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THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ANTHONY WARREN, ) ) PLAINTIFF, ) ) V. ) No. 2:09-cv-01025-VEH ) HEATH BOACKLE, et al., ) ) DEFENDANTS. )

PRETRIAL ORDER

A pretrial conference was held in the above case on May 19, 2014, wherein,

or as a result of which, the following proceedings were held and actions taken.

1. Appearances: Appearing at the conference were:

Plaintiff: Wendy Brooks Crew, Alyson Hood Rains

All Defendants: Michael K.K. Choy, Elizabeth B. Shirley and R. Rhett Owens

2. Jurisdiction and Venue:

Subject matter jurisdiction exists under 28 U.S.C. §§ 1331, 1343(a)(3) and

(4) and 1367 because certain of Plaintiff's claims arise under the Constitution and

laws of the United States and/or seek damages for the alleged deprivation, under

color of state law, of Plaintiff's civil rights and because this court may exercise

supplemental jurisdiction over Plaintiff's state law claims as they are so related to

the claims over which this court has original jurisdiction that they form part of the

FILED 2014 May-28 PM 02:04U.S. DISTRICT COURT

N.D. OF ALABAMA

Case 2:09-cv-01025-VEH Document 202 Filed 05/28/14 of 29

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same case or controversy under Article III of the United States Constitution. All

jurisdictional and procedural requirements prerequisite to maintaining this action

have been met. Personal jurisdiction and venue are not contested.

3. Parties and Trial Counsel:

Any remaining fictitious parties are hereby STRICKEN. The parties before

the Court and the designated trial counsel are correctly named as set out below:

Parties Trial Counsel

Plaintiff: Anthony Warren Wendy Brooks Crew

Alyson Hood Rains

Defendant: Heath Boackle Michael K.K. Choy

Elizabeth B. Shirley

R. Rhett Owens

Defendant: Thomas Cleveland Michael K.K. Choy


R. Rhett Owens

Defendant: Barrett Dewitt Michael K.K. Choy


R. Rhett Owens


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Defendant: David Doran Michael K.K. Choy


R. Rhett Owens

Defendant: Alvin Fortson Michael K.K. Choy


R. Rhett Owens

Defendant: Kenneth Prevo Michael K.K. Choy


R. Rhett Owens

4. Pleadings:

COMPLAINT (Doc. 1)

ANSWER to Complaint by Thomas Cleveland (Doc. 5)

ANSWER to Complaint by Heath Boackle (Doc. 8)

ANSWER to Complaint by Kenneth Prevo (Doc. 9)

ANSWER to Complaint by David Doran (Doc. 10)

ANSWER to Complaint by Barrett Dewitt (Doc. 11)

AMENDED COMPLAINT (Doc. 26)

ANSWER to Amended Complaint by Alvin Fortson (Doc. 46)

ANSWER to Amended Complaint by Kenneth Prevo (Doc. 47)

ANSWER to Amended Complaint by David Doran (Doc. 48)


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5. Statement of the Case:

(a) Narrative Statement of the Case

Plaintiff, Anthony Warren ("Warren"), sues the following Birmingham

Police Officers: Heath Boackle, Thomas Cleveland, Barrett Dewitt, David Doran,

Alvin Fortson and Kenneth Prevo. Officers Boackle, Cleveland, Dewitt, Doran

and Prevo were involved in Plaintiff Warren’s arrest on January 23, 2008,

following a high speed chase that began in Birmingham and concluded

approximately 22-25 minutes later, after Warren's rollover accident and arrest, in

Hoover, Alabama. The incident giving rise to this suit was videotaped by a camera

mounted on the dash of a BPD police car driven by a BPD tactical officer. Warren

cannot remember the details of what happened immediately before his vehicle

rolled over into the ditch. Warren is serving a 20-year sentence in Ventress

Correctional Facility in Clayton, Alabama. The claims remaining against

Defendant Officers Boackle, Cleveland and Prevo, in their individual capacities,

are Use of Excessive Force, Outrageous Conduct and Assault and Battery. The

remaining claims against Defendant Officers Dewitt and Doran, in their individual

and official capacities, are Use of Excessive Force, Assault and Battery, Failure to

Intervene, and Outrage. The claim remaining against Defendant Officer Fortson,

in his individual capacity, is Unlawful Search and Seizure. All Defendants deny


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that they engaged in any wrongful conduct, and instead, they acted reasonably

under the circumstances that they saw, heard, and perceived.

(b) Plaintiff's Claims

(i) Facts Relevant to Plaintiff's Claims

1. On January 23, 2008, Plaintiff pulled into a convenience store in the

Fountain Heights neighborhood.

2. While pulling into the store, he noticed a white car pulled in closely

behind him and a man jumped out of the vehicle with his hand on a weapon.

3. The man was unknown to the Plaintiff at the time but was later

identified as Officer Fortson.

4. Without identifying himself as a police officer, Fortson began yelling

at Warren that he was in the wrong neighborhood and told Warren to get in

Fortson’s car so they could talk.

5. Unaware that Fortson was a police officer, Warren turned away from

Fortson and Fortson took out his taser and pointed the red taser light on Warren’s

chest.

6. Warren became frightened when he saw the taser light on his chest

and attempted to run. Fortson deployed his taser but the taser malfunctioned.

7. Warren ran and made his way to his van.


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8. When Warren started driving off, Fortson radioed other Birmingham

Police Officers who then initiated and continued a high speed pursuit.

9. The high speed pursuit ended when Defendant Dewitt instigated a pit

maneuver hitting Warren’s vehicle causing Warren to lose control of the van and

roll into a ditch.

10. Warren was ejected from the vehicle and landed unconscious, face

down in a ditch on the side of the interstate.

11. Shortly after Warren landed unconscious in the ditch, Defendants

Prevo, Doran, Dewitt, Boackle and Cleveland descended on Warren and began

beating him in his head and other areas on his body.

12. Specifically, Defendant Dewitt struck Warren several times with his

baton in different areas on Warren’s body.

13. At the same time, Defendant Cleveland struck Warren with his fists in

the head and body and Defendant Doran struck Warren with his fists in the body

while Defendant Prevo and Defendant Boackle kicked and struck Warren while he

lay unconscious in the ditch.

14. Warren was hospitalized for 4 days as a result of Defendants’ use of

excessive force.


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(ii) Plaintiff's Claims

Plaintiff Anthony Warren (“Warren”) seeks compensatory damages for his

own personal injuries, (past and future) medical injuries, and punitive damages

against Defendant Officers. Warren claims that his injuries and damages were

proximately caused by the intentional acts of Defendant Officers in violation of

Warren’s constitutional rights.

a. Use of Excessive Force

In this case the Plaintiff makes a claim under the Federal Civil Rights statute

in violation of 42 U.S.C. §1983. More specifically, the Plaintiff alleges that he was

subjected to excessive force by Defendants Prevo, Doran, Dewitt, Boackle and

Cleveland when they beat him as he lay unconscious, face down in a ditch.

Specifically, Defendant Dewitt struck Warren several times with his baton in

different areas on Warren’s body. At the same time, Defendants Doran and

Cleveland struck Warren with his fists in the head and body while Defendant Prevo

and Defendant Boackle kicked and struck Warren while he lay unconscious in the

ditch.

The Fourth Amendment's freedom from unreasonable searches and seizures

encompasses the plain right to be free from the use of excessive force in the course

of an arrest. Graham v. Connor, 490 U.S. 386, 394-395 (1989). Whether a

specific use of force is excessive turns on factors such as the severity of the crime,


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whether the suspect poses an immediate threat, and whether the suspect is resisting

or fleeing. Post v. City of Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993). In

determining whether the amount of force was reasonable, the Courts have looked

to the number of persons the police have to deal with at one time, the duration of

the action, and the dangerousness of the person subject to the police action in

making this objective assessment. Owens v. City of Lauderdale, 174 F. Supp. 2d

1298, 1308 (2001). Additionally, the Eleventh Circuit has determined that the

"gratuitous use of force when a criminal suspect is not resisting arrest constitutes

excessive force." Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008).

"Because of the absence of any justification for [the officer’s] use of force,

application of the Fourth Amendment reasonableness standard would "inevitably

lead every reasonable officer…to conclude that the force was unlawful."

b. Tort of Outrage

The Eleventh Circuit has acknowledged that the Tort of Outrage could be

brought under circumstances such as these against police officers. In Tinker v.

Beasley, 429 F.3d 1324 (11th Cir. 2005) the Court states: "A police officer who

made obscene phone calls to and otherwise harassed a woman by way of

knowledge he gained through being a police officer, was found to have committed

outrage through abuse of the public trust." See Woodley v. City of Jemison, 770

So. 2d 1093 (Ala. Civ. App. 1999).


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The Court has said that outrage arises from conduct "which is so outrageous

in character and extreme in degree to go beyond all possible bounds of decency

and to be regarded as intolerable in a civilized society." American Road Service

Co. v. Inman, 394 So. 2d 365 (Ala. 1980).

In this case, Defendants Prevo, Doran, Dewitt, Boackle and Cleveland

beating an unconscious Warren while he lay face down in a ditch is so outrageous

in character and extreme in degree to go beyond all possible bounds of decency

and is regarded as intolerable in a civilized society. Specifically, Defendant Dewitt

struck Warren several times with his baton in different areas on Warren’s body. At

the same time, Defendants Doran and Cleveland struck Warren with his fists in the

head and body while Defendant Prevo and Defendant Boackle kicked and struck

Warren while he lay unconscious in the ditch.

c. Assault and Battery

In Alabama, the elements of an assault and battery claim include, "[A]n

intentional, unlawful offer to touch the person of another in a rude or angry manner

under such circumstances as to create in the mind of the party alleging the assault a

well-founded fear of an imminent battery, coupled with the apparent present ability

to effectuate the attempt if not prevented. A successful assault becomes a battery,

which consists of the touching of another in a hostile manner." Perkins v. City of

Creola, 713 F. Supp. 2d 1326, 1349 (S.D. Ala. 2010).


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Defendants Prevo, Doran, Dewitt, Boackle and Cleveland assaulted Warren

when they beat him as he lay unconscious, face down in a ditch. Specifically,

Defendant Dewitt struck Warren several times with his baton in different areas on

Warren’s body. At the same time, Defendants Doran and Cleveland struck Warren

with his fists in the head and body while Defendant Prevo and Defendant Boackle

kicked and struck Warren while he lay unconscious in the ditch.

d. Failure to Intervene

It is clear that "[i]f a police officer, whether supervisory or not, fails or

refuses to intervene when a constitutional violation such as an unprovoked beating

takes place in his presence, the officer is directly liable under Section 1983." Byrd

v. Clark, 783 F.2d 1002, 1007 (11th Cir.1986); Ensley v. Soper, 142 F.3d 1402,

1407 (11th Cir. 1998).

A police officer's personal involvement in an incident may be established, as

required for a finding of liability under § 1983, where they fail to intervene to

protect the constitutional rights of citizens from infringement by other law

enforcement officers in their presence. 42 U.S.C.A. § 1983.

A police officer is personally involved in the use of excessive force, for

purposes of imposition of § 1983 liability, if he either: (1) directly participates in

an assault; or (2) was present during the assault, yet failed to intercede on behalf of


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the victim even though he had a reasonable opportunity to do so. 42 U.S.C.A. §

1983.

A police officer may be liable under § 1983 not only for his personal use of

excessive force, but also for his failure to intervene in appropriate circumstances to

protect an arrestee from the excessive use of force by his fellow officers. 42

U.S.C.A. § 1983.

Defendants Prevo, Doran, Dewitt, Boackle and Cleveland all participated

and watched as each officer beat Warren as he lay unconscious, face down in a

ditch. Each Defendant Officer directly participated in the assault of Warren and

each were present to witness the other Defendant Officers assault Warren but

failed and refused to intercede on Warren’s behalf when they each had an

opportunity to do so. Specifically, Defendant Dewitt struck Warren several times

with his baton in different areas on Warren’s body. At the same time, Defendants

Doran and Cleveland struck Warren with his fists in the head and body while

Defendant Prevo and Defendant Boackle kicked and struck Warren while he lay

unconscious in the ditch.

e. Unlawful Search and Seizure

A temporary detention of individuals during the stop of an automobile by the

police, even if only for a brief period and for a limited purpose, constitutes a

seizure of persons. Delaware v. Prouse, 440 U.S. 648, 653 (1979). An automobile


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stop is thus subject to the constitutional imperative that it not be “unreasonable”

under the circumstances. See Prouse supra, at 659. There is no question that law

enforcement officials may detain a person briefly if they had a reasonable,

attackable suspicion based on objective facts that the person has engaged in, or is

about to engage in, criminal activity. U.S. vs. Powell, 222 F. 3rd 913, 917, (11th

Circuit 2000), relying on the rational stated in U.S. vs. Terry, 392, U.S. 1 (1967).

In this case, Fortson requested the Plaintiff’s driver’s license and Warren

complied and handed it to him. Warren never pushed, shoved or kicked Fortson.

Fortson said the Plaintiff was not under arrest and he did not tell Warren that he

was under arrest when Fortson told Warren to get into the car. Defendant Fortson

had his hand on his weapon when he told Warren to get into the back seat of the

car. Fortson then pulled out his taser, flipped the switch, and pointed the taser gun

at Warren’s chest. Warren had not engaged in any criminal activity nor was there

any evidence that he was about to engage in any criminal activity.

(c) Defenses of Defendants Officers Boackle, Cleveland, Dewitt, Doran, and Prevo.

(i) Facts Relevant to the Defenses of Defendants Officers Boackle, Cleveland, Dewitt, Doran, and Prevo.

1. On January 23, 2008, Officers Boackle, Cleveland, Dewitt, Doran,

and Prevo monitored a vehicular pursuit of Plaintiff Anthony Warren, which began

when Warren eluded Officer Fortson.


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2. Throughout the lengthy pursuit, which lasted approximately 22-25

minutes, Defendants had their lights and sirens on, but Warren failed to pull over.

3. Instead, Warren continued to drive his vehicle erratically, running

citizen vehicles off the road, hitting a school bus, and endangering the lives of

citizens, Birmingham police officers, including the Defendant officers, and

himself.

4. During the chase, BPD Officers were told by dispatch that Warren

threw what appeared to be packets of cocaine out of his vehicle.

5. Officer Angel Santiago called the chase over its duration and warned

over police radio that Warren was showing no regard for human life.

6. Officer Santiago also reported over police radio that, during the chase,

he observed Warren reaching toward the glove compartment on the passenger side

of his vehicle. As a result, Officer Santiago pulled his weapon and aimed at

Warren, but did not fire his weapon when he did not see a weapon in Warren’s

hand.

7. Warren's conduct during the chase, as observed by Officers Boackle,

Cleveland, Dewitt, Doran and Prevo and continuously reported and heard via

police radio, demonstrated that Warren was extremely dangerous and would take

whatever measures necessary to avoid capture.


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8. Warren intentionally rammed Officer Dewitt’s patrol vehicle on at

least two separate occasions.

9. Warren also intentionally struck and seriously injured a Hoover police

officer who was placing spike strips on U.S. Highway 31 near the I-459 entrance

ramp in Hoover.

10. Officers Boackle, Cleveland, Dewitt, Doran and Prevo were aware of

this incident prior to the end of the high-speed pursuit.

11. The Defendant Officers involved in the pursuit could have used

deadly force at various and different times during the 22-25 minute pursuit. They

refrained from doing so, however, demonstrating considerable restraint and a total

absence of malice or ill-intent toward the fleeing suspect, Warren.

12. The chase ended when Warren’s vehicle was involved in a rollover

accident at I-459 N.

13. Warren was ejected from his vehicle, and landed in a ditch.

14. When Officers Boackle, Cleveland, Dewitt, Doran and Prevo arrived

on the scene, Warren was face down in a prone position with his hands under his

abdomen. Defendant Officers did not know and did not see the manner in which

Warren exited his vehicle.

15. At least two of the Officers at the scene commanded Warren to show

his hands. Warren did not comply with these commands.


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16. The Officers used reasonable force to gain control of the victims’

hands. Warren was handcuffed.

17. At and after the time Warren was handcuffed, he was cursing and

resisting arrest.

18. Paramedics were called to evaluate, treat and transport Warren to the

hospital, which they did.

19. Warren is now serving a 20-year prison sentence as a result of being

charged with attempted murder of a Hoover police officer.

(ii) Defenses of Defendants Boackle, Cleveland, Dewitt, Doran, and Prevo.

a. Officers Boackle, Cleveland, Dewitt, Doran and Prevo specifically

adopt and incorporate herein all of the defenses that have been asserted in the

answers to Plaintiff’s complaint, as amended.

b. Officers Boackle, Cleveland, Dewitt, Doran and Prevo reasonably

gauged the "need for the application of force," the "relationship between the need

and amount of force used," and "the extent of the injury inflicted." Specifically,

these officers, during the course of their arrest of Warren, reasonably believed that

their actions were warranted and lawful in light of the severity of the crime at


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issue; the immediate threat to the safety of the officers or others; and Warren’s

failure to comply with the officers’ commands.1

c. Officers Boackle, Cleveland, Dewitt, Doran and Prevo deny that they

used excessive force in violation of the Fourth and Fourteenth Amendments when

they arrested Warren on January 23, 2008.

d. Officers Boackle, Cleveland, Dewitt, Doran and Prevo assert the

defenses of qualified immunity and state law discretionary immunity as to all of

Plaintiff’s federal and state law claims, respectively.2

e. Officers Boackle, Cleveland, Dewitt, Doran and Prevo assert that the

application of de minimus force, and Warren’s arrest does not give rise to or

support a claim for excessive force.3

1 See Crenshaw v. Lister, 556 F.3d 1283, 1290 (11th Cir. 2009) ("[C]laims of excessive force are to be judged under the Fourth Amendment's 'objective reasonableness' standard.") (quoting Brosseau v. Haugen, 543 U.S. 194, 197 (2004) (citing Tennessee v. Garner, 471 U.S. 1 (1985) and Graham v. Connor, 490 U.S. 386 (1989))). Thus, "[t]he question is whether the officer's conduct is objectively reasonable in light of the facts confronting the officer." Crenshaw, 556 F.3d at 1290 (quoting Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002)). In this respect, "[t]he 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Crenshaw, 556 F.3d at 1290 (quoting Graham, 490 U.S. at 396). "Determining whether the force used to effect a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. (quotations omitted). This analysis "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. In addition, other considerations include: "(1) the need for the application of force, (2) the relationship between the need and the amount of force used, (3) the extent of the injury inflicted and, (4) whether the force was applied in good faith or maliciously and sadistically." Crenshaw, 556 F.3d at 1290 (quoting Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008) (quotation omitted)). In this respect, the Supreme Court has "recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Crenshaw, 556 F.3d at 1290 (quoting Graham, 490 U.S. at 396).

2 See Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) ("An officer will be entitled to qualified immunity if his actions were objectively reasonable, that is, if an objectively reasonable officer in the same situation could have believed that the force used was not excessive.") (citing Anderson v. Creighton, 483 U.S. 635 (1987)); see also ALA. CODE § 6-5-338(a).


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f. The injuries claimed by Warren were the proximate result of Warren’s

negligence, and/or intervening, superseding causes for which Defendants cannot be

held liable.4

g. In addition, Warren assumed the risk of his injuries by virtue of his

willful, reckless, and criminal behavior preceding the rollover accident as a result

of which he was ejected into a ditch.5

h. Moreover, there was probable cause to arrest Warren for numerous

traffic violations, reckless endangerment of civilian lives, and for vehicular assault

of the Hoover Police Officer.6

3 See Myers v. Bowman, 713 F. 3d 1319, 1327 (11th Cir. 2013) ("[B]ecause a police officer is entitled to use

some force to arrest a suspect, 'the application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment.'" (quoting Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir.2000)).

4 See General Motors Corp. v. Edwards, 482 So. 2d 1176, 1194–95 (Ala. 1985), overruled on other grounds, Schwartz v. Volvo North America Corp., 554 So. 2d 927 (Ala. 1989) (holding that an intervening cause may insulate a defendant from liability if (1) it occurred after the actions giving rise to the negligence claim against defendant; (2) is unforeseeable to the defendant at the time the defendant acts; and (3) is sufficient to be the sole proximate cause of plaintiff's injury); see also Richter v. Uhrig, 534 So. 2d 260, 262 (Ala. 1988) ("…if the intervening cause was alone sufficient to produce the injury complained of, it is deemed the proximate cause of the injury and the tort-feasor between whose act and the injury the cause intervened is relieved of liability").

5 See Robertson v. Gaddy Elec. & Plumbing, LLC, 53 So. 3d 75, 82 (Ala. 2010) ("Assumption of the risk applies to factual situations in which it is alleged that the plaintiff failed to exercise due care by placing himself or herself into a dangerous position with an appreciation of the risk.") (quoting Harris v. Food Equip. Specialist, Inc., 559 So. 2d 1066, 1068 (Ala. 1990)). "The affirmative defense of assumption of the risk requires that the defendant prove (1) that the plaintiff had knowledge of, and an appreciation of, the danger the plaintiff faced; and (2) that the plaintiff voluntarily consented to bear the risk posed by that danger." Robertson, 53 So. 3d at 82 (quoting Ex parte Potmesil, 785 So. 2d 340, 343 (Ala. 2000)).

6 See Myers v. Bowman, 713 F.3d 1319, 1326 (11th Cir. 2013) ("The existence of probable cause at the time of arrest [ ] constitutes an absolute bar to a section 1983 action for false arrest.") (quoting Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir. 2004)). "Probable cause to arrest exists when an arrest is objectively reasonable based on the totality of the circumstances." Id. "This standard is met when the facts and circumstances within the officer's knowledge, of which he or she has reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Id. (quoting Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir.1998) (internal quotation marks omitted)). "[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual


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i. Officers Boackle, Cleveland, Dewitt, Doran and Prevo also contend

that the facts do not give rise to any claim of outrageous conduct.7

j. Officers Boackle, Cleveland, Dewitt, Doran and Prevo did not engage

in any assault and battery, and their actions were justified based on what they saw,

heard, knew and perceived at time.

k. Officers Boackle, Cleveland, Dewitt, Doran and Prevo did not fail to

intervene because there was insufficient time to intervene and because their actions

were reasonable based on the circumstances, and what they saw, heard, knew and

perceived at the time.

l. Officers Boackle, Cleveland, Dewitt, Doran and Prevo contend that

Plaintiff has failed to state a claim against them under the Fourth, Fifth and

Fourteenth Amendments to the United States Constitution.

showing of such activity," and even "seemingly innocent activity" can provide the basis for probable cause. Myers, 73 F.3d at 1326 (quoting Illinois v. Gates, 462 U.S. 213, 243 n. 13 (1983)).

7 See American Road Service Co. v. Inmon, 394 So. 2d 361, 365 (Ala. 1980) ("[O]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress. The emotional distress thereunder must be so severe that no reasonable person could be expected to endure it. Any recovery must be reasonable and justified under the circumstances, liability ensuing only when the conduct is extreme. By extreme we refer to conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.") (internal citations omitted). In fact, the Alabama Supreme Court, in Potts v. Hayes, 771 So. 2d 462 (Ala. 2000) held that the tort of outrage was only recognized in three highly fact-specific situations: (1) wrongful conduct in the family-burial context; (2) barbaric methods employed to coerce an insurance settlement, and (3) egregious sexual harassment. Potts, 771 So. 2d at 465. And while the Alabama Supreme Court recently clarified that the tort of outrage may be viable in more than just these situations, the case in which the Court made such clarification involved facts that are both dissimilar to those at issue and objectively more egregious. See O'Rear v. B.H., 69 So. 3d 106 (Ala. 2011) (affirming a judgment on a tort-of-outrage claim asserted against a family physician who, when asked by a teenage boy's mother to counsel the boy concerning his stress over his parents' divorce, instead began exchanging addictive prescription drugs for homosexual sex for a number of years, resulting in the boy's drug addiction.).


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m. Officers Boackle, Cleveland, Dewitt, Doran and Prevo contend that

Plaintiff has not been damaged in the manner, or to the extent, he claims.

(d) Defenses of Defendant Officer Fortson

(i) Facts Relevant to the Defenses of Defendant Officer Fortson.

1. On January 23, 2008, Officer Fortson was conducting patrol in the

Fountain Heights and Druid Hill areas of Birmingham, Alabama.

2. During his patrol, Officer Fortson made a left onto 15th Avenue and

observed three individuals: Anthony Warren, who was standing next to his vehicle,

an individual known to Detective Fortson as "Poorbelly," and another individual

emerging from the space between Poorbelly's residence and an adjacent residence.

3. Officer Fortson approached the individual who had emerged from

between the two residences, asked him where he was coming from, whether he

lived in the area, and requested that he produce identification. The individual's

name was Michael Appeling.

4. While Officer Fortson was talking to Mr. Appeling, Warren

approached Officer Fortson's vehicle and inquired whether the house Fortson was

parked in front of was available for rent. Officer Fortson responded that he did not

know.


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5. Officer Fortson asked Mr. Appeling whether he had ever seen Warren

before. Mr. Appeling responded that he had lived his entire life in the Druid Hills

area and had never seen Warren.

6. Officer Fortson then observed Warren get in his vehicle and run a stop

sign at the intersection of 20th Street and 15th Avenue North.

7. Thereafter, Officer Fortson followed Warren and eventually pulled

behind him at a stop sign which led onto Shuttlesworth Drive. When Officer

Fortson pulled behind Warren, he observed that Warren was not wearing his seat

belt.

8. Officer Fortson then activated his vehicle lights. Warren pulled into

Triple T's (a/k/a Triple M’s).

9. Officer Fortson got out of his vehicle and requested that Warren

provide him with his driver's license, a request with which Warren complied.

10. Officer Fortson also asked Warren to remain still, a request with

which Warren did not comply.

11. Officer Fortson then asked Warren to sit down in the back of his

police car. Warren refused.

12. Warren then attempted to flee. Officer Fortson attempted to tase

Warren with his taser, but his taser did not deploy.


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13. When Warren realized that Officer Fortson's taser had malfunctioned,

he fled from the scene on foot.

14. Officer Fortson immediately radioed that a suspect was fleeing and

provided his location. Officer Fortson then pursued Warren on foot.

15. Warren doubled back to his vehicle, and Officer Fortson observed

Warren hastily getting into his vehicle and driving off. Officer Fortson radioed for

assistance.

16. Officer Fortson followed Warren in his vehicle and observed him run

stop signs and red lights throughout downtown Birmingham. He observed Warren

hit a school bus with his vehicle on Eighth Avenue North. Officer Fortson also

observed Warren take a left turn on 23rd Street, at which point he observed Warren

throw a white object out of his vehicle. Officer Fortson further observed that

Warren almost "t-boned" a vehicle that was attempting to get onto the interstate via

the entrance ramp and that Warren pushed another car out of the way while

proceeding up the entrance ramp and onto the interstate.

17. Once on the interstate, Officer Fortson observed that Warren

continued to drive erratically. Specifically, Officer Fortson observed that Warren

was swerving all over the road and was following very closely behind other cars on

the interstate in what Officer Fortson reasoned was Warren's attempt to involve

him in an accident and to elude capture.


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18. Warren continued to evade police as he proceeded down I-459.

19. Spike strips were deployed at the intersection of Highway 280 and I-

459. Detective Fortson's vehicle ran over the spike strips and, at that point, he no

longer was engaged in the pursuit of Warren.

20. Officer Fortson used no force against Warren and did not search or

seize him.

(ii) Defenses of Defendant Officer Fortson

a. Officer Fortson contends that he was entitled to conduct an initial stop

of Plaintiff's vehicle after he observed Plaintiff run a stop sign, observed that

Plaintiff was not wearing his seat belt, and observed what Officer Fortson

perceived as a drug transaction involving Warren.8

b. Officer Fortson contends that Plaintiff's claim for unlawful search and

seizure fails as a matter of law.

c. Additionally, Officer Fortson neither conducted a search of Plaintiff's

person or his vehicle, nor seized Plaintiff in any way, thus precluding any claim

that he was subjected to an unconstitutional search or seizure.

d. Officer Fortson contends that, to the extent Warren's claim for

initiation of a high speed pursuit is treated as a claim stating a violation of Warren's

8 See U.S. v. Harris, 526 F.3d 1334, 1337 (11th Cir. 2008) (holding that "a traffic stop is constitutional if it

is either based upon probable cause to believe a traffic violation has occurred…") (citing U.S. v. Chanthasouxat, 342 F.3d 1271, 1275 (11th Cir. 2003)).


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constitutional rights, that claim fails, there is no constitutional right to be free of

pursuit. Additionally, there are no facts demonstrating that Officer Fortson acted

unreasonably, or that he had the intent to harm Warren physically or to

detrimentally affect his legal position.9

e. To the extent that Warren's initiation of a high speed pursuit claim is

treated as a negligence claim under Alabama law, this claim fails, as the

undisputed evidence demonstrates that Plaintiff's conduct during the vehicular

pursuit constituted an intervening cause that broke the chain of proximate

causation, that Plaintiff assumed the risk of the injuries he sustained, and that

Plaintiff was contributorily negligent.10

f. Additionally, Officer Fortson denies that he was negligent in any

manner.

9 See County of Sacramento v. Lewis, 523 U.S. 833 (1998) ("We hold that high-speed chases with no intent

to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under § 1983"); accord Sanders v. City of Union Springs, 207 Fed. Appx. 960, 965 (11th Cir. 2006).

10 See General Motors Corp. v. Edwards, 482 So. 2d 1176, 1194–95 (Ala. 1985), overruled on other grounds, Schwartz v. Volvo North America Corp., 554 So. 2d 927 (Ala. 1989) (holding that an intervening cause may insulate a defendant from liability if (1) it occurred after the actions giving rise to the negligence claim against defendant; (2) is unforeseeable to the defendant at the time the defendant acts; and (3) is sufficient to be the sole proximate cause of plaintiff's injury); see also Richter v. Uhrig, 534 So. 2d 260, 262 (Ala. 1988) ("…if the intervening cause was alone sufficient to produce the injury complained of, it is deemed the proximate cause of the injury and the tort-feasor between whose act and the injury the cause intervened is relieved of liability"); see specifically Blair v. Rainbow City, 845 So. 2d 275, 276 (Ala. 1989) ("'[t]he rule governing the conduct of [a] police [officer] in pursuit of an escaping offender is that he must operate his car with due care and, in doing so, he is not responsible for the acts of the offender.'") (quoting Madison v. Weldon, 446 So. 2d 21, 28 (Ala. 1984)) (emphasis in original).


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g. Officer Fortson contends that Plaintiff has failed to state a claim

against him under the Fourth, Fifth and Fourteenth Amendments to the United

States Constitution.

h. Officer Fortson contends that Plaintiff has not been damaged or

injured in the manner, or to the extent, he claims.

6. Discovery and Other Pretrial Proceedings:

(a) Pretrial Discovery

Pursuant to previously entered orders of the Court, discovery is closed.

(b) Pending Motions.

There are no pending motions.

(c) Motions in Limine.

Motions in limine, including Daubert motions, must be filed at least twenty-

eight (28) days in advance of the scheduled trial date and shall be accompanied by

supporting memoranda, with pinpoint cites. Oppositions are due eleven (11)

calendar days thereafter. As to each matter counsel seeks to exclude, counsel shall

indicate whether the exclusion is “opposed” or “unopposed” by counsel for the

other side. Parties are encouraged to resolve evidentiary issues by stipulation

whenever possible.


25

7. The parties must provide to other parties and promptly file with the

Court the following information regarding the evidence that it may present at trial

other than solely for impeachment or rebuttal:

a. the name and, if not previously provided, the address and telephone

number of each witness, separately identifying those whom the party expects to

present and those whom the party may call if the need arises;

b. the designation by page and line number of those witnesses whose

prior testimony under oath is expected to be presented in some form other than by

live testimony and, if not taken stenographically, a transcript of the pertinent

portions of the testimony; and

c. an appropriate identification (including Bates number if applicable) of

each document or other exhibit, including summaries of other evidence, separately

identifying those which the party expects to offer and those which the party may

offer if the need arises.

Unless otherwise directed by the Court, these disclosures must be made at

least thirty (30) days before trial.

Within seven (7) calendar days after receipt of the items listed above, a

receiving party shall serve and promptly file a list disclosing (i) all objections,

together with the grounds therefor, to the use under Rule 32(a) of a deposition

designated by another party under the above subparagraph b; (ii) all objections,


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together with the grounds therefore, that may be made to the admissibility of

materials identified under the above subparagraph c; and (iii) any counter-

designations of those portions of depositions that a party wishes to reserve the right

to introduce, without regard to whether the opposing party already has designated

the same portions of testimony. Objections not so disclosed are waived unless

excused by the court for good cause, such as that the objecting party could not

determine the basis of the objection prior to trial.

Within seven (7) calendar days after the parties exchange and file the

objections noted in the preceding paragraph, they shall meet and consult in an

attempt to resolve the objections. If there are unresolved objections after the

parties consult, the parties shall, at least fourteen (14) calendar days before trial,

submit to the Court, in writing, any such unresolved objections thereto. A brief

argument may be submitted at that time, if necessary. The unresolved objections

and arguments (if any) must be e-mailed to chambers of the undersigned, and a

hard copy of any objected-to exhibits and/or objected-to proposed deposition

testimony must be delivered to chambers of the undersigned (via the clerk’s

office).

No exhibits will be admitted or be permitted to be shown to the jury unless

the party offering them has complied with the E-Government Act of 2002. This

means that the following must be redacted from any document a party seeks to


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introduce into evidence or to show to the jury: social security numbers (in their

entirety), dates of birth (other than the year), the names of persons known to be

minors (although their initials may remain unredacted), and financial account

numbers (other than the last four digits.

The Court will provide to counsel, at least twenty-one (21) days before trial,

anticipated jury instructions and an anticipated verdict form.

Oral arguments on any unresolved pretrial matters will be heard and a

preliminary charge conference will be held on September 8 and 9, 2014, at the

Hugo Black Courthouse, Birmingham, Alabama. If a party wishes to submit

additional or alternative jury charges or verdict form, that party shall, no later than

fourteen (14) days prior to the scheduled trial date, e-mail to the Court and

opposing counsel its proposed additional or alternative charges or verdict form,

together with a brief argument and pinpoint citation to authority.

8. Jury Trial

Any proposed voir dire is due at least ten (10) business days prior to the

scheduled trial date and must be e-mailed to chambers of the undersigned with a

copy to opposing counsel. The parties should indicate which questions (if any)

they want the Court to ask and which questions they propose to ask themselves.

9. Computation of Deadlines


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a. All deadlines shall be computed without regard to Fed. R. Civ. P. 6(a).

However, if a document is due on a day that is a weekend or a federal holiday, then

the deadline for filing such document shall be extended until the next business day

following the day on which the document would otherwise be due.

10. Chamber’s E-mail

a. All documents that are emailed to chambers must be in WordPerfect

(strongly preferred) or Word format and sent to:

[email protected].

11. Voir Dire

a. Maximum of 60 minutes per side.

12. Opening/Closing Statements.

a. Maximum of 60 minutes plus 30 minutes in the event either side

chooses to show a video of the incident per side on opening statements.

b. Maximum of 60 minutes plus 30 minutes in the event either side

chooses to show a video of the incident per side on closing arguments. The

plaintiff may reserve not more than half of his closing argument. However, if the

plaintiff intends to ask for a specific sum of money, he must do so before the

defendant makes its closing argument.

13. Trial Date

This case is set for trial by jury on September 22, 2014 through September

30, 2014, in Birmingham, Alabama, at the Hugo Black Federal Courthouse, and is


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anticipated to last seven (7) days (including jury selection, opening statements, all

evidence, a charge conference, closing arguments, and the court’s instructions to

the jury, but not including jury deliberations).

ORDERED this 28th day of May, 2014, that the above provisions be binding

on all parties unless modified by further order for good cause shown.

_________________________________ VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE


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