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2012 May-25 PM 01:31 U.S. DISTRICT COURT N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA EASTERN DIVISION J.B., a minor, by and through his mother, Stacy Brown,

) ) ) Plaintiff, ) ) v. ) CASE NO. 1:11-cv-1182-RBP ) SHERIFF LARRY AMERSON, et al., ) ) Defendants. ) DEFENDANTS’ MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT


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TABLE OF CONTENTS

INTRODUCTION .......................................................................................... 1 STATEMENT OF UNDISPUTED FACTS ................................................... 2  STANDARD OF REVIEW .......................................................................... 10  ARGUMENT ................................................................................................ 12  I.  AMERSON AND WARD ARE ENTITLED TO QUALIFIED IMMUNITY AS TO ALL OF THE CLAIMS ALLEGED AGAINST THEM. ....................................................................................................... 12  A. 

Amerson and Ward did not use excessive force against J.B. ....... 15

B. No “failure to intervene/failure to prevent” claim can be shown against Officer Ward. ............................................................................. 19  C.  Neither Amerson nor Ward violated J.B.’s Fourteenth Amendment right to “bodily integrity.”...................................................................... 20  D.  The concept of “deliberate indifference” is not applicable in this context. ................................................................................................... 21  E.  Even if there is a genuine issue of material fact as to whether J.B. suffered some violation of his rights, the Plaintiff cannot show that these violations were in contravention of clearly established law. ................. 22  CONCLUSION ............................................................................................. 23  CERTIFICATE OF SERVICE ..................................................................... 24 

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COME NOW the Defendants and submit this Memorandum Brief in Support of their contemporaneously filed Motion for Summary Judgment. INTRODUCTION This case concerns an alleged incident involving J.B., a minor enrolled in the Calhoun County Sheriff’s Department Suspended Student Program, and Defendants Sheriff Larry Amerson and Corrections Officer Wendell Ward. Pursuant to this Court’s Order, the parties filed a Joint Statement Regarding Pending Issues on December 12, 20111. The parties agreed that the remaining claims against Officer Ward are: 1) an excessive force violation of the Fourth Amendment; 2) a failure to intervene/failure to prevent a violation of plaintiff’s constitutional rights; and 3) a violation of J.B.’s Fourteenth Amendment right to “bodily integrity.” The parties agreed that the remaining claims against Sheriff Amerson are: 1) an excessive force violation of the Fourth Amendment; 2) violation of J.B.’s Fourteenth Amendment right to “bodily integrity”; and, 3) “deliberate indifference” to J.B.’s constitutional rights based on personal participation.

1

This Court dismissed the Juvenile Justice Act claim(s) on December 7, 2011. 1


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STATEMENT OF UNDISPUTED FACTS 1.

The essential facts in this case are captured on a videotape.

(Exhibit A, Video Clips of J.B. in Calhoun County Jail; Exhibit B, Enhanced video clips of J.B. in Calhoun County Jail.) 2.

The facts and circumstances captured on the videotape occurred

on February 4, 2011. (Exhibit C, Excerpts from the Deposition of J.B., “J.B. depo.,” p. 108:6.; Exhibit D, Deposition of Plaintiff, Stacy Brown, “Brown depo.,” p. 10:7). Sheriff Larry Amerson 3.

Sheriff Amerson is currently the duly-elected Sheriff of

Calhoun County, Alabama and has been the Sheriff of Calhoun County since 1995. (Exhibit E, Affidavit of Sheriff Larry Amerson ¶ 2). Throughout his law enforcement career, he has worked extensively to improve the lives of at-risk children and youth. (Id.) Officer Wendell Ward 4.

Wendell Ward is employed by the Sheriff of Calhoun County,

Alabama as a Corrections Officer and he served in this capacity at the time of the incident made the basis of the Plaintiff’s Amended Complaint. (Exhibit F, Affidavit of Officer Wendell Ward ¶ 2).

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The Suspended Student Program 5.

The program in which J.B. was involved is the Suspended

Student Program.

This program is not a “scared straight”2 program

commonly seen on daytime television. (Exhibit E, ¶ 8). 6.

The Suspended Student Program brought suspended students

from various Calhoun County schools, between the ages of 12 and 18, into the Jail to perform services, such as cleaning and yard work. (Id.) 7.

J.B. was involved in this program because he was suspended

from the Success Academy. (Id. at ¶ 9). The Success Academy is a program designed to keep juveniles from entering the Department of Youth Services. (Id.) 8.

Stacy Brown, the mother of J.B., completed and signed a

general release form placing him in the custody of Calhoun County Sheriff's Office for the purpose of performing community service. (Brown depo., 13:8). (See also, Exhibit H, Calhoun County Sheriff’s Office [“CCSO”] General Release Suspended Student Program; Exhibit I, CCSO General Release Form).

2

The Amended Complaint references a “scared straight” program, which is a pejorative label. (See Amended Complaint, ¶ 8). (See also, Exhibit G, Declaration of Gary W. Deland [incorporating Exhibit GG, Expert Report of Gary W. Deland]). 3


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J.B.’s role at the Calhoun County Jail 9.

When J.B. arrived at the jail, he was told by officers what was

expected of his behavior and what duties he would be performing. (J.B. Depo., p. 29:18). 10.

J.B. was provided with a jail uniform upon arrival and was told

that he would be cleaning portions of the jail. (Id. at p. 30:2, 6). 11.

Subsequently, he cleaned portions of the jail walls using small

toothbrushes. (Id. at p. 30:8-12). 12.

One other student was working at the Suspended Student

Program on February 4, 2011. (Id. at p. 32:7-13). J.B. becomes agitated and dangerous 13.

At some point following this cleaning, J.B.’s mood and

behavior began to worsen. Officer Jonathan Perry told J.B. to face the wall when he did not follow his orders. (Exhibit F, ¶ 3). 14.

Due to J.B.’s refusal to follow orders, Officer Perry went to

Wendell Ward for assistance. (Id.). Ward spoke with J.B., who responded to him by saying, “F--- you. I don’t have to listen to you, old man.” (Id.) Ward spoke with J.B. about his disrespectful behavior and walked away. (Id.).

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A number of correctional officers filed incident reports and

statements about the events that transpired following Ward’s interaction with J.B. and they paint a consistent portrait that J.B. was completely out of control on February 4, 2011.

(See Exhibit J, Alabama Uniform

Incident/Offense Report and Arrest Report; Exhibit K, Jasmine Caver Statement dated 3/5/12; Exhibit L, CCSO Jail – Incident Report by A. Johnsey dated 2/4/11; Exhibit M, CCSO Jail – Incident Report by Zavier Foster dated 2/4/11; Exhibit N, CCSO Jail – Incident Report by Zavier Foster dated 2/4/11; Exhibit O, Undated statement of Zavier Foster; Exhibit P, Undated statement of Eric Starr; Exhibit Q, Undated statement of Eric Starr; Exhibit R, Latonya Chames Statement dated 4/8/11; Exhibit S, CCSO Jail – Incident Report by Jonathan Perry dated 2/4/1; Exhibit T, CCSO Jail – Incident Report by T. Gresham dated 2/4/11; Exhibit U, CCSO Jail – Incident Report by L. Harrelson dated 2/4/11; Exhibit V, CCSO Jail – Incident Report by Cheryl Hulsey dated 2/4/11; Exhibit W, CCSO Jail – Incident Report by David Hunt dated 2/4/11; Exhibit X, CCSO Jail – Incident Report by A. Johnsey dated 2/4/11; Exhibit Y, CCSO Jail – Incident Report by A. Johnsey dated 2/4/11; Exhibit Z, CCSO Jail – Incident Report by A. Johnsey dated 2/4/11; Exhibit AA, CCSO Jail – Incident Report by Wendell Ward dated 2/4/11; Exhibit BB, Supplemental Incident Report of Wendell Ward to Initial Report dated 5


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2/4/11; Exhibit CC, Logan Harrelson Statement dated 5/13/11; Exhibit DD, Zavier Foster Statement dated 5/13/11). 16.

After the incident involving Ward, J.B. became more disruptive

and grabbed Officer Zavier Foster and hit Corporal Jonathon Perry on the arm. (Exhibits T and U.). While collecting trays Officer Foster noticed J.B. yelling at officers and acting aggressively. Officer Foster responded to the situation by stepping between the involved officers and J.B. (Exhibits M and N). J.B. used racial slurs and made numerous threats towards officers. J.B. was then handcuffed. (Id.). 17.

After being handcuffed, J.B. was escorted to the 32 hallway and

asked to sit on a bench. While on the bench he stood up and slipped his handcuffed arms from the back to the front. (Exhibits T and U). 18.

Officer Foster observed J.B. screaming obscenities and making

threatening gestures toward Jail Administrator Eric Starr. He also observed J.B. attempt to strike Starr in the head area. (Exhibits M, N and O). J.B. was assisted to the floor, then escorted to the fingerprint room and restrained on the restraint bench. (Id.) 19.

In the fingerprint room, J.B. was sitting on the restraint bench

handcuffed. (Exhibit Y). J.B. kicked the Drager machine and turned to kick Officer Hunt. Leg shackles were then applied to J.B.’s legs. (Id.) 6


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Sheriff Amerson becomes involved in trying to calm J.B. 20.

At approximately 1:45 p.m., Jail Administrator Eric Starr met

with Sheriff Amerson to notify him of the incidents with J.B. (Exhibits P and Q). 21.

Starr told Amerson that J.B. could not conform his conduct and

comply with orders from the corrections officers.

(Exhibit E, ¶ 11).

Amerson was told that J.B. refused to follow orders, cursed the officers with brutally vile language (such as “n---er,” “mother f---ers,” “f---,” “bitches”), was very emotional (flailing his arms around the officers), struck Officer Jonathan Perry, and pushed Jail Administrator Starr.

His conduct had

deteriorated to a point where he had to be loosely cuffed and shackled and placed on a bench in the intoxilizer room. Amerson was further informed that while J.B. was in the room, he attempted to knock the Drager machine from its table. (Id.). 22.

When Amerson came into the room, the Plaintiff was

emotionally out of control and cursing at the officer officers. J.B. was still restrained to the bench and was highly emotional. (Id. at ¶ 12). 23.

Amerson attempted to discuss the situation with J.B. but made

no progress. (Id.)

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The entire interaction between J.B. and Amerson is on a video

recording. (Id.). See also Exhibit A, Clip07_A.mp4, Clip07_B.mp4, Clip 8_A.mp4, Clip08_B.mp4, Clip 10_C.mp4). 25.

Amerson sat by J.B. with his legs crossed and would at times

pat J.B. on the back and attempt to calm him down. When Amerson noted that J.B.’s anger was directed at the officers in the room, Amerson asked them all to leave so he could discuss issues privately with J.B. (Id.) 26.

While Amerson was discussing J.B.’s behavior and the issues

that he had with Amerson’s staff, he heard the Plaintiff make a hocking noise as if he were going to spit on Amerson. (Exhibit E, ¶ 13). 27.

Between this noise, J.B.’s past behavior, and his emotional

state, Amerson believed that J.B. was going to spit on him. (Id.) 28.

Amerson immediately leaned J.B. back and placed his hand

over J.B.’s jaw and mouth and informed J.B. he would not be spit upon. (Id.) (See also, Exhibit A, Clip07_A.mp4, Clip07_B.mp4; Exhibit B, Sheriff.avi.). 29.

Amerson heard J.B. make a similar sound later during their

interaction, but he grabbed J.B. by the back of the uniform and straightened him up after he heard the sound for the second time. (Id.)

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After the incidents, Amerson continued to sit by him and

calmly tried to counsel him about his behavior and issues that he may have. (Id.). J.B. damages jail property and threatens additional officers 31.

When it became apparent that the Plaintiff would not contain

his emotions, Amerson uncuffed him and led him back out of the room. (Id. at 14). 32.

When J.B. opened the door, Amerson felt that he was

attempting to charge some officers who were out in the hall. (Id.) 33.

Amerson grabbed J.B. by his shirt, but J.B. slipped out of it and

pulled it off. There in the hall he cursed the officers and approached them in a hostile manner in an appearance to goad them to become physical with him. None of the officers touched J.B. during this incident. (Id.) 34.

This conduct continued until Amerson felt that J.B. needed to

be placed in another secure location for his and others’ safety. (Id. at ¶ 15). 35.

Officer Ward was not in the room when the incident between

J.B. and Amerson occurred. (Exhibit F, ¶ 5). J.B. admits that he could not recall whether Ward was in the room with him. (J.B. Depo., p. 96:22). Regardless, the entire incident is captured on video recording and clearly shows that Ward was not present. (Exhibit A). 9


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At this point, J.B. was placed in the “attorney room” where

inmates meet with counsel. Once in that room, the Plaintiff immediately grabbed a chair and began breaking the glass in the door. He toppled the chairs and table. Again, no officer became physical with him but merely removed all of the furniture from the room. Undaunted, the Plaintiff then ripped the wiring conduit and pulled the computer wiring from the walls. (Id.) (See also Exhibit A, Clip10_A.mp4, Clip10_B.mp4, Clip10_C.mp4, Clip10_E.mp4). 37.

It was after this conduct that Amerson decided that charges

needed to be brought against J.B. (Exhibit E, ¶ 16; Exhibit J). 38.

J.B. was taken to Coosa Valley Detention Facility. (J.B. Depo.,

p. 62:14) 39.

J.B. received no medical or psychological treatment as a result

of the incident made the basis of the Amended Complaint. (J.B. Depo., p. 103:9-104:9, 104:21-105:23). In fact, his grades have improved and this incident has had no negative effects on his life. (Id. At 51:15-18). STANDARD OF REVIEW Summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is appropriate when the pleadings, affidavits, and depositions demonstrate that there is no genuine issue as to any material 10


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fact. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). “Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed “to secure the just, speedy and inexpensive determination of every action.” Id. at 327. The importance of summary judgment was reinforced by the Supreme Court in Scott v. Harris, 550 U.S. 372 (2007). The Scott Court “emphasized” that the rule stating that the facts must be viewed in the light most favorable to the non-moving party applies “only if there is a ‘genuine’ dispute as to those facts.” 550 U.S. at 380 (emphasis added).

“Some metaphysical doubt” is not enough to

prevent summary judgment; rather “the requirement is that there be no genuine issue of material fact.”

Id. (emphasis in the original).

Furthermore, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id. (holding that plaintiff’s affidavit as to the nature of a car chase did not create a genuine issue of material fact when a video actually showing the chase existed).

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ARGUMENT I.

AMERSON AND WARD ARE ENTITLED TO QUALIFIED IMMUNITY AS TO ALL OF THE CLAIMS ALLEGED AGAINST THEM. In order to receive qualified immunity, an officer must first show that

he was acting within the scope of his discretionary authority. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). In this case, Sheriff Amerson and Officer Ward were indisputably acting within the scope of his authority as law enforcement personnel at all relevant times. Therefore, Plaintiff must show that J.B. suffered a violation of clearly established law. Id. An official’s conduct is entitled to a “presumption of legitimacy.” Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir.2003) (alterations omitted) (citing United States Dep't of State v. Ray, 502 U.S. 164, 179, 112 S. Ct. 541, 550, 116 L. Ed. 2d 526 (1991)). Thus, qualified immunity is “the rule, rather than the exception: ‘Because qualified immunity shields government actors in all but exceptional cases, courts should think long and hard before stripping defendants of immunity.’” GJR Investments, Inc. v. County of Escambia, 132 F.3d 1359, 1366 (11th Cir. 1998) (quoting Lassiter v. Alabama A & M Univ. Bd. of Trs., 28 F.3d 1146, 1149 (11th Cir.1994)). The doctrine recognizes that suits against officials such as Sheriff Amerson

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and Officer Ward carry very real costs for society as a whole, including as follows: the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible public officials, in the unflinching discharge of their duties. Id. (internal citations omitted). Therefore, in order to overcome the Defendants’ entitlement to qualified immunity, the Plaintiff must be able to establish not only that the law enforcement official acted wrongfully, but also be able to point the Court to law existing at the time of the alleged violation that provided “fair warning” that the conduct of the defendants was illegal. Willingham v. Loughnan, 321 F.3d 1299, 1301 (11th Cir. 2003). The contours of the law must be “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987); Lancaster v. Monroe County, 116 F.3d 1419, 1424 (11th Cir. 1998).

“In this circuit, the law can be ‘clearly

established’ for qualified immunity purposes only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state where the case arose.” Jenkins v. Talladega Bd. of Educ., 115 F.3d 821, 827 (11th Cir. 1997) (en banc) (citations omitted.) 13


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In Saucier v. Katz, the United States Supreme Court mandated that a two- step test be applied in all cases in which qualified immunity is raised, as follows: “the first inquiry must be whether a constitutional right would have been violated on the facts alleged; second, assuming the violation is established, the question whether the right was clearly established must be considered.” 533 U.S. 194, 200 (2001). However, in Pearson v. Callahan, the Supreme Court recognized that there are cases in which it is apparent that, whatever the exact contours of the constitutional right at issue, this right was obviously not clearly established at the time of the alleged violation. 555 U.S. 223, 129 S. Ct. 808, 816-821 (2009). Thus, although the Court has maintained the same basic standard for determining whether a defendant officer is entitled to qualified immunity, i.e., whether the plaintiff can show that the defendant officer committed a violation of a clearly established right, it no longer requires courts to use Saucier’s rigid two-step process in analyzing the issue. Id. Qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments,” and “protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Messerschmidt v. Millender, __ U.S.__, 132 S. Ct. 1235, 1244-45 (2012) (citing Ashcroft v. al-Kidd, 563 U.S. ––––, ––––, 131 S.Ct. 2074, 2085 (2011) (quoting Malley 14


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v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986))). “Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness' of the action, assessed in light of the legal rules that were ‘clearly established’ at the time it was taken. Id. (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)).

To be

considered “clearly established,” pre-existing law must provide “fair warning” to the defendants that their conduct was illegal. Id. “The relevant inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1282 (11th Cir. 2008) (citations omitted). A.

Amerson and Ward did not use excessive force against J.B. This is an unusual fact scenario in that J.B. was in a jail setting but

was neither a pre-trial detainee nor a convicted prisoner. However, the setting of this incident is relevant in that legitimate interests were present in maintaining order in a jail.

Claims that law enforcement officers used

excessive force in the course of an arrest, investigatory stop, or other seizure of a free citizen are most properly characterized as involving the protection of the Fourth Amendment. Vinyard v. Wilson, 311 F.3d 1340, 1348-49 (11th Cir. 2002)(citing a number of cases with factual situations wherein de 15


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minimus force was held not to be actionable). The Fourth Amendment prohibits unreasonable searches and seizures of both persons and property, which covers both false arrest/malicious prosecution cases as well as the use of force against a free person at liberty. Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1964 (1985); Graham v. Connor, 490 U.S. 386 (1989). The Supreme Court has also noted that “[n]ot every push or shove, even if it may seem unnecessary in [the] peace of a judge’s chambers, violates the Fourth Amendment.” Saucier v. Katz, 533 U.S. 194, 209 (2001). In Saucier, the Court held that “[p]ushes and shoves, like other police conduct, must be judged under the Fourth Amendment standard of reasonableness.” 533 U.S. at 209. The Court in Saucier held that officers who shoved an arrestee into a police van were not liable for excessive force under a Fourth Amendment theory. The force used cannot be so minimal that it is called “de minimus,” and therefore not actionable under § 1983. In Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003), the court noted that “the application of de minimus force, without more, will not support a claim for excessive force in violation of the Fourth Amendment.” The court held that the force used by a police officer in order to effect the arrest of a television cameraman who walked into the middle of an intersection while filming arrest protestors was 16


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de minimus force. The court cited Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000) in this regard. Id. at 1094. In Nolin, the plaintiff alleged that while he was engaged in horseplay, an officer saw what was going on, thought it was a fight, grabbed the plaintiff from behind by the shoulder and wrist, threw him against a van three or four feet away, kneed him in the back and pushed his head to the side of the van, searched his groin area in an uncomfortable manner, and handcuffed him.

The plaintiff contended he suffered bruising to his

forehead, chest, and wrist, although he admitted that the bruises disappeared quickly and he did not seek medical treatment. The court held that in an excessive force case, the qualified immunity defense precludes liability unless a reasonable officer in the position of the defendant would have concluded that the use of force was unlawful. Id. at 1255. In this case, the court held that the use of force was de minimus, and the qualified immunity defense thus defeated that plaintiff’s claim. Id. at 1258. The question for the courts when applying the Fourth Amendment’s “objective reasonableness” standard is simply “whether [the officer’s] actions were objectively reasonable.” Id. (alteration in original) (citing Scott, 127 S. Ct. at 1776). In determining the reasonableness of the manner in which a seizure is effected, the Court “must balance the nature and quality of 17


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the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Scott, 127 S. Ct. at 1778 (quoting United States v. Place, 462 U.S. 696, 703 (1983)). As the Supreme Court has instructed, “the reasonableness of the officer’s belief as to the appropriate level of force should be judged from [the] on-scene perspective.” Saucier v. Katz, 533 U.S. 194, 205 (2001). Simply put, this is a case involving the use of de minimus force. Whether or not this Court, in retrospect, deems the use of force by Sheriff Amerson as necessary, “[n]ot every push or shove, even if it may seem unnecessary in [the] peace of a judge’s chambers, violates the Fourth Amendment.” Saucier, 533 U.S. 194, 209. This is a case where Sheriff Amerson placed his hands around the chin and face of J.B. in a reasonable effort to prevent J.B. from spitting on him. After the force was used by Amerson, the Plaintiff suffered less injury than the ones described in Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000). Also, as in Nolin, J.B. did not seek medical treatment following this incident. Amerson’s belief that he would be spat upon is the on-scene perspective needed to view the reasonableness of the force. Any and all force used against J.B. captured on video clearly shows that is was enforced for the very purpose of preventing that act. Thus, the force, while de minimus, was also reasonable in light of 18


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the facts and circumstances surrounding J.B.’s general behavior as well as his specific behavior. As such, Amerson did not use excessive force against J.B. Generally, there must be physical contact before an excessive force claim will lie. A seizure triggering the Fourth Amendment occurs only when governmental actors have, by means of physical force or a show of authority, in some way restrained the liberty of a citizen. Graham v. Connor, 490 U.S. 386, 395, n.10 (1989). In this case, no facts support the conclusion that Officer Ward used any force against J.B. In a light most favorable to the Plaintiff, Ward spoke harshly to J.B. about his behavior. Because there is no evidence supporting any physical contact between Ward and J.B., the excessive force claim against Ward should not survive because there was no force used by Ward against J.B. B.

No “failure to intervene/failure to prevent” claim can be shown against Officer Ward. It is clearly established that a state actor may be liable for an

unreasonable seizure under the Fourth Amendment if he fails to intervene to prevent the unconstitutional use of excessive force by another official and that an officer who is present at the scene and who fails to take reasonable steps to protect the victim of another’s use of excessive force can be held

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liable under § 1983. Velazquez v. City of Hialeah, 484 F.3d 1340, 1342 (11th Cir. 2007). Ward was not physically present during the incident between Sheriff Amerson and J.B. He was not present at the scene of the incident and could not make any reasonable steps to prevent Amerson from touching J.B. (in an attempt to prevent J.B. from spitting on Amerson). J.B. testified that Officer Ward never struck him, grabbed him or touched him in any way. Therefore, there can be no “failure to intervene/failure to prevent” claim against Officer Ward and this claim should not survive summary judgment. C.

Neither Amerson nor Ward violated J.B.’s Fourteenth Amendment right to “bodily integrity.” The United States Supreme Court has recognized a liberty interest in

bodily integrity in only very limited circumstances involving such things as abortions, Roe v. Wade, 410 U.S. 113 (1973), end-of-life decisions, Cruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261 (1990), birth control decisions, Griswold v. Connecticut, 381 U.S. 479 (1965), and instances where individuals are subject to dangerous or invasive procedures where their personal liberty is being restrained, see, e.g., Rochin v. California, 342 U.S. 165 (1952)(determining that a detainee’s bodily integrity was violated when police ordered doctors to pump his stomach to obtain evidence of drugs); Screws v. United States, 325 U.S. 91 (1945)(holding that an 20


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individual’s bodily integrity was violated where a citizen was beaten to death while in police custody).

Thus, the alleged violation of J.B.’s

Fourteenth Amendment right to “bodily integrity” is inapplicable based on the undisputed facts. D.

The concept of “deliberate indifference” is not applicable in this context. In 1986, the Supreme Court decided Whitley v. Albers, 475 U.S. 312

(1986), an excessive force case by convicted prisoners against guards in a prison riot. Whitley explicitly addressed and rejected the application of the less stringent deliberate indifference standard, which is used in the context of inmate claims of insufficient medical care. The Court stated that, in excessive force situations, “a deliberate indifference standard does not adequately capture the importance of [competing] obligations, or convey the appropriate hesitancy to critique in hindsight decisions necessarily made in haste, under pressure, and frequently without the luxury of a second chance.” 475 U.S. 312, 319-320. It seems clear that based on the analysis of the Supreme Court in Whitley, discussed above, application of the deliberate indifference standard in a use-of-force situation is inappropriate in a correctional setting. It is hard to imagine a scenario, other than a completely arbitrary use of force, where the use of force in a correctional setting would not be considered exigent, and therefore subject to application 21


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of the intent-to-harm standard. As such, any claim predicated on “deliberate indifference” should not survive summary judgment because such claims are inapplicable to the context of these facts. E.

Even if there is a genuine issue of material fact as to whether J.B. suffered some violation of his rights, the Plaintiff cannot show that these violations were in contravention of clearly established law. The Plaintiff must show that clearly established law provided Sheriff

Amerson or Officer Ward with fair warning that their conduct was unlawful by either (1) pointing to a case with materially similar facts holding that the conduct engaged in was illegal; or (2) demonstrating that a pertinent federal statute or federal constitutional provision are specific enough to demonstrate conduct was illegal, even in the total absence of case law. Storck v. City of Coral Springs, 354 F.3d 1307, 1317 (11th Cir. 2003) (citations omitted). The Eleventh Circuit has identified the latter method as an “obvious clarity” case. Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002) (footnote omitted). In order to show that the conduct of the Defendants was unconstitutional with “obvious clarity,” “the unlawfulness must have been apparent.” Willingham v. Loughnan, 321 F.3d 1299, 1301 (11th Cir. 2003). “Unless a government agent’s act is so obviously wrong, in the light of pre-existing law, that only a plainly incompetent officer or one who was knowingly violating the law

22


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would have done such a thing, the government actor has immunity from suit.” Storck, 354 F.3d at 1318 (quoting 28 F.3d at 1149). The Plaintiff cannot meet her burden of presenting the Court with clearly established law on either prong. With respect to the excessive force claim, obvious clarity does not suffice on the facts stated or as a matter of law. The Supreme Court has noted that excessive force cases simply are not susceptible to bright line rules – “in the end we must still slosh our way through the factbound morass of ‘reasonableness.’” Scott, 127 S. Ct. at 1778. Based upon a diligent search, the undersigned was able to find no materially similar cases. Accordingly, even if the Plaintiff could establish a constitutional violation on the record before the Court, she cannot meet her burden of providing clearly established law. Amerson and Ward are therefore entitled to qualified immunity and judgment in his favor as a matter of law. CONCLUSION Wherefore, these premises considered, Sheriff Amerson and Officer Ward respectfully request that this Court grant them summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

23


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Respectfully submitted this 25th day of May, 2012. /s/C. Richard Hill, Jr. KENDRICK E. WEBB (WEB022) C. RICHARD HILL, JR. (HIL045) J. RANDALL McNEILL (MCN007) Attorneys for Amerson and Ward WEBB & ELEY, P.C. 7475 Halcyon Pointe Drive (36117) Post Office Box 240909 Montgomery, Alabama 36124 (334) 262-1850 T (334) 262-1772 F rhill@webbeley.com

CERTIFICATE OF SERVICE I hereby certify that on this the 25th day of May, 2012, I have electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will provide notice to the following CM/ECF participants: Anthony B. Bush, Esquire E. Peyton Faulk, Esquire 529 South Perry Street Suite 18 Montgomery, Alabama 36104 anthonybbush@yahoo.com pfaulk@jaylewislaw.com

s/C. Richard Hill, Jr. OF COUNSEL

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA

EXHIBIT “E”


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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

EASTERN DIVISION

J.B., a minor, by and through his mother, Stacy Brown,

) ) )

Plaintiff,

) )

v.

)

Civil Action No. 1:11-cv-Ol182-RBP

)

SHERIFF LARRY AMERSON, et aI., ) )

Defendants.

)

AFFIDA VIT OF LARRY AMERSON STATE OF ALABAMA

) )

COUNTY OF CALHOUN

)

BEFORE ME, the undersigned authority and notary public in and for said

county and state at large personally appeared Larry Amerson, who being known to me and being by me first duly sworn on oath disposes and says as follows: 1.

My name is Larry Amerson. I am over the age of nineteen and am

competent to execute this affidavit, which is based on my personal knowledge. I am currently the duly-elected Sheriff of Calhoun County, Alabama and have been the Sheriff of Calhoun County since 1995. Throughout my law enforcement career, I have worked extensively to improve the lives of at-risk children and youth.


I

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3.

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I have served as Chairman of the Board of Family Links since 2001.

The organization was created in Calhoun County for the purpose of intervening in the lives of children to prevent school violence after meetings of leaders from all levels of education,

business, social

services,

law enforcement, parents,

prosecutors and the community at large met for six months seeking ways to reduce of prevent youth violence. The Linc Program became Family Links three years ago.

The research revealed that the best way to prevent at risk children from

becoming criminals is intervene in their lives prior to any criminal offenses. Services include after-hours counselors on call for families that are participating in Family Links. Deputy Sheriffs respond to assist family members in times or crisis and coordinate with the counselors. Link ID is an organized group in public and private schools in the county where youth take a pledge to be drug and violence free. Participating students receive and ID card that can be used for discounts from local businesses. More than 2,000 students currently participate. 4.

I am currently serving my third term as President of the Board of the

Calhoun/Cleburne Children's Center.

I have been a board member since 1996.

The Children's Center works with local social service providers, counselors, Prosecutors to investigate complaints of physical and sexual violence against children. We average over 400 investigations per year.

2


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5.

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I have served as a board member of the Alabama Sheriffs' Youth

Ranches, which 1S a non-profit organization dedicated to the prevention of cruelty to children by providing a home, education, property and equipment for underprivileged children. 6.

I worked 18 months at the Coosa Valley Detention Center whi Ie in

college. I was hired as a child care supervisor and was promoted to Child Care Manager. I resigned that position to accept a position at the Sheriff's Office. 7. Crime

I am a long-standing member of the national organization, Fight Invest in Kids, an organization created to find better ways to fight crime

by investing in the lives of chi1dren. 8.

The program in which J.B. was involved is the Suspended Student

Program. The Suspended Student Program is not a "Scared Straight Program" that is typified on television. Essentially, it was a babysitting service where suspended students from various Calhoun County schools, between the ages of 12 and 18, come into the Jail to perform services. These services generally include cleaning and yard work-type activities. In a typical "Scared Straight Program," the program is designed to have inmates to interact with juveni les and scare them to become better citizens.

This program was not designed to have interaction with the

inmates. There may be some interaction between inmates and the juveniles within the Suspended Student Program, but the interaction 3

occurs

as

the

officers


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perfonn their nonnal course of duties with the accompaniment of the juveniles. 9.

J.B. was involved in this program because he was suspended fr0111 the

Success Academy.

The Success Academy is a last effort program to keep

juveniles from entering the Department of Youth Services. 10.

Neither J nor my staff was infonned of any emotional or mental

conditions that J.B. had. 11.

On February 4, 2011. I was infonned by Jail Administrator Eric Starr

that the Plaintiff, J.B., could not confonn his conduct and comply with orders from the corrections officers. The reports I received were that he was very disrespectful to the officers, refused to follow orders, cursed the officers with brutally vile language (such as "n---er," "mother f---ers," "f---," "bitches"), was very emotional (flailing his arms around the officers), struck Officer Jonathan Perry, and pushed Jail Administrator Starr. His conduct had deteriorated to a point where he had to be loosely cuffed and shackled and placed on a bench in the intoxilizer room. I was further informed that while he was in the room, he attempted to knock the Drager machine from its table. 12.

When I came into the room, I found that the Plaintiff was emotionally

out of control and cursing at my officers. He was still restrained to the bench. He was so emotional that I could not understand his complaint. I knew that he was angry at the officers, but he never specified a reason, despite my attempts to 4


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discuss it with him. My entire interaction with him is on video recording. I sat by him with my legs crossed and would at times pat him on the back and attempt to calm him down. When I noted that his anger was directed at the officers in the room, I asked them all to leave so I could discuss his issues privately with him. 13.

While I was discussing his behavior and the issues that he had with

my staff, I heard the Plaintiff make a hocking noise as if he were going to spit on me. Between this noise, his past behavior, and his emotional state, I had no doubt in my mind that he was going to use his last weapon that he had, his head, and spit on me. I reacted quickly and leaned him back and placed my hand over his jaw and mouth and informed him in no uncertain terms that he would not spit on me. I have reviewed the video and am aware that when he made this hocking sound that his head was turned away from me. The fact that his head was turned is irrelevant because he could have easily quickly turned and slung his spit upon me. Additionally, I reacted as soon as I heard the sound. J heard him make a similar sound on one other occasion, but this time I simply grabbed him by the back of the uniform and straightened him up. After the incidents I still sat by him and calmly tried to counsel him about his behavior and issues that he may have. 14.

When it became apparent that the Plaintiff would not contain his

emotions, I uncuffed him and led him back out of the room. When he opened the door, I felt that he was attempting to charge some officers who were out in the hall. 5


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I grabbed him by his shirt, but he slipped out of it and pulled it off. There in the hall he cursed the officers and approached them in a hostile manner in an appearance to goad them to become physical with him. I am very proud of the officers that no one touched him. 15.

This conduct continued until I felt that he needed to be placed in

another secure location for his and others' safety.

We escorted him to the

"attorney room" where inmates meet with counsel. Once in that room, the Plaintiff immediately grabbed a chair and began breaking the glass in the door. He toppled the chairs and table.

Again, no officer became physical with him but merely

removed all of the furniture from the room. Undaunted, the Plaintiff them ripped the wiring conduit and pulled the computer wiring from the walls. All of this behavior was captured on video recording. 16.

It was after this conduct, I decided that charges needed to be brought

against the Plaintiff. He was charged with criminal mischief for tearing the room and harassment for attempting to spit on me. I initiated the charges because I was the only officer present that had arrest authority. The corrections officers do not. I instructed Lt. Starr to secure the video of both instances involving Plaintiff to provide to the District Attorney's Office. 17.

It must be noted that the Plaintiff did not complain as to any physical

injuries to me or to my staff after the incident. In fact, in his deposition, Plaintiff 6


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testified that he never had to receive any type of treatment for the incident with me. 18.

I deny the allegations made against me by the Plaintiff in this lavvsuit

as being untrue and completely without basis in law or fact.. I deny that I acted, or caused anyone to act. in such a manner as to deprive the Plaintiff of any right to which he was entitled. [had a reasonable belief that the Plaintiff was going to spit on me. I strongly believe that my conduct was reasonable and was in no \va) an excessive use of torce. 19.

My belief is further shown because it must be looked at in the totality

of all the conduct.

First, despite being viiely cursed. neither I nor any of my

officers physically reacted to the language. Second, when the Plaintiff destroyed the attorney room, no one reacted to his conduct and calmly just removed the furniture. Third, neither I nor any of my officers responded to any of the Plainti ff's physical threats. Fourth, the reason the Plaintitl was restrained was because he was physical and hit and pushed officers. Fifth, I placed my hands on the Plaintiff simply to ward off his attempt to spit on me. 20.

I certifY and state, as Sherin' of Calhoun County. that the documents

attached to Defendants' Motion for Summary Judgment and provided to this Court are true and correct copies of records kept at the Calhoun County SheritT's Otlice in the regular course of business

7


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21.

Filed 05/25/12 Page 9 of 9

I swear to the best of my present knowledge and information that the

above statements are true; that I am competent to make this at11davit; and that the above statements were made by drawing from my persona] knowledge of the situation.

SWORN TO and SUBSCRIBED before me this the _ _ day of May, 2012.

[SEAL]

NOTARY PUBLIC \ My Commission Expires:

9 J !! /

8

I

I

I路


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FILED

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Case 1:11-cv-01182-RBP-HGD Document 63-33

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Case 1:11-cv-01182-RBP-HGD Document 63-33

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Case 1:11-cv-01182-RBP-HGD Document 63-33

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Case 1:11-cv-01182-RBP-HGD Document 63-19

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


Case 1:11-cv-01182-RBP-HGD Document 63-19

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Case 1:11-cv-01182-RBP-HGD Document 63-19

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Case 1:11-cv-01182-RBP-HGD Document 63-18

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


Case 1:11-cv-01182-RBP-HGD Document 63-18

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Case 1:11-cv-01182-RBP-HGD Document 63-18

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Case 1:11-cv-01182-RBP-HGD Document 63-11

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


Case 1:11-cv-01182-RBP-HGD Document 63-11

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Case 1:11-cv-01182-RBP-HGD Document 63-22

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


Case 1:11-cv-01182-RBP-HGD Document 63-22

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Case 1:11-cv-01182-RBP-HGD Document 63-13

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


Case 1:11-cv-01182-RBP-HGD Document 63-13

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Case 1:11-cv-01182-RBP-HGD Document 63-14

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


Case 1:11-cv-01182-RBP-HGD Document 63-14

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Case 1:11-cv-01182-RBP-HGD Document 63-15

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


Case 1:11-cv-01182-RBP-HGD Document 63-15

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Case 1:11-cv-01182-RBP-HGD Document 63-15

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Case 1:11-cv-01182-RBP-HGD Document 63-15

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Case 1:11-cv-01182-RBP-HGD Document 63-29

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


Case 1:11-cv-01182-RBP-HGD Document 63-29

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Case 1:11-cv-01182-RBP-HGD Document 63-30

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


Case 1:11-cv-01182-RBP-HGD Document 63-30

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Case 1:11-cv-01182-RBP-HGD Document 63-30

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Case 1:11-cv-01182-RBP-HGD Document 63-12

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


Case 1:11-cv-01182-RBP-HGD Document 63-12

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Case 1:11-cv-01182-RBP-HGD Document 63-24

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


Case 1:11-cv-01182-RBP-HGD Document 63-24

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Case 1:11-cv-01182-RBP-HGD Document 63-25

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


Case 1:11-cv-01182-RBP-HGD Document 63-25

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Case 1:11-cv-01182-RBP-HGD Document 63-16

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


Case 1:11-cv-01182-RBP-HGD Document 63-16

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Case 1:11-cv-01182-RBP-HGD Document 63-17

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


Case 1:11-cv-01182-RBP-HGD Document 63-17

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Case 1:11-cv-01182-RBP-HGD Document 63-20

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


Case 1:11-cv-01182-RBP-HGD Document 63-20

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Case 1:11-cv-01182-RBP-HGD Document 63-20

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Case 1:11-cv-01182-RBP-HGD Document 63-21

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


Case 1:11-cv-01182-RBP-HGD Document 63-21

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Case 1:11-cv-01182-RBP-HGD Document 63-23

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


Case 1:11-cv-01182-RBP-HGD Document 63-23

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Case 1:11-cv-01182-RBP-HGD Document 63-31

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FILED 2012 May-25 PM 01:41 U.S. DISTRICT COURT N.D. OF ALABAMA


Case 1:11-cv-01182-RBP-HGD Document 63-31

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Case 1:11-cv-01182-RBP-HGD Document 63-31

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