against the City of Fairhope, Alabama and two of its police officers, Trent Scott and Damien Rehorn. At the outset, Windham’s 59-page Complaint interposed nearly two dozen causes of action against defendants, alleging numerous constitutional deprivations under 42 U.S.C. § 1983 and violations of Alabama law. All such claims arise from and relate to her arrest by the City of Fair-hope Police Department on January 12, 2012.

Due to a combination of defendants’ Rule 12(b)(6) motion and plaintiffs serial requests for voluntary dismissal of certain claims, the number of pending causes of action has been whittled down to nine. Those remaining claims are as follows; (i) Count One (false imprisonment / false arrest against all defendants pursuant to § 1983, alleging that Officers Scott and Rehorn lacked arguable probable cause to arrest her); (ii) Count Two (excessive force against all defendants pursuant to § 1983, alleging that Officers Scott and Rehorn injured her by employing unprovoked “roughhouse actions” to arrest her); (iii) Count Seven (Eighth Amendment excessive bail claim against the City of Fair-hope); (iv) Count Eight (Fourteenth Amendment due process claim against the City relating to the conditions of Wind-ham’s bail); (v) Count Ten (municipal liability against the City under § 1983 for inadequate training and for an official policy or custom that led to Windham’s allegedly false arrest and the alleged use of excessive force); (vi) Count Eleven (municipal liability against the City under state law alleging vicarious liability for the purported misconduct of Officers Scott and Rehorn); (vii) Count Twelve (state-law false imprisonment / false arrest claim against all defendants); (viii) Count Thirteen (state-law excessive force claim against all defendants); and (ix) Count Fourteen (state-law assault and battery claim against all defendants).

Both sides now seek summary judgment on these claims. In summary judgment briefing, Windham wrote, “Plaintiff abandons her counts related to the unfairness and excessiveness of the bond which gave rise to Counts Seven and Eight of her Complaint.” (Doc. 81, at 10.) Because Windham has, by her own admission, “expressly abandoned” these claims (id. at 9), defendants’ Motion for Summary Judgment is granted as to Counts Seven and Eight. Those claims are dismissed. This Order will address the parties’ dueling summary judgment motions as to the § 1983 false imprisonment / false arrest, excessive force, and municipal liability claims, as well as the state-law claims for municipal liability, false imprisonment / false arrest, excessive force and assault and battery.

II. Background Facts.

The circumstances culminating in Wind-ham’s arrest are clearly depicted in a video recording taken from the officers’ patrol vehicle, with accompanying audio from a body microphone worn by one of the officers. (See doc. 77, Exh. B.) Neither side disputes the authenticity of the recording, or suggests that it has been doctored or manipulated in any way. The undersigned has carefully reviewed that recording, and accepts its contents for summary judgment purposes notwithstanding any party’s contrary or inconsistent statements. See Morton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir.2013) (“where an accurate video recording completely and clearly contradicts a party’s testimony, that testimony becomes incredible”).

A. Circumstances Leading to Wind-ham’s Arrest.

Shortly before 8:30 a.m. on January 12, 2012, a Fairhope Police Department dispatcher contacted Officers Scott and Re-horn. An audio recording of the dispatch call confirms that the dispatcher stated as follows: “Could you go to 853 North Section, 8-5-3 North Section? Tina Windham is outside hollering about her neighbors again.” (Doc. 72, Exh. 6.) The officers responded, “10-4.” (Id.) That address is located in a residential area, on a two-way street with at least moderate traffic moving in both northbound and southbound directions. Windham’s home was adjacent to the address to which the officers were dispatched.

Minutes later, Officers Scott and Rehorn arrived at that location in their marked police cruiser, with blue lights activated. (Doc. 77, Exh. B.) The car’s in-dash camera reflects that the officers arrived to find a white pick-up truck parked along the southbound side of North Section Street, with driver’s side tires fully in the roadway. The truck’s driver and Tina Wind-ham were standing in the roadway on the driver’s side of the vehicle, and Windham was holding what appeared to be a red gasoline container. (Id.) As the police cruiser came to a stop behind the pickup truck, the driver entered the truck and closed the door, while Windham remained standing in the roadway speaking to him.

The video reflects the following sequence of events thereafter: Officers Scott and Rehorn, both of whom were in uniform, exited the patrol car and walked over to the truck. Officer Scott called out, “Hey Ms. Windham, how you doin’?” Without acknowledging the officers, Wind-ham stated to the truck’s driver, “You’re going to be a witness. Don’t go anywhere, I just gave you gas.” Officer Scott asked her to leave the roadway, but Windham interrupted him, loudly exclaiming, “No, I’ve got a right to be here.” Officer Scott said, “We need to get out of the roadway,” in response to which Windham snapped, “You’re in the road, I’m not in the road.” In fact, she was standing in the southbound lane of traffic. The driver complied with the officers’ instructions and moved the white truck completely off the roadway, prompting Windham to exclaim loudly to the driver, “Don’t leave.... These people be calling and saying all kind of shit. ‘Cause I’ve had it.”

Still standing partially in the roadway, Windham waved her finger at Officer Scott from a close distance and said, “I really don’t want to talk to you.” Windham then fully re-entered the roadway as Officer Scott politely said, “We got called down here for a reason.” Speaking in a loud, hostile tone of voice, Windham shouted back, ‘You get called down here all the time for a reason.” Officer Scott said, “You calm down.” She screamed back, “You calm down.” Officer Scott asked her twice what was going on, and she responded (again in a loud, confrontational voice) that she had given gas to a stranded motorist. Once again, Officer Scott requested that she leave the roadway, and she yelled back, “You get out of the road.” Officer Scott again instructed her to calm down, but Windham shouted, “I’m not gonna calm down,” although she did finally move to the shoulder of the road. Officer Scott again told Windham, “Ma’am, you need to calm down,” to which she responded, “No.” He reached for the gas can (which she was still holding), but Windham jerked it away. Officer Scott said, “Hand me that gas can.” She refused and exclaimed to the truck driver (who was still seated in his vehicle), “You see what I’m talking about.” As Windham continued yelling, Officer Scott (still utilizing a polite, even tone of voice) said, “You just need to calm down. We don’t need all this hollering.” Windham loudly responded, “I’m not calming down. I don’t have to. I’m in my fucking yard.” Officer Scott replied, ‘Tes, ma'am, but you’re also in the roadway.” When Windham remained agitated and angry, Officer Scott again instructed her to calm down, but she refused. Windham shouted, ‘Tou gonna arrest me for giving this man gas?” Officer Scott answered, “I don’t want to, absolutely not.” Windham then demanded to know why the officers were there. When Officer Scott replied that someone had called the police, Windham demanded to know who. “I don’t know,” Officer Scott answered. Once again, Officer Scott told her she needed to calm down, which appeared to enrage Windham more as she screamed, “I don’t have to calm down.” He told her again to calm down and she again refused, saying, “I’m not calming down.” Officer Scott then calmly said, ‘Tes, ma’am, you are going to calm down.” He then took the gas can from her, and Windham shouted, “Give me my gas back.” Officer Scott’s next words were, ‘Tou’re under arrest.” The entire incident, from the time the officers arrived at the scene until Officer Scott informed Windham that she was under arrest, lasted barely 90 seconds. (D