Hunter v. Etowah Cnty. Court Referral Program, LLC (309 F. Supp. 3d 1154, 2018)

VIRGINIA EMERSON HOPKINS, United States District Judge

I. INTRODUCTION AND PROCEDURAL HISTORY

Plaintiffs initiated this civil rights lawsuit and purported class action on July 1, 2013, against Defendants City of Attalla (the "City"), the Etowah County Court Referral Program, LLC (the "ECCRP"), and the ECCRP's Executive Director, Lenesha Zaner ("Ms. Zaner"). (Brannon , Doc. 1). Plaintiffs have amended their complaint multiple times. The last version was filed on April 9, 2015. (Brannon , Docs. 22, 43, 45, 63). By virtue of the pro tanto stipulated dismissal entered on August 9, 2016 (doc. 43), Plaintiff Charles Cantrell is no longer a party to this action.

Pending before the Court are the following motions:

• Motion for Summary Judgment (doc. 66) filed by the City (the "City's Motion") on May 22, 2017;

• Motion for Summary Judgment (doc. 73) filed by the ECCRP and Ms. Zaner (the "ECCRP Defendants' Motion") on May 25, 2017; and

• Objection to Admissibility and Motion To Strike Declaration of Richard Rhea filed by Plaintiffs (the "Strike Motion") on October 19, 2017.

The Court has reviewed the parties' filings offered in support of and opposition to the motions. (Docs. 67-72, 74-76, 79-83, 87-89, 91). For the reasons set out below, the City's Motion is due to be granted in part and otherwise termed as moot. The ECCRP Defendants' Motion is due to be granted in part and otherwise denied or termed as moot. Finally, the Strike Motion is due to be termed as moot.

II. STANDARDS

A. Summary Judgment

Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to 'come forward with specific facts showing that there is a genuine issue for trial.' "

International Stamp Art, Inc. v. U.S. Postal Service , 456 F.3d 1270, 1274 (11th Cir. 2006) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).

B. Evidentiary Rulings

"All evidentiary decisions are reviewed under an abuse-of-discretion standard" without regard to the type of proof challenged. General Elec. Co. v. Joiner , 522 U.S. 136, 141, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) ; id. at 143, 118 S.Ct. 512 (concluding that the Eleventh Circuit Court of Appeals committed reversible error "[i]n applying an overly 'stringent' review to [the district court's experts' testimony] ruling [because] it failed to give the trial court the deference that is the hallmark of abuse-of-discretion review"). "An abuse of discretion can occur where the district court applies the wrong law, follows the wrong procedure, bases its decision on clearly erroneous facts, or commits a clear error in judgment." United States v. Estelan , 156 Fed.Appx. 185, 196 (11th Cir. 2005) (citing United States v. Brown , 415 F.3d 1257, 1266 (11th Cir. 2005) ).

Moreover, as the Eleventh Circuit has made clear, not every incorrect evidentiary ruling constitutes reversible error:

Auto-Owners' second argument is that it is entitled to a new trial on the basis of what it describes as a number of erroneous evidentiary rulings by the district court. Evidentiary rulings are also reviewed under an abuse of discretion standard. Finch v. City of Vernon , 877 F.2d 1497, 1504 (11th Cir. 1989). Moreover, even if Auto-Owners can show that certain errors were committed, the errors must have affected "substantial rights" in order to provide the basis for a new trial. See FED. R. EVID. 103(a). "Error in the admission or exclusion of evidence is harmless if it does not affect the substantial rights of the parties." Perry [v. State Farm Fire & Cas. Co.] , 734 F.2d [1441,] at 1446 [ (1984) ]. See also Allstate Insurance Co. v. James , 845 F.2d 315, 319 (11th Cir. 1988).

Haygood v. Auto-Owners Ins. Co. , 995 F.2d 1512, 1515 (11th Cir. 1993). Therefore, even the existence of many evidentiary errors does not guarantee the party appealing a new trial. Instead, such erroneous rulings by a district court must "affect the substantial rights of the parties" for reversible error to occur.

III. FACTUAL BACKGROUND

Both Plaintiffs have been convicted and/or pled guilty to misdemeanor offensives within the jurisdiction of the Attalla Municipal Court (the "AMC"). Plaintiffs' civil rights suit challenges Defendants' practices under a court referral program (the "CRP") that the AMC ordered them to participate in as a requirement of their probation and a suspension of their sentences tied to their misdemeanor convictions.

Plaintiffs have summarized their respective AMC and CRP proceedings (doc. 83 at 7-26 ¶¶ 1-105) as follows.

MR. LOYD

On July 23, 2009, Mr. Loyd was sentenced by the AMC on a misdemeanor charge of public intoxication (MC09-0461). Mr. Loyd received a 60-day jail sentence, which was suspended, and was ordered to enroll in the CRP. Based upon the ECCRP records filed in the Brannon case that relate to Mr. Loyd, on September 22, 2009, the ECCRP issued a return to court form notifying Judge Kenneth Robertson of the AMC that Mr. Loyd had been terminated from the CRP with respect to AMC case number 09-461. (Brannon , Doc. 165-3 at 6 (N.D. Ala. July 3, 2017) ). On March 1, 2011, the ECCRP call logs note that Mr. Loyd was supposed to re-enroll in the CRP, however, no AMC written order to that effect can be found. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF. Mr. Loyd was scheduled for an evaluation on March 14, 2011.

On March 15, 2011, AMC records show that Mr. Loyd contacted the AMC to request his time for participation in the CRP run concurrent with an Etowah County case he had in front of Judge Rhea. The AMC set the matter for hearing on April 21, 2011.

Throughout March, April and May, Mr. Loyd was doing well with the CRP requirements, showing up for drug tests, color-code screening, and paying his fees. There are no notes in the ECCRP call log indicating that he failed to show up or complete a requirement. However, on July 14, 2011, the ECCRP notes that Mr. Loyd "owes too much to test."

Because Mr. Loyd was sentenced on July 23, 2009, he maintains that the two-year statutory maximum period for probation and/or the CRP should have expired on July 23, 2011. There is no AMC record to indicate that his probation was revoked or that his probationary period was tolled for any reason. At the same time, the record lacks any evidence of a written order from the AMC indicating that Mr. Loyd's obligation to complete the CRP was no longer a condition of his suspended sentence for his AMC misdemeanor case. CAF. Mr. Loyd continued to be subjected to the CRP requirements beyond July 23, 2011.

On July 26, 2011, Mr. Loyd failed to show up for a color-code drug test. On August 1, 2011, Mr. Loyd paid his June and July color-code fees and late fees. On August 3, 2011, Mr. Loyd returned to the ECCRP for a color-code drug test. On August 16, 2011, Mr. Loyd came to the ECCRP for a color-code drug test.

On August 24, 2011, the ECCRP called Mr. Loyd to report in by August 31, 2011, and pay $100 or he would be terminated from the CRP. There is no indication that he was notified in writing of this deadline. At the same time, the absence of a written notice does not mutually exclude an oral contact being made by the ECCRP. CAF. On August 30, 2011, Mr. Loyd returned to the ECCRP for monitoring. He paid monitoring fees, August color-code fees, and late fees. It is noted that he had a "bad attitude about fees."

On September 1, 2011, Mr. Loyd reported to the ECCRP for color-code testing. On September 12, 2011, Mr. Loyd was a no-show for a color-code drug test. On September 21, 2011, Mr. Loyd reported to the ECCRP for color-code testing. At this time, he claims to have started over in the CRP because of his failure to show up for drug testing on September 12, 2011. There is no record of a return to court form for the failure to show up for the drug test. There is no record of a AMC written order for Mr. Loyd's participation in the CRP to start over. At the same time, the absence of written order does not mutually exclude an oral order by the AMC. CAF. Finally, there is no indication that the ECCRP had ever started Mr. Loyd over previously due to his failure to show up for testing.

On October 11, 2011, Mr. Loyd reported to the ECCRP for color-code screening but was not drug tested because he "owe[d] too much to test." On October 24, 2011, Mr. Loyd reported to the ECCRP for color-code screening, but was not drug tested because he "owe[d] too much to test." On November 2, 2011, Mr. Loyd was a no-show for color-code screening and was terminated from the CRP.

On November 3, 2011, the ECCRP issued a return to court form notifying the AMC that Mr. Loyd failed to report for color-code screening on September 12, 2011, and November 2, 2011. The ECCRP also noted that he owed too much to test on October 11, 2011, and October 24, 2011. The form also requested that a warrant be issued for Mr. Loyd's arrest. The return to court form also referenced Mr. Loyd's no-show on September 12, 2011, but he had already started over on the CRP requirements and had reported to the ECCRP at least three times after that earlier no-show in September.

On November 17, 2011, the AMC issued a Notice of Return to Court and set a court date of January 19, 2012. On January 19, 2012, Mr. Loyd was found in "Contempt/CRO" and ordered to serve 5 days in jail. The AMC also ordered Mr. Loyd to re-enroll in the CRP upon his release. Mr. Loyd was set to be released from jail on January 24, 2012, but was actually released on January 26, 2012, "per Captain Higgins." Thus, Mr. Loyd actually served seven days in jail rather than five.

On February 3, 2012, the ECCRP issued a return to court form notifying the AMC that Mr. Loyd failed to re-enroll in the CRP after his release from Attalla City Jail. The form also requested a warrant to be issued for his arrest. On this same date, Mr. Loyd also was noted as terminated in MIDAS. Although the AMC ordered Mr. Loyd to re-enroll in the CRP upon his release, there was no deadline by which to do so. At the same time, the absence of a written order does not mutually exclude an oral order indicating a deadline. CAF. There is also no indication that Mr. Loyd was given any written notice that he had a deadline to enroll or that he was about to be terminated from the CRP.

On March 20, 2012, a new case management plan was submitted for Mr. Loyd, but it was designated as for his Gadsden Municipal Court ("GMC") case. Mr. Loyd was shown as active in MIDAS for his GMC case as well.

On March 26, 2012, Mr. Loyd called the ECCRP. On March 27, 2012, Mr. Loyd reported to the ECCRP, received drug testing pursuant to color-code screening, signed a new case management plan, and scheduled a new evaluation for April 12, 2012. It is also noted that Mr. Loyd owed $110 in back fees. After Mr. Loyd was terminated on February 3, 2012, there was is no written record of any AMC order for him to re-enroll in the CRP. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF. Also, the record lacks any evidence of a written order from the AMC indicating that Mr. Loyd's obligation to complete the CRP was no longer a condition of his suspended sentence for his AMC misdemeanor case. CAF.

On April 4, 2012, the ECCRP contact log notes that Mr. Loyd did not show up for a color-code drug test. On April 12, 2012, Mr. Loyd's GMC case was closed per written order.

On April 13, 2012, the ECCRP issued a return to court form notifying the AMC that Mr. Loyd failed to report in for an evaluation on April 12, 2012, that he failed to report for color-code testing on April 4, 2012, and that he failed to pay fees. The form also requested the AMC to set a show cause hearing.

It should be noted that Mr. Loyd was terminated from the CRP on February 3, 2012, and there is no record of any court order for him to re-enroll in the CRP. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF. Additionally, the record lacks any evidence of a written order from the AMC indicating that Mr. Loyd's obligation to complete the CRP was no longer a condition of his suspended sentence for his AMC misdemeanor case. CAF. There is also no record of the missed evaluation on April 12, 2012, in the ECCRP contact logs.

On May 11, 2012, the AMC issued a Notice of Return to Court and set a court date for June 14, 2012. On July 2, 2012, a complaint was filed against Mr. Loyd for Failure To Appear on June 14, 2012. The complaint was signed by the City. On that same date, an Alias Warrant for Arrest for Failure of Defendant To Appear was entered by a magistrate. The warrant and the complaint signed by the City have corresponding warrant numbers.

On September 29, 2012, the Alias Warrant was stamped as cleared by Circuit Court Judge Millican. Mr. Loyd hired an attorney, Eddy Cunningham, as a result of the warrant. On October 11, 2012, Mr. Loyd was released from the CRP per AMC order.

As noted above, Mr. Loyd was sentenced on July 23, 2009. Mr. Loyd maintains that the statutory maximum period for probation, the suspended sentence, and/or the CRP requirements should have expired on July 23, 2011. After this statutory maximum period had expired, Mr. Loyd continued to be subjected to the CRP requirements for more than a year-until October 11, 2012-when he was released from the CRP and his AMC case was closed.

After October 11, 2012, Mr. Loyd was scheduled for at least one monitoring session, called by the ECCRP at least twice, color-coded at least eleven times, and returned to court at least three times. Mr. Loyd was also charged drug-testing fees, monitoring fees, and/or late fees at least twice during this time. Mr. Loyd maintains that he was also incarcerated for at least seven days as a direct result of his failure or inability to comply with the CRP requirements after the statutory maximum period had expired.

Mr. Loyd had at least one complaint and warrant sworn out against him by the City that directly stemmed from his inability or failure to comply with the CRP requirements beyond the statutory maximum. He was never arrested as a result of that complaint or warrant, but he was required to hire an attorney to represent him in that matter and have the warrant recalled.

Mr. Loyd maintains that the ECCRP was actively and knowingly pursuing him for fees and failures under the CRP during a period of time that he should have been terminated from it and not been ordered by the AMC to re-start or re-enroll.

MR. HUNTER

On March 29, 2007, Mr. Hunter was sentenced by the AMC on a misdemeanor charge of unlawful possession of drug paraphernalia (MC07-0143). He was sentenced to a 60-day jail sentence, which was suspended, and ordered to enroll in the CRP.

On April 16, 2007, Mr. Hunter enrolled in the CRP and received a case management plan that required twelve months of monitoring, color-code screening and attending two self-help meetings (AA) a week. On April 22, 2008, the ECCRP re-started Mr. Hunter on his CRP requirements because he had failed to attend the requisite number of AA meetings and, as a result, he received a new case management plan. Mr. Hunter points out that he was testing clean and paying, the only issue was that he lacked AA meetings. At the same time, attendance at AA meetings was one of the requirements of his suspended sentence ordered by the AMC. CAF.

There is no written order from the AMC to re-start Mr. Hunter on the CRP. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF. There also is no indication that the ECCRP made a written report to the AMC about Mr. Hunter's failure to attend the required AA meetings. At the same time, the absence of a written communication does not mutually exclude an oral contact being made by the ECCRP. CAF.

On May 11, 2008, Mr. Hunter completed level one of the CRP and received a certificate of completion. There are no issues noted for Mr. Hunter throughout the rest of 2008.

On February 23, 2009, a DHR worker called the ECCRP to inform it that Mr. Hunter had a positive drug test. The contact logs note that the "case worker will instruct [Mr. Hunter] to report." It also notes that Mr. Hunter was supposed to report on February 27, 2009. However, there is no written indication that Mr. Hunter was made aware of this deadline to report. At the same time, the absence of a written communication does not mutually exclude an oral contact being made by the ECCRP. CAF.

On March 2, 2009, the ECCRP issued a return to court form notifying the AMC that Mr. Hunter had failed to report for required monitoring sessions in January and February. The form also requested that a warrant be issued for Mr. Hunter's arrest. However, there is no written indication in the ECCRP contact logs that Mr. Hunter was scheduled for a monitoring session or that he failed to attend a monitoring session.

On March 8, 2009, the AMC issued a Notice To Show Cause for Failure To Attend the CRP and set a court date for March 19, 2009. On March 19, 2009, the AMC ordered Mr. Hunter to re-enroll in the CRP. The ECCRP notes that Mr. Hunter was supposed to "return to complete CRO," however the AMC records actually do not order Mr. Hunter to "complete" the CRP, just re-enroll.

Because Mr. Hunter was sentenced on March 29, 2007, he maintains that the two-year statutory maximum period for probation, suspended sentence, and/or the CRP should have expired on March 29, 2009. There is no AMC written record indicating that his probation was revoked or that his probationary period was tolled for any reason. At the same time, the record lacks any evidence of a written order from the AMC indicating that Mr. Hunter's obligation to complete the CRP was no longer a condition of his suspended sentence for his AMC misdemeanor case. CAF. Mr. Hunter continued to be subjected to the CRP requirements beyond March 29, 2009.

On March 30, 2009, the ECCRP noted in the contact logs that, if Mr. Hunter did not report in by March 31, 2009, he would be terminated. Although the AMC did order Mr. Hunter to re-enroll in the CRP, there is no written record from the AMC reflecting a deadline by which to do so. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF. Also, there is no written evidence confirming that Mr. Hunter was made aware of the March 31, 2009, deadline. At the same time, the absence of a written communication does not mutually exclude an oral contact being made by the ECCRP. CAF.

On April 1, 2009, the ECCRP issued a return to court form notifying the AMC that Mr. Hunter had failed to make contact and re-enter the CRP. The form also requested that a warrant for his arrest be issued. On the same day, the ECCRP changed Mr. Hunter's status to "terminated." Also on April 1, 2009, the AMC issued a Notice To Show Cause for Failure To Attend the CRP and set a court date for April 23, 2009.

On April 23, 2009, the AMC found Mr. Hunter in "Contempt/CRO" and ordered him to 60 "mandatory days" in jail. His original release date was set for June 21, 2009. However, that release date was struck through and a release date of May 1, 2009, was given with a new court date of June 4, 2009.

On May 1, 2009, a phone call is noted in MIDAS that Mr. Hunter was told to report on May 4, 2009, and sign back up with the CRP. There is no written order from the AMC ordering Mr. Hunter to re-enroll with the CRP upon his release from jail. At the same time, the record lacks any evidence of a written order from the AMC indicating that Mr. Hunter's obligation to complete the CRP was no longer a condition of his suspended sentence for his misdemeanor case. CAF. On May 11, 2009, a phone call is noted in MIDAS that Mr. Hunter was told to report by 4:00 p.m. that day or he would be terminated.

On May 13, 2009, the ECCRP issued a return to court form notifying the AMC that Mr. Hunter had failed to re-enroll with the CRP as instructed by the AMC on May 1, 2009. There is no written record of the AMC ordering Mr. Hunter to re-enroll with the CRP on that date. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF.

On June 4, 2009, the AMC ordered Mr. Hunter to re-enroll in the CRP and indicated that he would get "jail next time." The AMC also set him for a CRP review on December 10, 2009. The ECCRP notes in its contact logs that Mr. Hunter was given a 5-day suspended sentence, ordered to re-enroll in the CRP, and told to report by June 5, 2009. On June 5, 2009, Mr Hunter reported to the ECCRP and was scheduled for a new evaluation. It was noted that "when [Mr. Hunter] completes meetings, will complete him then per [court]."

On June 22, 2009, Mr. Hunter was called and scheduled for a new evaluation on July 8, 2009. He was told to bring $80 on that date.

On July 8, 2009, the ECCRP called Mr. Hunter and got two wrong telephone numbers. On July 9, 2009, Mr. Hunter reported to the ECCRP for an evaluation. He was screened for drugs and tested positive. Mr. Hunter was given a new evaluation and signed a new case management plan. This new plan gave him a "goal date" of August 27, 2010-more than a year away-for completing the CRP.

On July 31, 2009, August 4, 2009, and August 11, 2009, Mr. Hunter was a no-show for color-code screening. On August 11, 2009, Mr. Hunter was terminated from the CRP. There is no written evidence indicating that Mr. Hunter was given notice that he was about to be terminated from the CRP.

On August 12, 2009, the ECCRP issued a return to court form notifying the AMC that Mr. Hunter had failed to report for three color-code drug tests. On August 19, 2009, the AMC issued a Notice To Show Cause for Failure To Attend the CRP and set a court date for September 24, 2009. On September 24, 2009, the AMC noted to issue an alias writ. However, the AMC entered a note the next day to hold off on issuing the alias writ until October 8, 2009, as Mr. Hunter had contacted the AMC with an explanation that he had missed his court date because he was injured at work and was in the emergency room.

On October 8, 2009, the AMC ordered Mr. Hunter to re-enroll in the CRP. The ECCRP notes that Mr. Hunter was ordered to re-enroll in the CRP and was supposed to report by October 13, 2009. There is no written record from the AMC imposing a deadline on Mr. Hunter by which to report to the ECCRP and re-enroll. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF.

On October 19, 2009, the ECCRP noted that Mr. Hunter had not called or reported in and terminated him from the CRP. Again, there is no written order from the AMC making Mr. Hunter aware of any deadline by which he was supposed to report to the ECCRP and re-enroll in the CRP. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF. There also is no written evidence indicating that he was notified of his imminent termination from the CRP.

On October 19, 2009, the ECCRP issued a return to court form notifying the AMC that Mr. Hunter had failed to re-enroll in the CRP. On October 21, 2009, the AMC issued a Notice To Show Cause for Failure To Attend the CRP and set a court date for November 19, 2009. Mr. Hunter missed the show cause setting. CAF.

Subsequently, a complaint was filed against him for Failure To Appear in Court on November 19, 2009. That complaint was signed by the City. On January 11, 2010, an Alias Warrant of Arrest for Failure of Defendant To Appear was issued by a magistrate. Both the warrant and the complaint signed by the City have corresponding warrant numbers. On February 19, 2010, Mr. Hunter was arrested on the Failure To Appear. The arrest record references the same warrant number that the complaint signed by the City and the Alias Warrant contain.

Mr. Hunter's arrest for Failure To Appear led to a new charge and case number. (MC10-0083). He was found guilty of Failure To Appear on March 25, 2010, and was ordered to re-enroll in the CRP. He was also set for a CRP review on September 23, 2010.

On March 31, 2010, Mr. Hunter was called and informed to report to the CRP by April 5, 2010. There is no written record that confirms that this was a deadline set by the AMC. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF.

On April 5, 2010, Mr. Hunter reported to the ECCRP, he was color-coded and the ECCRP noted that he still needed 156 self-help meetings. On April 7, 2010, Mr. Hunter had a positive color-code drug test. The ECCRP noted that he owed $60 in monitoring fees plus drug-testing and late fees by April 9, 2010.

On April 14, 2010, April 23, 2010 and May 11, 2010, Mr. Hunter did not report in for color-code drug tests. On May 11, 2010, the ECCRP terminated him. There is no written evidence indicating that Mr. Hunter was made aware that termination was imminent prior to actually being terminated.

On May 12, 2010, the ECCRP issued a return to court form notifying the AMC that Mr. Hunter had failed to report for three color-code drug tests. The form also requested that a warrant be issued for his arrest. Also on May 12, 2010, the AMC issued a Notice To Show Cause for Failure To Attend the CRP and set a court date for June 10, 2010.

On June 10, 2010, the ECCRP noted that Mr. Hunter did not appear for his scheduled court date. On June 14, 2010, the AMC issued a new Notice To Show Cause for Failure To Attend the CRP and set a court date for June 24, 2010.

On June 24, 2010, Mr. Hunter was found in "Contempt/CRO" and given a "mandatory" 120 days in jail. He was further required to re-enroll in the CRP upon his release from jail. His release date was set on October 28, 2010.

On July 29, 2010, the AMC noted that Mr. Hunter was released from jail after serving 35 of his 120 days for contempt. A CRP review was set for September 23, 2010. Mr. Hunter hired attorney Danny Bone who spoke with the AMC judge and got Mr. Hunter released from jail early.

On July 29, 2010, the ECCRP noted that Mr. Hunter had been released from jail and if he did not report to it by August 6, 2010, he would be terminated. There is no written record from the AMC setting this deadline for Mr. Hunter to report to the ECCRP. At the same time, the absence of a written order does not mutually exclude an oral order by the AMC. CAF. There also is no written evidence indicating that Mr. Hunter was made aware of this deadline by which he must report in or be terminated.

On August 6, 2010, Mr. Hunter was terminated from the CRP. The ECCRP noted that a printed return to court form was issued but a copy of it does not appear in the records produced. Mr. Hunter's termination is not reflected in the ECCRP call log either.

On August 9, 2010, Mr. Hunter reported to the ECCRP. At this time, he was placed back on color-code screening and an evaluation was scheduled for August 24, 2010. Mr. Hunter made payments for drug-testing and rescheduling fees at this time as well. Mr. Hunter had previously been terminated on August 6, 2010, and there is no written order from the AMC to re-enroll after that termination. At the same time, the record lacks any evidence of a written order from the AMC indicating that Mr. Hunter's obligation to complete the CRP was no longer a condition of his suspended sentence for his misdemeanor cases. CAF.

On August 12, 2010, Mr. Hunter did not report for a color-code drug test. The ECCRP noted that he had "one more chance." There is no written evidence indicating that Mr. Hunter was made aware that he only had "one more chance." On August 24, 2010, Mr. Hunter reported to the ECCRP and his evaluation was rescheduled for September 9, 2010.

On September 7, 2010, Mr. Hunter failed to report for a color-code drug test. The ECCRP noted that he would be terminated when he did not show up for his evaluation. There is no written evidence indicating that Mr. Hunter was notified of his imminent termination.

On September 20, 2010, Mr. Hunter failed to report for a color-code drug test and was terminated. On the same day, the ECCRP issued a return to court form notifying the AMC that Mr. Hunter had failed to report for two evaluations and three color-code drug tests.

On September 23, 2010, Mr. Hunter was set for a CRP review but failed to show up. On October 18, 2010, the AMC issued a Notice To Show Cause for Failure To Attend the CR[P] and set a court date for November 4, 2010. Mr. Hunter failed to appear for his scheduled court date. A complaint was filed against Mr. Hunter for Failure To Appear in Court on November 4, 2010. That complaint was signed by the City.

On November 29, 2010, an Alias Warrant for Arrest for Failure of Defendant To Appear was issued by a magistrate. Both the warrant and the complaint signed by the City have corresponding warrant numbers. On August 20, 2011, Mr. Hunter was arrested on the Failure To Appear. The arrest record references a warrant issued on the same date as the Alias Warrant above dated November 29, 2010.

Mr. Hunter's second arrest for Failure To Appear led to a new charge and case number (MC11-0646). Mr. Hunter hired attorney Eddy Cunningham to represent him on this third misdemeanor case. Apparently, Mr. Hunter failed to appear in court on September 22, 2011, because on October 12, 2011, a complaint was filed against him for Failure To Appear in Court on September 22, 2011. The complaint is signed by the City.

On October 12, 2011, an Alias Warrant of Arrest for Failure of Defendant To Appear was issued by a magistrate. Both the complaint and the warrant reference the same warrant number. The Alias Warrant was cleared by Ramos on May 4, 2012, and recalled on May 7, 2012. The underlying case for which this warrant was issued, the Failure To Appear in MC11-0646, was dismissed on July 12, 2012.

On May 5, 2015, Mr. Hunter's misdemeanor case(s) and obligation to complete the CRP were closed. Mr. Hunter was sentenced in his first misdemeanor case on March 29, 2007. Mr. Hunter was sentenced in his second misdemeanor case on March 25, 2010.

Mr. Hunter claims that the statutory maximum period for probation, the suspended sentence, and/or completing the CRP should have expired on March 29, 2009. Mr. Hunter continued to be subjected to ECCRP requirements until May 5, 2015, when his misdemeanor case(s) were closed. After March 29, 2009, Mr. Hunter was scheduled for at least one evaluation, called by the ECCRP at least three times, required to report to the ECCRP at least three times, color-coded at least twelve times, and returned to court at least six times. Mr. Hunter was also charged drug-testing fees, monitoring fees, and/or late fees at least five times. Mr. Hunter also claims that he was incarcerated for at least forty-three days as a direct result of his failure or inability to comply with the CRP requirements after the statutory maximum period had expired.

Mr. Hunter had three complaints and warrants sworn out against him by the City that directly stemmed from his inability or failure to comply with the CRP

requirements. He was arrested twice as a result of those complaints and warrants, received two new charges and cases against him, and had to hire an attorney to represent him in those matters.

IV. PRELIMINARY ISSUES

Before turning to an analysis of the pending motions, the Court will first determine those claims that remain in this severed action.

Plaintiffs' Relevant Claims

Plaintiffs' third amended and restated complaint has 21 separate counts (asserting both federal and state law claims), 359 paragraphs, and 97 pages. (See generally Brannon , Doc. 63 (N.D. Ala. Apr. 9, 2015) ). Because this case was originally part of the Brannon lawsuit, some of the counts included in the operative complaint are beyond the scope of the City's Motion and the ECCRP Defendants' Motion as they relate only to the City of Gadsden, a non-party in this case. The non-applicable counts are Counts Two, Five, Eight, Eleven, Fourteen, and Eighteen. Those counts which remain pertinent here are summarized below:

Plaintiffs' Constitutional Counts

• Count One-Denial of Due Process by the ECCRP and/or Ms. Zaner in her Personal Capacity Applicable to All Plaintiffs (Brannon , doc. 63 at 39-43 ¶¶ 129-142); ,

• Count Three-Denial of Due Process by the City Applicable to Plaintiffs Hunter and Loyd (id. at 46-49 ¶¶ 155-166);

• Count Four-Violation of the Fourth Amendment by ECCRP and/or Ms. Zaner in her Personal Capacity Applicable to All Plaintiffs (id. at 49-52 ¶¶ 167-178);

• Count Six-Violation of the Fourth Amendment by the City Applicable to Plaintiffs Hunter and Loyd (id. at 55-58 ¶¶ 191-201);

• Count Seven-Violation of the Eighth Amendment by the ECCRP and/or Ms. Zaner in her Personal Capacity Applicable to All Plaintiffs (id. at 58-61 ¶¶ 202-217);

• Count Nine-Violation of the Eighth Amendment by the City Applicable to Plaintiffs Hunter and Loyd (id. at 65-68 ¶¶ 232-245);

• Count Ten-Denial of Equal Protection by the ECCRP and/or Ms. Zaner in her Personal Capacity Applicable to All Plaintiffs (id. at 68-73 ¶¶ 246-263); and

• Count Twelve-Denial of Equal Protection by the City Applicable to Plaintiffs Hunter and Loyd (id. at 77-80 ¶¶ 279-293).

Plaintiffs' Alabama Common-Law Counts

• Count Thirteen-False Imprisonment and False Arrest by ECCRP and/or Ms. Zaner Applicable to All Plaintiffs (Brannon , doc. 63 at 80-82 ¶¶ 294-303);

• Count Fifteen-False Imprisonment and False Arrest by the City Applicable to Plaintiffs Hunter and Loyd (id. at 84-86 ¶¶ 313-321);

• Count Sixteen-Abuse of Process by ECCRP and/or Ms. Zaner Applicable to All Plaintiffs (id. at 86-87 ¶¶ 322-328);

• Count Seventeen-Negligent, Reckless and/or Wanton Training and/or Supervision by the ECCRP and/or Ms. Zaner Applicable to All Plaintiffs (id. at 87-88 ¶¶ 329-333); and

• Count Nineteen-Negligent, Reckless and/or Wanton Training and/or Supervision by the City Applicable to Plaintiffs Hunter and Loyd (id. at 89-90 ¶¶ 339-343).

Although Counts One, Three, Seven, and Nine are brought pursuant to § 1983, they also contain fleeting shotgun references to Alabama constitutional law. (See, e.g. , Brannon , Doc. 63 at 40 ¶ 130 (alleging Alabama due process violations); id. at 46 ¶ 156 (same); id. at 58-59 ¶ 206 (referencing Ala. Const. Art. I, § 20 ); id. at 66 ¶ 236 (same) ). To the extent that Plaintiffs wanted to pursue state constitutional claims against Defendants, they were required to replead them in separate counts. (See Brannon , Doc. 40 at 11, 12 (N.D. Ala. Dec. 4, 2013) (pointing out how "Plaintiffs ... have confusingly lumped claims arising under federal law with others arising under state law within the same count" and ordering that "Plaintiffs' restated pleading must ...avoid lumping causes of action together") ). Nonetheless, those purported state constitutional claims, asserted in violation of this Court's repleader requirements, fail for other reasons as stated herein.

Plaintiffs' remaining counts include:

• Count Twenty-Declaratory Relief (Brannon , doc. 63 at 90-93 ¶¶ 344-351); and

• Count Twenty-One-Injunctive Relief (id. at 93-95 ¶¶ 352-359).

V. ANALYSIS

A. Plaintiffs' Constitutional Claims

1. Plaintiffs have not carried their burden to show a triable federal or state constitutional claim.

The ECCRP Defendants begin the argument section of their opening brief by pointing to the absence of proof supporting Plaintiffs' alleged constitutional harms:

In ruling on ECCRP's Motion to Dismiss the Second Amended Complaint, the Court was required to and did "assume the veracity of well-pleaded factual allegations." At summary judgment, however, the Plaintiffs are required to prove their claims by affirmative, substantial evidence. This is a burden that they cannot meet, and a close examination of the evidentiary record reveals a total lack of factual support for Plaintiff[s'] allegations against ECCRP.

(Doc. 73 at 22-23).

Plaintiffs generally respond that the ECCRP Defendants kept them "on [p]robation and [s]ubjected to the [CRP] [r]equirements [b]eyond the [s]tatutory [m]aximum, [r]esulting in [c]onstitutional [h]arms." (Doc. 83 at 28 (emphasis omitted) ). Plaintiffs more specifically maintain as subpoints that the ECCRP Defendants restarted them in the CRP without an order from the AMC and without advising the AMC (doc. 83 at 29-32), imposed graduated sanctions on them without permission from the AMC (id. at 32-35), failed to check and report to the AMC their current probationary status (id. at 35-37), and failed to send written warnings to them prior to terminating their participation in the CRP. (Id. at 37-38).

The City has supplemented its summary judgment materials by joining in the those additional arguments raised by the ECCRP Defendants, including the position that Plaintiffs lack evidence to support a triable constitutional claim. (Docs. 75, 76, 86). Plaintiffs base the City's constitutional liability upon the AMC's asserted violation of Alabama's two-year maximum probation period in enforcing the CRO and the City's signing of complaint against Plaintiffs after their respective maximum probation periods had expired:

A municipal court may suspend execution of a sentence and/or place a misdemeanant on probation for a period of time, not to exceed two years. Ala. Code § 12-13-13(a) ; (g) (1975). "The period of probation or suspension may be continued, extended, or terminated. However,..., in no case shall the maximum probation period of a defendant guilty of a misdemeanor exceed two years." Ala. Code § 15-22-54(A) (1975). The requirement to participate in a CR[P]... generally comes as a condition of probation or of a suspended sentence. Thus, if a probationary period or suspended sentence cannot, by statute, be extended for more than two years, then neither can CR[P] as a condition of the probation or suspension....

The custom of signing complaints against misdemeanants after the ordered probation/suspension periods or the statutory maximum for those periods resulted in constitutional harm to the Plaintiffs. Yet, the City of Attalla swore out complaints without any regard to the limitations of the city's authority over a misdemeanant. That then resulted in more CR[P] requirements, warrants, arrests, and attorney fees for the Plaintiffs.

(Doc. 80 at 33, 38).

Before evaluating the parties' competing constitutional positions, the Court discusses three Alabama laws that are implicated in this case-Alabama's Mandatory Treatment Act of 1990 (the "AMTA"), Ala. Code §§ 12-23-1 - 12-23-19, Alabama's Probation Statute (the "APS"), Ala. Code § 15-22-54, and Alabama's Municipal Court Probation Statute (the "AMCPS"), Ala. Code § 12-14-13.

Ala. Code § 12-23-2 describes AMTA's legislative purpose:

The Legislature finds that the high incidence of crimes which directly involve alcohol and drugs in this state is intolerable; that the problems of alcohol and drug abuse among the citizens of Alabama are extensive and exist at an unacceptable level; that alcohol and/or drug abuse or dependency have been identified as contributing factors in the commission of many crimes; that a concentrated and coordinated state and local effort is needed to address the needs of Alabamians regarding such problems; that a specialized system for screening, evaluating, educating, and rehabilitating defendants convicted of alcohol and drug related offenses is required to address such problems; and that adequate funding should be provided for this purpose. It is therefore the intent of the Legislature:

To establish a specialized court referral officer program to promote the evaluation, education and rehabilitation of persons whose use or dependency on alcohol or drugs directly or indirectly contributed to the commission of an offense for which they were convicted in state or municipal courts and to establish mandatory alcohol and drug abuse treatment programs to provide treatment and rehabilitation for these identified offenders.

Ala. Code § 12-23-2 (emphasis added). The ECCRP is a creature of the AMTA. See Ala. Code § 12-23-4(a) (describing role of the Administrative Director of Courts in approving "individuals or entities to provide alcohol and drug assessment for courts and to conduct the court referral programs in each court jurisdiction of the state"); Ala. Code § 12-23-4(b) (setting forth duties of court referral officers).

The APS establishes various parameters that apply to probation or suspension of a criminal sentence. The key provision of the APS at issue in this case is § 15-22-54(a) :

(a) The period of probation or suspension of execution of sentence shall be determined by the court and shall not be waived by the defendant, and the period of probation or suspension may be continued, extended, or terminated. However,...in no case shall the maximum probation period of a defendant guilty of a misdemeanor exceed two years, nor shall the maximum probation period of a defendant guilty of a felony exceed five years. When the conditions of probation or suspension of sentence are fulfilled, the court shall, by order duly entered on its minutes, discharge the defendant.

Ala. Code § 15-22-54(a) (emphasis added).

The AMCPS provides in full:

(a) Municipal courts may suspend execution of sentence and place a defendant on probation for varying periods of time, not to exceed two years.

(b) The court may require such investigations as may be deemed necessary and desirable to be made by a probation officer or such other suitable person or persons as the court may designate as to the circumstances of the offense and the criminal record, social history and present condition of the defendant.

(c) The court may suspend the execution of sentence and continue the defendant under an existing bond or may require such additional bail as it deems necessary pending the disposition of the application for probation.

(d) The court shall determine and may, at any time, modify the conditions of probation and may require the probationer to comply with the following or any other conditions:

(1) To avoid injurious or vicious habits;

(2) To avoid persons or places of disreputable or harmful character;

(3) To report to the probation officer or other person designated by the judge;

(4) To permit the officer to visit him at his home or elsewhere;

(5) To work faithfully at suitable employment as far as possible;

(6) To remain within a specified area;

(7) To pay the fine and costs imposed or such portions thereof as the judge may determine and in such installments as the judge may direct;

(8) To make reparation or restitution to any aggrieved party for the damage or loss caused by his offense in an amount to be determined by the court; and

(9) To attend defensive driving schools, alcohol countermeasure programs or courses where available and support his dependents to the best of his ability.

(e) The probation or other officer designated by the court shall investigate all cases when directed to do so by the court and report in writing thereon if the court so directs. The officer, if so designated, shall furnish to each probationer released on probation under his supervision a written statement of the conditions of probation and shall instruct the probationer regarding the same. Such officer shall keep informed concerning the conduct and conditions of each person on probation under his supervision by visiting the probationer and requiring reports from the probationer or others and shall report thereon in writing as often as the court may require. Such officer shall use all practicable and suitable methods, not inconsistent with the conditions imposed by the court, to aid and encourage persons on probation and to bring about improvement in their conduct and condition. Such officer shall keep detailed records of his work and shall make such reports in writing as the court may require. The officer so designated shall have, in the execution of his duties, the power to arrest probationers and the same right to execute process as is given by law to peace officers.

(f) All reports, records and data assembled by any probation officer and referred to the court shall be privileged and shall not be available for public inspection except upon order of the court to which the same was referred. All probation reports completed and filed shall be subject to inspection by the defendant or his attorney.

g) The period of probation or suspension of execution of sentence shall be determined by the court and may exceed the length of the sentence, and such period may be extended a period of two years from date of sentencing.

(h) Upon the satisfactory fulfillment of the conditions of probation or suspension of sentence, the court shall, by order duly entered on the minutes, discharge the defendant.

(i) At any time during the period of probation or suspension of execution of sentence, the court may issue a warrant and cause the defendant to be arrested for violating any of the conditions of probation or suspension of sentence. Any probation officer with probable cause to believe a probationer has violated the conditions of probation may arrest such probationer without a warrant. In case of an arrest without a warrant, the probation officer shall prepare a written statement setting forth that the probationer has, in his judgment, violated the conditions of probation, and said statement shall be sufficient warrant for having probationers brought forthwith before the court for determination as to probable cause for the charge of probation violation. The court may order detention of the probationer pending further hearing, after which the court may revoke the probation or suspension of sentence and order and adjudge that the sentence be immediately executed.

Ala. Code § 12-14-13 (emphasis added).

Against this backdrop, Plaintiffs primarily premise their constitutional claims on the theory that Defendants have violated Alabama law by requiring them to remain subject to the CRP's requirements beyond the two-year maximum period applicable to suspended sentences for misdemeanor violations. However, Plaintiffs have not offered any federal or Alabama case authority to support this argument of Defendants' alleged constitutional liability pursuant to this overarching proposition. Instead, this section of Plaintiffs' brief (doc. 83) points to provisions of the AMTA and the Alabama Administrative Office of Courts Court Referral Officer Field Manual (the "CROFM") as the legal grounds for establishing constitutional liability. (See id. at 28 (citing the AMTA and the CROFM as recognizing that "[t]he courts are to supervise ECCRP and approve or give permission for ECCRP's actions") ).

Concerning the ECCRP Defendants' purported constitutional liability, Plaintiffs cite to various parts of the CROFM in an effort to show that Defendants failed to comply with it and likewise failed to communicate adequately with the AMC about Plaintiffs' status under the CRP. One form that Plaintiffs identify is the Order To Complete ("OTC"). (Doc. 83 at 31); (see also Doc. 69-4 at 36, 97, 138-140). Plaintiffs point out that the record does not reflect that the ECCRP Defendants provided the AMC with OTC forms. (Doc. 83 at 31).

Plaintiffs also complain that the ECCRP Defendants did not provide the AMC with any case management plan(s) for them. (Id. at 32). Plaintiffs further fault the ECCRP Defendants for giving them graduated sanctions (due to their relapses) without the permission of the AMC. (Doc. 83 at 33-35); (see also Doc. 69-4 at 50 ("If a relapse does occur, it is [CRP] policy that graduated sanctions be employed with the court's permission.") ).

Plaintiffs additionally maintain that the ECCRP Defendants violated their CROFM because they did not provide them with written notices of non-compliance before issuing a return to court form. (Doc. 83 at 37-38); (see also Doc. 69-4 at 85 ("Defendants should receive at least two written notices or warnings advising of possible termination for failure to comply with the court's order before they are returned to court." (emphasis added) ) ).

Plaintiffs also argue that the ECCRP failed to check on their "current probationary status" (doc. 83 at 36); (see also Doc. 69-4 at 47 (same) ). Then citing to the AMTA's requirement that court referral officers report "appropriate evaluative measures to the court," Plaintiffs suggest that the ECCRP had a duty to keep track of Plaintiffs' statutory maximum date, but "never made an attempt to [do so.]" (Doc. 83 at 36). Plaintiffs further urge that the ECCRP Defendants "had no excuse for not knowing when the court ordered probation period ended." (Id. at 37). However, Plaintiffs fail to point to any provision of the CROFM which expressly requires the ECCRP Defendants to calculate the maximum probation period and/or verify the maximum time remaining on a criminal defendant's probation term. Further, the ECCRP Defendants' obligation to confirm the "status designation (juvenile, youthful offender, other)" (doc. 69-4 at 46) of a probationer, is not the equivalent of a duty to track that person's maximum probation period. Nor does the CROFM language requiring the ECCRP Defendants to check the status of a probationer straightforwardly signify such a duty. (Cf. id. at 18 § II.E ("Reviews sentence and probation requirements with a defendant and monitors participants for compliance, providing follow-up support as necessary."); id. at 46-47 § 5.a-c ("Check legal status [including]...[c]urrent probationary status[.]") ).

In fact, at the end of the "MONITORING PROCEDURE " section, the CROFM states:

Once the defendant has successfully completed all monitoring sessions, a certificate of completion should be issued, and the court should be formally notified of completion. The court copy (canary) of the OTC [Order To Complete] or a copy of the certificate of completion may be used as the formal notification of successfully completing the Court Referral Program.

(Doc. 69-4 at 47). Thus, the CROFM makes no reference to any requirement that completion of the CRP must occur within a probationer's maximum probation period.

Likewise, when Ms. Zaner was asked during her deposition if she had "any responsibility to monitor the length of time that someone is-one of your clients, municipal court defendants, is involved in probation?" (doc. 70-1 at 20 at 79), she responded, "I don't know how I could properly monitor that." Id. Ms. Zaner also stated, "I'm assuming it's the same for everyone unless you take into account the tolling period. I mean, I don't know about all that." (Id. at 80 (emphasis added) ); see also id. (Ms. Zaner's stating that "I don't think I'm qualified [to make that calculation].") ). Thus, neither the CROFM nor Ms. Zaner's testimony establishes that the ECCRP Defendants disregarded an express duty to track a probationer's maximum probation period.

Further, the Court has been unable to locate where the AMTA imposes such an express obligation on court referral officers. Section 12-23-7 of the AMTA mentions probation, but does not mandate that court referral officers keep track of a defendant's maximum probation term. Thus, Plaintiffs have failed to establish that the ECCRP Defendants had a duty to track Plaintiffs' maximum probation periods under Alabama law.

Moreover, it is far from clear that a misdemeanant's compliance with the AMTA is subject to a two-year limitation. In the fact section of their brief, Plaintiffs cite to ALA. R. CRIM. P. 26.3(a) in an effort to dispute "that the state of Alabama has never taken a position that the maximum period of time that a person can be enrolled in a court referral program is limited to two years for any reason." (Doc. 83 at 6 ¶ 188). This Alabama criminal rule of procedure governs presentence reports and makes no mention of calculating probation terms. Instead, the non-felony subpart states only that "[t]he court may require a presentence report in all cases in which it has either discretion over the penalty to be imposed or authority to suspend execution of the sentence." ALA. R. CRIM. P. 26.3(a)(1). Plaintiffs make no effort to explain how this non-substantive rule establishes the unlawfulness of Defendants' conduct under state (or federal) law.

Plaintiffs also refer to 12-14-13(a), (g) of the AMCPS as establishing a two-year maximum period of time in which a misdemeanant can be subject to the AMTA. As set out above, the AMCPS (like the APS) has a two-year limitation. However, the AMTA has no such temporal restriction. Thus, the still unanswered question under Alabama law is whether the AMTA should be construed to contain an implicit cutoff of two years.

However, even when accepting that the AMTA (or another statute) makes the ECCRP Defendants responsible for ensuring compliance with the maximum probation term or that the ECCRP Defendants violated provisions of the CROFM with respect to Plaintiffs' misdemeanor cases, Plaintiffs still have not demonstrated why that matters from a federal (or state) constitutional standpoint. Likewise, accepting that the AMC failed to properly track Plaintiffs' maximum probation periods and improperly extended their participation in the CRP beyond the two-year cutoff, Plaintiffs still have not demonstrated why a reasonable jury could conclude that the City violated Plaintiffs' federal or state constitutional rights because of that evidence.

Concerning Plaintiffs' federal constitutional claims more specifically, "[t]o obtain relief under 42 U.S.C. § 1983, [Plaintiffs] must show (1) that [Defendants] deprived [them] of a right secured under the Constitution or federal law and (2) that the deprivation occurred under color of state law." Willis v. Univ. Health Servs., Inc. , 993 F.2d 837, 840 (11th Cir. 1993) (emphasis added) (citing Sims v. Jefferson Downs Racing Assoc., Inc. , 778 F.2d 1068, 1076 (5th Cir. 1985) ). Here, Plaintiffs' briefs have made little to no effort to explain how Defendants' actions (or inactions) implicate a federal or state constitutional right in a triable manner.

For example, in opposition to the ECCRP Defendants' Motion, Plaintiffs vaguely refer to "[c]onstitutional [h]arms" (doc. 83 at 28 (emphasis omitted) ); "[c]onstitutional [v]iolations" (id. at 38 (emphasis omitted) ); (id. at 41, 45); "constitutional right[ (s) ]" (id. at 39, 42, 52, 57); "unconstitutional conduct" (id. at 41, 42); (id. at 45 (italics omitted) ); (id. at 50 (italics omitted) ); "constitutional deprivation[ (s) ]" (id. at 41, 42, 45); "unconstitutional acts" (id. at 60); "constitutional liberty and property violations beyond the ordered probation and the statutory maximum periods" (id. at 61); and "continuing constitutional and state-law injuries" (id. at 63). However, nowhere in their brief do they discuss in any detail how their evidence establishes a triable due process, equal protection, unlawful deprivation or seizure, cruel and unusual punishment, Fourteenth Amendment, Fourth Amendment, or Eighth Amendment constitutional claim. (See generally Doc. 83).

Similarly, in opposition to the City's Motion, Plaintiffs vaguely mention "unconstitutional acts" (doc. 80 at 27); "constitutional liberty and property violations beyond the ordered probation and the statutory maximum periods" (id. at 29); ("continuing constitutional and state-law injuries") (id. at 31); "[c]onstitutional [h]arms" (id. at 32 (emphasis omitted) ); ("constitutional injury") (id. at 33, 38); and "constitutional harm" (id. at 38). Quoting from the "PRIVATE PROBATION" section of the Ala. Judicial Inquiry Comm'n, Advisory Op. No. 14 (Mar. 4, 2014), Plaintiffs also indicate that "all actions regarding probation be subject to review by the [municipal] judge to ensure that such actions do not violate an offender's rights of due process or equal protection of the law." Id. at 4 (emphasis added). However, nowhere in their brief do Plaintiffs discuss in any detail how their evidence establishes a triable due process, equal protection, unlawful deprivation or seizure, cruel and unusual punishment, Fourteenth Amendment, Fourth Amendment, or Eighth Amendment constitutional claim. (See generally Doc. 80).

Thus, even accepting as true that the ECCRP Defendants violated a duty to track Plaintiffs' probation terms and/or report that information to the AMC or that they violated various provisions of the CROFM, the Court nevertheless finds that Plaintiffs' attempt to show a triable federal or state constitutional claim fails. Similarly, if Plaintiffs are correct that the AMC violated a duty to track Plaintiffs' probation periods and/or to limit Plaintiffs' time subject to the CRP to two years from the original sentence date, the Court nevertheless finds that Plaintiffs' attempt to show a triable constitutional claims against the City (for the AMC's omission) fails.

More specifically, in the absence of referencing a single federal or state constitutional case factually comparable to theirs in which a constitutional right was recognized, or at least listing what elements support any of their purported constitutional claims along with identifying any corresponding proof that a reasonable jury could consider, Plaintiffs' constitutional claims are all fatally underdeveloped. Cf. Flanigan's Enters., Inc. v. Fulton County , 242 F.3d 976, 987 n.16 (11th Cir. 2001) (holding that a party waives an argument if the party "fail[s] to elaborate or provide any citation of authority in support" of the argument), superceded on other grounds by county ordinance as stated in Buehrle v. City of Key W. , 813 F.3d 973, 980 n.3 (11th Cir. 2015) ; Ordower v. Feldman , 826 F.2d 1569, 1576 (7th Cir. 1987) (stating that an argument made without citation to authority is insufficient to raise an issue before the court).

As the Court observed during the pleadings stage:

In redrafting, the court encourages Plaintiffs to refer to pattern jury charges as a way to streamline their allegations and reduce the scope of their currently cumbersome complaint into a more manageable and plausible pleading. Plaintiffs are HEREBY CAUTIONED that their failure to replead in a concise and meaningful manner may result in the dismissal of one or more of their claims with or without prejudice.

(Brannon , Doc. 62 at 37 (N.D. Ala. Mar. 10, 2015) (emphasis by underlining added) ). Despite the Court's early instruction to focus on fundamentals before this action was severed from Brannon , Plaintiffs' oppositions still lack legal clarity as to why their facts present a federal (or state) constitutional case against the ECCRP Defendants or the City. In fact, reading Plaintiffs' briefs reminds this Court of the first two lines of Buffalo Springfield's "For What It's Worth": "There's something happening here[.] But what it is ain't exactly clear[.]"

When a defendant argues that a claim is factually and/or legally insufficient on summary judgment, it is the plaintiff's job, as the non-movant, to make it clear to the Court why a triable claim does, in fact, exist. Scrutiny through a Rule 56 lens typically demands much more from a plaintiff than a showing of Rule 12(b)(6) plausibility; an unclearly developed claim is not a triable one. Here, Plaintiffs' nebulous efforts do not satisfy their Rule 56 burden to show h