Griders v. City of Auburn: Unconstitutional Business Practices and Law Enforcement, Study Guides, Projects, Research of Law

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

PATRICK JAMES GRIDER, )

et al., )) Plaintiffs, ) ) CIVIL ACTION NO. v. ) 3:07cv1031-MHT ) (WO) CITY OF AUBURN, ) et al., ) ) Defendants. ) OPINION AND ORDER The plaintiffs, Patrick James Grider and Daniel Joseph Grider (as well as a company in the restaurant and bar business, The Fourth Quarter, wholly owned by the Griders), charge that the defendants, the City of Auburn and several city officials and employees, improperly enforced various laws against them in myriad ways over a period of several years. The Griders assert claims under the Fourth and Fourteenth Amendments to the United States Constitution, as enforced by 42 U.S.C. § 1983. The Griders also assert related claims under state tort law. Jurisdiction is proper under 28 U.S.C. § 1331 (federal

question), 28 U.S.C. § 1343 (civil rights), and 28 U.S.C. § 1367 (supplemental). This case is now before the court on the defendants’ motion for summary judgment. For the reasons discussed below, that motion will be granted in part and denied in part.

I. STANDARD FOR SUMMARY JUDGMENT Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In deciding whether summary judgment should be granted, the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

1. All defendants except the City of Auburn are parties in their individual capacities only.

II. BACKGROUND

Patrick and Daniel Grider own and operate several bar and restaurant businesses in Auburn, Alabama. They allege a wide-ranging conspiracy targeting their businesses. They name the following as defendants: the City of Auburn, Mayor William Ham Jr., City Manager Charles M. Duggan, Jr., Public Safety Director William James, Deputy Public Safety Director Andrew Meeks, Fire Inspector Thomas Massey, and Police Officers James Terry Neal III, Jason Crook, Christopher Carver, and Slone Maddox. 1 The conspiracy, as described below, consisted of efforts to use criminal laws, building-code inspections, verbal intimidation, city ordinances, and a variety of other legal and illegal means to affect the Griders negatively and destroy the vitality of their business interests, particularly their interest in a business called The Skybar Café.

In 2005, Edwin Lewis, a private developer and contractor, purchased land in Auburn with the goal of developing condominiums and retail space in the downtown area. Some of the newly purchased land included several parcels immediately surrounding Skybar. Prior to purchasing the property, Lewis had private meetings with Mayor Ham and Auburn’s Economic Development Director, Phillip Dunlap. Later in 2005, the City of Auburn, at Lewis’s initiation, began a partnership of sorts to advance Lewis’s goals. According to then-City Manager David Watkins, high-ranking city officials insisted repeatedly that, because of the relationship with Lewis, they had to “get the Skybar out.” Pl.’s Ex. P at 278,

285. After more meetings that included Ham, Dunlap, and Lewis, Dunlap asked what could be done to get rid of the Skybar and stated that, in order for the Lewis project to work, “we have to get them out.” Id. at 129. Ham agreed. High-ranking city officials then considered the use of eminent domain to get rid of the Skybar, including

discussions about how to justify such a removal as a “public purpose”--an idea with which Watkins quickly disagreed because of the political and legal consequences of condemning a viable business in order to hand over property to another private business. Ham and Dunlap eventually suggested that condemning the property would be significantly less costly if Skybar, as the tenant in the building and source of income, were removed. Lewis became close with both Ham and Dunlap and, in 2006, Lewis purchased the remainder of the property immediately surrounding the Skybar. Dunlap, Lewis, and Duggan (who was appointed Assistant City Manager at Ham’s suggestion and became City Manager after Watkins) then attempted to convince the owner of the property that Skybar rented to exchange the property for a nearby parcel. The owner refused, and the eminent-domain approach was apparently not pursued at the time. City officials and employees instead opted for a different approach. The Griders argue that the city

began enforcing its laws in a discriminatory manner in an effort to harass them and put them out of business. These efforts included placing their businesses under special surveillance, improperly calculating occupancy numbers pursuant to building-safety codes, issuing improper criminal citations and charges, and passing specifically targeted city legislation concerning alcohol sales. Police conducted video surveillance a number of times on Skybar, a practice that was unprecedented for any other establishments in Auburn and which was not contemporaneously undertaken for any other business. Moreover, while officers wrote “Incident/Offense Reports” for liquor law violations, the videos associated with those reports do not show any violations. The majority of the tapes created during that surveillance have not been produced to the Griders and are, apparently, unavailable.

Several police officers were engaging in one such instance of video surveillance in the early morning hours of September 29, 2005. While other officers videotaped, Officers Crook and Carver made their way to the rear entrance of Skybar. Upon hearing that the officers were peeking through the back door, Patrick Grider exited the bar and went around to find out what was happening. The officers told Grider that the back door was open and that they were “checking things out.” Pl.’s Ex. A at 5. After a brief conversation with officers, Grider reentered the bar. Later in the morning, Officer Neal entered Skybar and said to Grider, “We got you.” Grider asked what Neal was talking about, and Neal responded, “I told you that we would get your license.” Grider again asked Neal to explain, and Neal replied, “You will find out.” Id. at

The next day, Grider was asked to go to the Auburn Police Department. Grider was told that he was being

charged with attempting to bribe a police officer. Grider then signed a statement, written by a detective, denying the allegations, and he was arrested. Grider had a preliminary hearing on the bribery charge on November 29, 2005. At the conclusion of the hearing, the judge dismissed the case for lack of probable cause. The Griders have also produced a sworn statement from a city resident detailing Officer Neal’s attempts to get her to cooperate with an investigation into the Griders. Neal told her that he had been trying to shut the Griders down for four years, and he threatened her with arrest for underage drinking if she did not cooperate in implicating Patrick Grider in serving alcohol to minors. She claimed that Grider did not serve her any alcohol. Even though officers, under the direction of Police Officer Maddox, had compiled at least ten Incident/Offense Reports throughout the course of this surveillance operation, the surveillance was terminated

at the direction of Lieutenant Keith Howell shortly after the bribery charge against Patrick Grider was dismissed, and the investigation into the alleged violations was not pursued. The Griders and their employees were subsequently cited repeatedly for overcrowding violations. Neither the Griders nor any of their employees were ever convicted of an overcrowding offense. Orders to patrol bars for overcrowding often came from very high levels within the city government, particularly from Duggan, who as Assistant City Manager, directed employees to conduct occupancy checks without the knowledge or permission of his supervisor, Watkins. On October 14, 2006, for example, Patrick Grider was issued an overcrowding citation by Fire Inspector Massey. Grider was found guilty of the offense by a municipal judge and sentenced to a six-month suspended sentence. Grider stated to the judge his intention to appeal, and the judge then immediately sentenced Grider to six months in jail

instead. When Grider appealed to circuit court, the charge was nolle prosequied. The court case involving the overcrowding citation represents the culmination of a lengthy dispute between the Griders and several city employees concerning the occupancy calculations at their establishments, particularly Skybar. The Griders maintain that the initial occupancy calculations for Skybar were arbitrarily low and that, despite renovations increasing the size of the building, the occupancy numbers given to Skybar upon its opening in 2005 were the same as the calculations from 1998. The city also, for the first time in the building’s history, divided the occupancy number into a front and rear portion and required that a fire-alarm system be installed. Fire Inspector Massey and Deputy Public Safety Director Meeks then informed the Griders that the occupancy number could not be increased until a sprinkler system was installed and that the Skybar would be closed if such a system was not installed

by the end of 2005. The Griders argue that these requirements were improper based on local building-safety codes because the renovations they had made did not trigger the requirements for new buildings. Finally, after the installation of the sprinkler system, Meeks used square-footage calculations that differed from those applied to other similar buildings to determine occupancy and arbitrarily decreased capacity levels based on purported problems with egress and limitations of the fire system that had been unnecessarily installed in the first place. In addition to discriminatory building-code enforcement, the Griders contend that they were the target of a series of discriminatory actions by the city council based on legislation proposed and supported chiefly by Mayor Ham and now-City Manager Duggan. The Griders argue that a resolution in 2001 and ordinances in 2001, 2007, and 2008 sought to single them out for harsher treatment and indicate a consistent plan to

modify liquor laws in ways that harmed their businesses, including changing the requirements of various licenses shortly after the Griders obtained those licenses. It would be unmanageable to reproduce here all of the details and evidence uncovered throughout discovery and placed into the record. Accordingly, additional detail, to the extent it is included, will be discussed when relevant to specific claims.

III. DISCUSSION A. § 1983 Claims

1. Substantive Claims The Griders assert a false-arrest claim against Fire Inspector Massey for his October 2006 citation; malicious-prosecution claims against Massey for the October 2006 citation as well as citations in November 2005; a malicious-prosecution claim against Police Officer Carver for the fall 2005 bribery charge; equal- protection claims against Mayor Ham and City Manager

2. The Griders asserted several other claims, but those claims are time-barred. The Griders filed this suitfor the § 1983 claims is two years. on November 21, 2007. The statute See Owens v. Okure, of limitations 488 U.S. 235 (1989) (holding that § 1983 claims look to the general state law limitations statute for personal injury actions); 1975 Ala. Code § 6-2-38(l) (establishing general personal injury limitations period of two years). While state law determines the applicable limitations period, federal law determines when a claim accrues, thus commencing the applicable state limitations period. Wallace v. Kato, 549 U.S. 384, 388 (2007). The Griders concede that their false-arrest claims against Massey arising from his November 2005 citations and the false- arrest claim against Carver, accruing on September 30, 2005, are barred. See Kato, 549 U.S. at 388-89 (holding that false-arrest claims generally accrue at the time of the false arrest or, more precisely, at the time when the false arrest or imprisonment ends). Likewise, the (continued...)

Duggan for proposing certain legislation; an equal- protection claim against Meeks for improperly enforcing the city’s building codes; and due-process and equal- protection claims against the city based, essentially, on its alleged policy and custom to sanction the above violations. The Griders also assert a conspiracy among all named defendants to commit these federal torts, and they ask the court to declare several city enactments unconstitutional. 2

2. (...continued) Griders do not dispute that claims against Ham, Duggan, and Meeks accruing before November 21, 2005 have expired. Any other claims arguably implicated by the lengthy complaint were not argued in the Griders’ response in opposition to summary judgment. Accordingly, they are considered waived. See Brasseler, U.S.A. I, L.P. v. Stryker Sales Corp., 182 F.3d 888, 892 (11th Cir. 1999) (affirming the “unremarkable proposition that assertions made in the pleadings[,] ... but not made in opposition to a motion for summary judgment, need not be considered by the district court ... in ruling on the motion for summary judgment”). This includes any possible claims of conspiracy based on state law.

a. False-Arrest Claim Against Massey Fire Inspector Massey argues that he cannot be liable because the citation he issued on October 14, 2006, does not constitute an arrest and because, even if it does, he is entitled to qualified immunity given that he had arguable probable cause to issue the citation. The citation for overcrowding issued by Massey required Patrick Grider to appear in Auburn Municipal Court to answer a misdemeanor charge. The mere issuance of a citation is typically treated as qualitatively different from a physical seizure or arrest, in which

courts usually require the subject to feel that she is not free to leave. See Bielanski v. County of Kane, 550 F.3d 632 (7th Cir. 2008) (“No court has held that a summons alone constitutes a seizure, and we conclude that a summons alone does not equal a seizure for Fourth Amendment purposes.”); see also Martinez v. Carr, 479 F.3d 1292 (10th Cir. 2007) (holding that a misdemeanor citation cannot support a claim for unlawful arrest). Although it can surely be argued that Grider was not free to refuse the citation and, further, that the citation would inevitably lead to a future seizure, the mere issuance of an order to appear at a later date to stand trial is not the kind of immediate physical harm that has been held, rightly or wrongly, to constitute an illegal arrest. To be sure, there should be a constitutional remedy for the intentional issuance of citations charging misdemeanor crimes without probable cause, even if no physical seizure typically associated

3. The court does not reach the question of whether, even if no physical seizure occures, the Patrick Grider could have other remedies available to him--such as equal-protection or due-process claims--for the intentional issuance of citations that charge misdemeanor offenses without probable cause. The contours of such claims will not be examined here because Grider has not attempted to make any arguments implicating them.

with arrests occurs contemporaneously. 3 At least when a malicious-prosecution claim is available under § 1983, however, such a claim is the proper vehicle to attack such an illegal citation when it involves only the potential of future physical seizures. Because, under current law, there was no seizure, summary judgment will be entered against Patrick Grider on his false-arrest claim against Massey.

b. Malicious-Prosecution Claims Against Massey i. October 2006 Citation Officers who demonstrate that they acted within their discretionary authority are entitled to qualified immunity unless their actions violated clearly established constitutional rights. Cottone v. Jenne, 326

F.3d 1352, 1358 (11th Cir. 2003). Patrick Grider argues that Fire Inspector Massey could not possibly have been acting within the scope of his discretionary authority because Auburn simply did not, at that time, have any criminal sanctions for overcrowding. Grider is correct that the combination of multiple local ordinances and fire-code sections purportedly addressing this issue is confusing, and it is not easy to determine if Auburn had appropriately enacted criminal penalties for such violations. As the Eleventh Circuit Court of Appeals explained in Holloman v. Harland, 370 F.3d 1252, 1265-66 (11th Cir. 2004), however, the concept of discretionary authority, at least in the realm of federal qualified immunity, asks only whether the conduct is the type that fell within the employee’s job responsibilities. Here, Massey’s duties clearly included ensuring compliance with local fire codes and notifying businesses of potential sanctions and hearings related to their noncompliance. Local laws at

least arguably gave him authority to issue citations for violations (an issue addressed in more detail below), and indeed, such conduct was standard among Massey and other Auburn fire inspectors. Massey’s belief that this behavior was part of his job was reasonable. While it is a potentially complicated question whether, generally, a city employee can have qualified immunity for issuing charges that do not exist, in this case the complicated and confusing interaction among various city codes and ordinances was subject to reasonably differing constructions such that it was entirely reasonable for Massey to believe that he had authority to issue citations for overcrowding. Thus, because Massey was acting within the scope of his employment duties, Grider must demonstrate that Massey’s conduct violated his clearly established right to be free from malicious prosecution. To establish a constitutional claim for malicious prosecution, Grider must show the elements of the common-

law tort of malicious prosecution, as well as a violation of their Fourth Amendment rights. See Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003). Even though the parties have not addressed the issue, a malicious- prosecution claim thus requires a Fourth Amendment seizure; indeed, malicious prosecution is a claim cognizable under the Fourth Amendment precisely because of the deprivations of liberty that typically accompany criminal proceedings. In the case of the October 14, 2006, citation, Patrick Grider was clearly seized within the meaning of the Fourth Amendment. The city judge convicted him of the offense and sentenced him to a six-month suspended sentence. After Grider’s attorney notified the judge that he would be appealing the sentence to the state court and that, as a result, he did not want his client to sign a document concerning the sentence as read by the judge, the city judge changed his mind, asked for the sheet of paper back, ordered that Grider “be incarcerated

in the county jail for six months,” ordered that Grider have a seat in the courtroom, and set a standard bond for appeal. Ex. BBB at 27-28. Having demonstrated a Fourth Amendment seizure, Grider must still satisfy the elements of malicious prosecution under Alabama law: (1) institution of a judicial proceeding by the defendant, (2) lack of probable cause, (3) malice by the defendant, (4) termination of the proceeding in favor of the plaintiff, and (5) damages. Allen v. Molton, Allen & Williams Realty Co., 495 So.2d 27, 30 (Ala. 1986). It is not disputed here that Massey instituted criminal proceedings against Patrick Grider; that the proceedings were terminated in Grider’s favor, see Uboh v. Reno, 141 F.3d 1000, 1005 (11th Cir. 1998) (noting that an entry of a nolle prosequi, as occurred in Grider’s case, is viewed as a favorable termination); and that Grider suffered damages, including being forced to appear in court and hire a lawyer to defend himself. Massey disputes,

however, whether Grider has shown malice and lack of probable cause. Massey argues that he had probable cause to issue the citation and that, therefore, he is entitled to qualified immunity on the malicious-prosecution claim. The Griders have put forward significant evidence, discussed below, that another employee arbitrarily and improperly calculated the occupancy numbers and fraudulently required them to make a number of modifications purportedly affecting occupancy calculations. This evidence, about which there is a genuine dispute, creates a real issue concerning whether the Griders were in violation of applicable fire codes. In other words, code inspectors cannot illegally calculate occupancy numbers and then claim that they had probable cause to charge Patrick Grider with a misdemeanor offense when Skybar exceeded the number of patrons allowed by that artificial, arbitrary, and improper calculation.

However, the evidence does not establish that Massey was involved at all in (or even aware of) the allegedly improper calculations. Indeed, the evidence merely establishes that Massey, as part of his duties as an inspector, counted the patrons at Skybar and applied the previously calculated assigned occupancy numbers to issue a citation. Without any evidence of Massey’s involvement in the improper calculations, Grider cannot show that Massey was not reasonably performing his job duties by issuing citations, and, moreover, Grider cannot show that a constitutional right was violated by the October 14, 2006, citation. Grider nonetheless argues that Massey had no probable cause because the bar was not overcrowded and because the offense which Massey charged did not exist under existing city law. First, the only evidence referenced by Grider to establish that the Skybar was not overcrowded on October 14, 2006, is a general denial in Patrick Grider’s affidavit that any of his bars was ever overcrowded at

any time during his operation of the businesses; this denial is based, in part, on information and belief. However, “statements in affidavits that are based, in part, upon information and belief, cannot raise genuine issues of fact, and thus cannot defeat a motion for summary judgment.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005). Second, as the court discusses later, the city had established a criminal offense for violations of the building code (such as overcrowding) and, even if it had not, Massey’s determination that he had the authority to issue citations for that offense was certainly reasonable given the complex interaction of city ordinances and building codes. Summary judgment will be entered against Patrick Grider on his malicious- prosecution claim against Massey based on the October 2006 citation.

ii. November 2005 Citations Grider asserts, almost in passing, malicious- prosecution claims for citations issued by Fire Inspector Massey on November 18 and 19, 2005. However, while Grider has shown that those charges were nolle prosecuied within the two-year limitations period for § 1983, see Owens v. Okure, 488 U.S. 235 (1989) (holding that § 1983 claims look to the general state-law limitations statute for personal-injury actions); 1975 Ala. Code § 6-2-38(l) (establishing general personal-injury limitations period of two years), he has not provided any other detail about the incidents. For example, unlike with respect to the October 2006 citation, he has not even shown that there was an eventual seizure as a result of the citation. See Kingsland v. City of Miami, 382 F.3d 1220, 1236 (11th Cir. 2004) (suggesting that the mere fact of a summons would be insufficient to constitute a seizure for malicious-prosecution purposes). Because Grider has not offered the detail that would allow the court to

determine if he has met the elements of a malicious- prosecution claim with respect to Massey’s November 2005 citations, his Fourth Amendment claim for malicious prosecution based on those citations fails.

c. Malicious-Prosecution Claim Against Carver With respect to Officer Carver’s prosecution of Patrick Grider for bribery, Grider was clearly arrested for Fourth Amendment malicious-prosecution purposes; an arrest made pursuant to a warrant constitutes a seizure pursuant to legal process for the purposes of a malicious-prosecution claim because “an arrest warrant is one of the initial steps of a criminal prosecution.” Whiting v. Taylor, 85 F.3d 581, 585 (11th Cir. 1996). The parties do not dispute that Carver was acting within his discretionary authority when he arrested Grider and instituted criminal proceedings against him; that the proceedings were terminated in Grider’s favor when the judge dismissed the charge for lack of probable cause;