Grider, et al v. City of Auburn, AL, et al

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 21, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-12099
Non-Argument Calendar
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D.C. Docket No. 3:07-cv-01031-MHT-WC
DANIEL JOSEPH GRIDER,
THE FOURTH QUARTER, INC.,
an Alabama corporation, d.b.a. The Skybar,
Plaintiffs,
PATRICK JAMES GRIDER,
Plaintiff-Appellant,
THE GRID, INC.,
an Alabama corporation, f.k.a. The Highlands,
d.b.a. Pulse, et al.,
Plaintiffs,
versus
CITY OF AUBURN, AL,
an Alabama Municipal corporation,
WILLIAM HAM, JR.,
JAMES TREY NEAL, III,
JASON CROOK,
CHRISTOPHER CARVER,
in their individual capacity only, et. al.,
Defendants-Appellees.

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________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(October 21, 2011)
Before TJOFLAT, CARNES and HULL, Circuit Judges.
PER CURIAM:
After a jury trial, Plaintiff Patrick Grider appeals the verdict and judgment
entered in favor of Defendant Officer Christopher Carver on Grider’s malicious
prosecution claims under 42 U.S.C. § 1983 and Alabama state law. Grider argues
that the district court erred in failing to give a requested jury instruction on the
burden of proof for these claims. We affirm.
I. BACKGROUND AND PROCEDURAL HISTORY
Since 2001, bars owned by Grider and his brother, including The Skybar
Café (“Skybar”), have been the subject of private complaints and warnings by the
City of Auburn Police Department (“APD”) for serving minors alcohol, fighting,
and serving alcoholic beverages after 2:00 a.m. on Sunday mornings. In 2007,
Grider sued the City of Auburn (the “City”) and ten City employees in federal1
Plaintiff Grider’s brother, Daniel Grider, and The Fourth Quarter – a company owned by1
the Griders – were also plaintiffs in the district court. However, Daniel Grider and The Fourth
Quarter were voluntarily dismissed as appellants in this second appeal. Patrick Grider remains
the sole appellant.
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district court under 42 U.S.C. § 1983 and Alabama state law. Grider alleged that
the City was enforcing its laws in a discriminatory manner in order to harass
Grider and put Skybar out of business and that several City employees, including
Officer Carver, maliciously prosecuted Grider for a fabricated charge of bribing a
public official. This is now the second appeal in this case.
A. First Appeal
In the first appeal, multiple defendants, including Officer Carver, appealed
the district court’s denial of qualified immunity and state-law immunity. We
affirmed the denial of immunity to Officer Carver on Grider’s malicious
prosecution claims under § 1983 and state law, but we reversed the denial of state-
law immunity to the other defendants on the remaining claims. See Grider v. City
of Auburn, 618 F.3d 1240, 1269 (11th Cir. 2010). We remanded for a trial on the
malicious prosecution claims against Officer Carver.2
B. Trial on the Malicious Prosecution Claims
Although we also rejected Officer Carver’s and Officer Jason Crook’s claims to2
immunity on Grider’s tortious interference claims under state law, the parties subsequently
agreed to dismiss the tortious interference claims. Thus, these claims are not before us in this
second appeal.
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Following remand, the district court conducted a jury trial on Plaintiff
Grider’s malicious prosecution claims against Officer Carver for charging Grider
with bribery of a public official.
At trial, Plaintiff Grider called Officer Carver as the first witness. Officer
Carver testified that, on September 29, 2005, he and his partner, Officer Jason
Crook, were assigned to foot patrol in downtown Auburn. Another officer
directed Officers Crook and Carver to investigate possible alcohol violations at
Skybar. Officers Crook and Carver proceeded to the back of Skybar, where they
saw people drinking but did not see any sales of alcoholic beverages.
According to Officer Carver, Grider confronted the officers and showed the
officers three $50 bills and told them that if they let Grider “slide there was a
dollar bill for each of [them].” Grider placed the money on the ground and walked
away. Officer Carver testified that he was “shocked” and immediately called his
supervisor to report the attempted bribery. Officer Carver’s supervisor told him to
collect the money, enter the money into evidence, and complete a report of the
incident. Officer Carver complied and did not arrest Grider that night.
The next day, Officer Carver signed an “Affidavit Charging Crime,”
charging that Grider attempted to bribe Carver with $150 in folded currency.
Carver’s affidavit also states that the bribery was attempted so Carver would not
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enforce “Auburn City ordinance 3-1(11), which The Sky Bar was in violation
because it was still open serving alcohol after 2am.” However, the arrest warrant,3
signed by the “Clerk, District/Circuit Court,” charged Grider with a violation of
Ala. Code § 13A-10-61 (the bribery statute), and mentions no underlying4
violation of a city alcohol ordinance. Officer Carver consistently testified that
Grider placed the three $50 bills on the ground as a bribe. As to Skybar’s serving
alcohol, Officer Carver acknowledged at trial that he had not seen anyone actually
served alcohol at Skybar that night; he merely saw people who already had drinks
in their hands. Officer Crook’s testimony largely confirmed Officer Carver’s.
For his part, Plaintiff Grider testified and denied ever offering the officers
money to bribe them not to enforce any law. Grider testified that, on the night of
the incident, Skybar was not admitting any new customers. Although a few people
remained at the bar, most of them were employees. Grider testified that Dale
Earnhardt, Jr., was in the bar that night and that he was “hanging out” with Mr.
Officer Carver’s affidavit, which was admitted into evidence without objection at the3
beginning of trial, incorrectly states that the events occurred on September 19, 2005, instead of
September 29, 2005.
Section 13A-10-61(a)(1) of the Alabama Code states a person commits bribery if “[h]e4
offers, confers or agrees to confer any thing of value upon a public servant with the intent that the
public servant’s vote, opinion, judgment, exercise of discretion or other action in his official
capacity will thereby be corruptly influenced . . . .” The arrest warrant appears on the same page,
but below Officer Carver’s affidavit.
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Earnhardt when an employee informed Grider that two police officers were in the
back alley. Grider walked outside behind the bar to talk to the officers. Grider
asked the officers whether everything was okay, and the officers responded that
the back door to the bar was ajar. Grider responded that he knew about the
problem and that no one had broken in.
Plaintiff Grider then said that Mr. Earnhardt was in the bar and that some
people might be drinking. Grider clarified that the bar was no longer serving
alcohol. Officer Carver then said either “You don’t know what’s about to happen
to you” or “You know what’s about to happen to you.” Grider responded that the
officers were welcome to go into the bar to check that no one was being served
alcohol. However, Grider asked the officers to wait to come in so “it wouldn’t be
insinuated that [Grider] . . . brought the police in.” Nevertheless, Grider told the
officers, “It would be great if you didn’t go in.” Grider then walked back into the
bar. Grider denied putting any money on the ground and denied promising the
officers anything. Grider first learned about the bribery accusation at the
preliminary hearing on the bribery charge.
During the defense case-in-chief, Officer Carver testified about what
happened at the preliminary hearing before the state magistrate judge on the
warrant for Grider’s arrest. Officer Carver’s understanding was that the state
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magistrate judge dismissed the charge for lack of probable cause because he and
Officer Crook “didn’t articulate observing a specific alcohol violation, meaning
[they] didn’t articulate it at the preliminary hearing that [they] saw somebody at
the Skybar sell, serve or provide alcohol, that there was no violation and,
therefore, no underlying offense for the bribery to have influenced.”
The magistrate judge’s written order – which was admitted at the beginning
of trial without objection – states: “There DOES NOT exist probable cause to
believe that [Grider] committed the offense as charged in the Complaint, and as5
such, the Complaint is DISMISSED, and [Grider] is DISCHARGED.”
Before resting, Officer Carver moved for admission into evidence of a
portion of the transcript from the preliminary hearing before the state magistrate
judge. According to the transcript, the state magistrate judge stated that there was
probable cause to believe that Grider bribed a police officer “to prevent an
investigation of an alcohol offense” but there was no probable cause to believe
that Grider bribed an officer “so he would not enforce an [alcohol] ordinance” as
there was no evidence Skybar was committing that alcohol violation that night.6
No “complaint” appears in the record. The state magistrate judge was apparently5
referring to Officer Carver’s affidavit, which prompted the issuance of a warrant for Grider’s
arrest.
The state magistrate judge’s full statement was as follows:6
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Grider objected to the admission of the transcript on several grounds, and
the district court sustained Grider’s objection and refused to admit the transcript.
The district court noted that the transcript was irrelevant because the jury “should
be assessing the issue of probable cause . . . not based on whether the State found
it or didn’t find it, but based on what the evidence showed in this trial.”
At the charge conference, Plaintiff Grider argued that the state magistrate
judge had dismissed the charge for lack of probable cause as to bribery and thus the
burden of proof shifted to Officer Carver to prove that he had probable cause to
charge Grider with bribery. Grider requested the following Alabama Pattern Jury
Instruction for both his state and federal malicious prosecution claims:
Where the Plaintiff is discharged by a Court of law for lack of
probable cause, such fact is prima facie evidence of lack of probable
cause for instituting the prosecution by the Defendant.
This presumption of the lack of probable cause places the burden
of proof on Defendant Carver to reasonably satisfy you from the
If the defendant was charged with bribing a police officer to prevent an investigation
of an alcohol offense, which they were certainly entitled to do, I think the issue of
probable cause would be met, but it doesn’t. The complaint states that [Grider] was
charged with bribing a public official so he would not enforce an [alcohol] ordinance
which there’s no evidence he was committing. So as the case is before this Court,
at this time, I don’t see where I have any choice but to say there’s no probable cause
to believe this offense, as described in the complaint, has been committed. And that
will be the Court’s ruling.
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evidence that he had probable cause for instituting the prosecution
against Mr. Grider.7
Declining to give the requested Alabama instruction as to the state-law
claim, the district court reasoned, inter alia, that the state magistrate judge never
reached “the issue of bribery.” The district court also found that the Alabama
instruction would not apply to the federal malicious prosecution claim for similar
reasons and for the additional reason that the court could find no similar instruction
requiring shifting the burden of proof under federal law. Grider objected that the
Alabama instruction should be given on both the federal and state malicious
prosecution claims and argued that Grider never stipulated as to “why probable
cause was determined not to exist.” The district court overruled the objections.
Accordingly, the district court instructed the jury without giving Plaintiff
Grider’s requested burden-shifting jury instruction. The district court instructed
the jury that Grider had the burden of proof on each element of his malicious
prosecution claims. Additionally, the court noted, “The fact that the state court
This instruction derives from Alabama Pattern Jury Instruction 24.21, which states:7
(Where the plaintiff was discharged by the committing magistrate) or (Where
[the] Grand Jury fails to indict after investigating the charge against the plaintiff),
such fact is prima facie evidence of a want of probable cause for instituting the
prosecution by the defendant.
This presumption of the want of probable cause places the burden of proof
on defendant to reasonably satisfy you from the evidence that defendant had probable
cause for instituting the prosecution against the plaintiff.
Ala. Pattern Jury Instructions Civil 24.21 (2d ed. 2010).
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may or may not have found probable cause is not determinative. You, the jury,
must independently decide that issue from the evidence presented in this case.”
The jury returned a verdict for Officer Carver and against Grider on both the
state and the federal malicious prosecution claims. The district court entered
judgment for Officer Carver in accordance with the jury’s verdict, and Grider
timely appealed.
II. DISCUSSION
On appeal, Plaintiff Grider argues that the district court erred in failing to
give the burden-shifting jury instruction because the instruction accurately stated
Alabama law on his state-law claim for malicious prosecution. Grider argues that
he suffered prejudice because the district court’s instructions placed the burden of
proof on the wrong party and, if properly instructed, the jury could have found
Officer Carver liable for malicious prosecution. Regarding the federal malicious
prosecution claim, Grider argues that this Court should adopt the Alabama burden-
shifting framework “as an accurate statement of federal common law.”8
“We review jury instructions de novo to determine whether they misstate the
law or mislead the jury to the prejudice of the party who objects to them.” United
On appeal, Grider also argues that the district court erred in finding that Grider waived a8
state-law conspiracy claim and by dismissing his § 1983 claim against the City of Auburn. We
conclude that these arguments wholly lack merit, and we decline to discuss them further.
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States v. Campa, 529 F.3d 980, 992 (11th Cir. 2008). However, “the standard is
deferential, [and] [a]s long as the instructions accurately reflect the law, the district
court is afforded wide discretion as to the style and wording employed in the
instructions.” Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1283 (11th
Cir. 2008) (citations and quotation marks omitted).
“We examine the challenged instructions as part of the entire charge, in view
of the allegations of the complaint, the evidence presented, and the arguments of
counsel, to determine whether the jury was misled and whether the jury understood
the issues.” Id. (alteration and quotation marks omitted). If the instructions, “taken
together, properly express the law applicable to the case, there is no error even
though an isolated clause may be inaccurate, ambiguous, incomplete or otherwise
subject to criticism.” Somer v. Johnson, 704 F.2d 1473, 1477-78 (11th Cir. 1983)
(quotation marks omitted). We reverse only if “left with a substantial and
ineradicable doubt as to whether the jury was properly guided in its deliberations.”
Id. at 1478 (quotation marks omitted).
After review of the record, we conclude that Grider has not shown reversible
error in the district court’s declining to give his particular requested burden-
shifting instruction. Although Grider’s requested instruction was an accurate
statement of Alabama law in the abstract, Grider failed to establish that the
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requested instruction was applicable to the factual circumstances of his case.
Although the district court did not admit the transcript for the jury to review, the
district court was entitled to consider the transcript in deciding the basis for the
state magistrate judge’s dismissal and thus how to charge the jury as to the burden
of proof.
The transcript showed that the state magistrate judge’s dismissal focused on
the lack of evidence that Grider actually violated the city alcohol ordinance and not
on whether Grider actually placed the $150 on the ground in an attempt to bribe
Officers Carver and Crook. In fact, the state magistrate judge stated that he
thought there was probable cause to believe that Grider bribed an officer “to
prevent an investigation of an alcohol offense.” Given the state magistrate judge’s
narrow reason for dismissing the complaint and its statement that there was
probable cause for the bribery (albeit for a different motive on Grider’s part), we
conclude that Grider did not sufficiently establish that the district court was
required to give Grider’s burden-shifting instruction on the malicious prosecution
claim under Alabama law. In other words, we cannot say the district court abused
its discretion in how it read the state magistrate judge’s ruling.
As to Plaintiff Grider’s argument that we should adopt the Alabama burden-
shifting framework as federal common law, we decline to address the issue
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because, as stated above, we conclude that the requested instruction was
inapplicable in light of the factual circumstances of this case. Grider had the
burden of proof on each element of his malicious prosecution claims, and the
district court correctly instructed the jury to determine the existence of probable
cause based on the trial evidence, which included the magistrate judge’s dismissal
order as well as testimony of all the witnesses to the alleged bribery. In fact, the
district court aided Grider’s case by sustaining his objection to the jury’s seeing the
transcript of the state magistrate judge’s explanation of the more complete basis for
the dismissal. The jury charge, as a whole, correctly framed the issue as a swearing
match between Grider and the police officers, and we find no reason to disturb the
jury’s verdict in this case.9
AFFIRMED.
Grider’s request for oral argument is DENIED.9
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