Shaikh v. Hoyt

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ILYAS AHMED SHAIKH, 	)
Plaintiff, 	)
)
v. 	) 	CIVIL ACTION NO. 1:23-00196-KD-N
)
COUNTY OF MOBILE/MOBILE 	)
COUNTY COMMISSION(ERS), et al., 	)
Defendants. 	)
REPORT AND RECOMMENDATION
This civil action is before the Court on the motion to dismiss the first amended
complaint (Doc. 16) under Federal Rule of Civil Procedure 12(b)(6) (“failure to state a
claim upon which relief can be granted”) filed July 26, 2023 (Doc. 23), by Defendants
the City of Mobile and Thaddeus Hoyt, Jr., sued individually and in his official
capacity as a City of Mobile police officer.1 The assigned District Judge has referred
said motion to the undersigned Magistrate Judge for appropriate action under 28
U.S.C. § 636(a)-(b), Federal Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a).
See S.D. Ala. GenLR 72(b); (7/26/2023 electronic reference notation).
Plaintiff Ilyas Ahmed Shaikh filed a brief in response to the motion (Doc. 32).
Though given the opportunity (see Doc. 34), the City and Officer Hoyt did not file a
brief in reply to the response. The motion to dismiss is now under submission and
ripe for disposition.
1 Since the filing of the present motion, the Plaintiff has voluntarily dismissed his
claims against all other Defendants in this action. (See Docs. 35, 36, 37, 39).
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I. 	Legal Standards
In deciding a motion to dismiss under Rule 12(b)(6) for failure to state a claim
upon which relief can be granted, generally “the ‘scope of the review must be limited
to the four corners of the complaint.’ ” Speaker v. U.S. Dep't of Health & Hum. Servs.
Centers for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010)
(quoting St. George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir. 2002)). The Court
must “accept the allegations in the complaint as true and construe them in the light
most favorable to the plaintiff.” Duty Free Ams., Inc. v. Estee Lauder Companies, Inc.,
797 F.3d 1248, 1262 (11th Cir. 2015). “Generally, the existence of an affirmative
defense will not support a motion to dismiss. Nevertheless, a complaint may be
dismissed under Rule 12(b)(6) when its own allegations indicate the existence of an
affirmative defense, so long as the defense clearly appears on the face of the
complaint.” Quiller v. Barclays Am./Credit, Inc., 727 F.2d 1067, 1069 (11th Cir.
1984), on reh'g, 764 F.2d 1400 (11th Cir. 1985) (en banc) (per curiam) (affirming and
reinstating the panel opinion).
II. 	Analysis
a. Well-Pleaded Facts & the Claims Against the Movants
On or about April 29, 2021, Shaikh went to the Main Office of the Mobile
County License Commission located on Michael Boulevard in Mobile, Alabama. (Doc.
16 ¶ 9, PageID.185). Upon arriving, Shaikh was confronted by a security guard, and
a conversation and disagreement arose among the two and an unidentified employee
regarding the taking of a numbered service ticket. (Id. ¶¶ 10-11, PageID.185-186).
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Shaikh was never threatening or rude in speaking with the guard. (Id. ¶ 11,
PageID.186). Nevertheless, at some point the guard became frustrated with Shaikh
and physically removed him from the premises. (Id.). Shaikh was subsequently
arrested 	by 	Officer 	Hoyt 	for 	harassment, 	though 	the 	charge 	was 	ultimately
dismissed/nolle prossed by the City on October 3, 2022. (Id. ¶¶ 13-14).2
Based on these allegations, Shaikh asserts various claims against the City and
Officer Hoyt under both 42 U.S.C. § 1983 and state law.
b. Plaintiff’s Post-Motion Dismissal of Claims
In his response brief, Shaikh states that he “hereby voluntarily dismisses his
claims against Defendant City of Mobile…as made in Counts III-VII of his Amended
Complaint 	(Doc. 	16).” 	(Doc. 	32, 	PageID.290). 	He 	also 	states 	that 	he 	“hereby
voluntarily dismisses all claims against Defendant Thaddeus Hoyt, Jr…except for the
claims of False Arrest/Detention § 1983 (Count II) and False Arrest/Detention State
Law (Count VIII)[,]” and clarifies that those claims are “brought against Ofc. Hoyt in
his individual capacity.” (Id., PageID.290-291).
Federal Rule of Civil Procedure 41(a)(1) generally permits a plaintiff to
“dismiss an action without a court order by filing…a notice of dismissal before the
opposing party serves either an answer or a motion for summary judgment…” Fed.
R. Civ. P. 41(a)(1)(A)(i). Such “dismissal is effective immediately upon the filing of a
written notice of dismissal, and no subsequent court order is required.” Matthews v.
Gaither, 902 F.2d 877, 880 (11th Cir. 1990) (per curiam). That a plaintiff’s filing is
not expressly labeled a “notice of dismissal” does not prevent it from being treated as
2 Shaikh alleges that the confrontation between him and the security guard was “seen
clearly on video surveillance footage.” (Doc. 16 ¶ 12, PageID.186). In his response to
the present motion, Shaikh asserts that Officer Hoyt never reviewed the surveillance
footage before arresting him.
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such, so long as the plaintiff’s desire to dismiss is apparent and the conditions of Rule
41(a)(1)(A)(i) are satisfied. See id. (“The fact that a notice of dismissal is styled ‘motion
to dismiss’ rather than ‘notice of dismissal’ is without consequence.”).
In multidefendant cases, “Rule 41 allows a plaintiff to dismiss all of his claims
against a particular defendant[,]” Klay v. United Healthgroup, Inc., 376 F.3d 1092,
1106 (11th Cir. 2004); accord Amerisure Ins. Co. v. Auchter Co., 94 F.4th 1307, 1311
n.5 (11th Cir. 2024), and permits dismissal by notice “against such of the defendants
as have not served an answer or motion for summary judgment, despite the fact that
the case might remain pending against other defendants” who have. Plains Growers
By & Through Florists’ Mut. Ins. Co. v. Ickes-Braun Glasshouses, Inc., 474 F.2d 250,
255 (5th Cir. 1973).3 However, Rule 41 “does not permit plaintiffs to pick and choose,
dismissing only particular claims within an action. A plaintiff wishing to eliminate
particular claims or issues from the action should amend the complaint under Rule
15(a) rather than dismiss under Rule 41(a).” Klay, 376 F.3d at 1106 (quotation
omitted). Accord Perry v. Schumacher Grp. of La., 891 F.3d 954, 958 (11th Cir. 2018)
(“There is no mention in…Rule [41] of the option to stipulate dismissal of a portion of
a plaintiff's lawsuit—e.g., a particular claim—while leaving a different part of the
lawsuit pending before the trial court…There are multiple ways to dismiss a single
claim without dismissing an entire action. The easiest and most obvious is to seek
3 On “October 1, 1981 pursuant to the Fifth Circuit Court of Appeals Reorganization
Act of 1980, P.L. 96-452, 94 Stat. 1995, … the United States Court of Appeals for the
Fifth Circuit was divided into two circuits, the Eleventh and the ‘new Fifth.’ ” Bonner
v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). “The
Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit
rendered prior to October 1, 1981.” Smith v. Shook, 237 F.3d 1322, 1325 n.1 (11th Cir.
2001) (per curiam).
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and obtain leave to amend the complaint to eliminate the remaining claim, pursuant
to Rule 15.”).
While certain other defendants served answers (Docs. 6, 26, 27) prior to
Shaikh’s filing his response brief, the City never served an answer or a motion for
summary 	judgment 	directed 	at 	either 	Shaikh’s 	initial 	or 	amended 	complaint.
Accordingly, the undersigned will recommend that Shaikh’s response brief (Doc. 32)
be treated as a Rule 41(a)(1)(A)(i) notice of voluntary dismissal of all claims against
the City, effective upon its filing. Accordingly, the present motion to dismiss is due to
be found MOOT as to the claims against the City.
However, because Shaikh’s response proposes to dismiss fewer than all claims
against Officer Hoyt, those claims cannot be dismissed under Rule 41(a). The
undersigned will proceed to address the claims that Shaikh still wishes to pursue
against Officer Hoyt before addressing the claims he no longer does.
c. 	Count II—False Arrest/Detention under § 1983
Count 	II 	of 	the 	amended 	complaint 	alleges 	a 	§ 	1983 	claim 	for 	false
arrest/detention against Officer Hoyt, asserting that he detained and arrested Shaikh
“without even arguable probable cause as a result of the verbal exchange between
him and [the security guard].” (Doc. 16 ¶ 26, PageID.188). In the present motion,
Officer Hoyt argues that he is entitled to qualified immunity on this claim.
Qualified immunity protects police officers from suit in their individual
capacities for discretionary actions performed in the course of their
duties. Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172
L. Ed. 2d 565 (2009); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.
2727, 2738, 73 L. Ed. 2d 396 (1982). It serves the purpose of allowing
“government officials to carry out their discretionary duties without the
fear of personal liability or harassing litigation.” Durruthy v. Pastor, 351
F.3d 1080, 1087 (11th Cir. 2003) (citation omitted). Under qualified
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immunity, “all but the plainly incompetent or one who is knowingly
violating the federal law” are shielded from litigation. Lee v. Ferraro,
284 F.3d 1188, 1194 (11th Cir. 2002). Qualified immunity “does not offer
protection if an official knew or reasonably should have known that the
action he took within his sphere of official responsibility would violate
the constitutional rights of the [plaintiff].” Holmes v. Kucynda, 321 F.3d
1069, 1077 (11th Cir. 2003) (quoting Harlow, 457 U.S. at 815, 102 S. Ct.
at 2737 (internal quotation marks omitted) (alteration provided by
Holmes )).
Carter v. Butts Cnty., Ga., 821 F.3d 1310, 1318–19 (11th Cir. 2016).4
“To invoke qualified immunity, a public official must first demonstrate that he
was acting within the scope of his or her discretionary authority.” Hinson v. Bias, 927
F.3d 1103, 1116 (11th Cir. 2019). Accord, e.g., Piazza v. Jefferson Cnty., Alabama, 923
F.3d 947, 951 (11th Cir. 2019) (“An officer asserting a qualified-immunity defense
bears the initial burden of showing that he was ‘acting within his discretionary
authority.’ ” (quoting Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007));
Faile v. City of Leesburg, FL, No. 23-11465, 2024 WL 2148637, at *3 (11th Cir. May
14, 2024) (per curiam) (unpublished) (“A defendant who asserts qualified immunity
has the initial burden of showing he was acting within the scope of his discretionary
authority when he took the allegedly unconstitutional action.”) (reviewing denial of
Rule 	12(b)(6) 	motion 	to 	dismiss 	based 	on 	qualified 	immunity). 	“The 	term
‘discretionary authority’ covers ‘all actions of a governmental official that (1) were
4 “While the defense of qualified immunity is typically addressed at the summary
judgment stage of a case, it may be, as it [is here], raised and considered on a motion
to dismiss.” St. George, 285 F.3d at 1337. However, even when considering a qualified
immunity defense, the court must still look only to the “four corners of the complaint,”
must accept the factual allegations therein as true, and must draw all reasonable
inferences in the plaintiff’s favor. Id.
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undertaken pursuant to the performance of his duties, and (2) were within the scope
of his authority.’ ” Hinson, 927 F.3d at 1116 (quoting Jordan v. Doe, 38 F.3d 1559,
1566 (11th Cir. 1994) (internal quotation marks omitted)).
Instead of focusing on whether the acts in question involved the exercise
of actual discretion, we assess whether they are of a type that fell within
the employee's job responsibilities. Our inquiry is two-fold. We ask
whether the government employee was (a) performing a legitimate job-
related function (that is, pursuing a job-related goal), (b) through means
that were within his power to utilize.
Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004).
“In applying each prong of this test, we look to the general nature of the
defendant’s 	action, 	temporarily 	putting 	aside 	the 	fact 	that 	it 	may 	have 	been
committed for an unconstitutional purpose, in an unconstitutional manner, to an
unconstitutional extent, or under constitutionally inappropriate circumstances.” Id.
at 1266. “[T]o pass the first step of the discretionary function test for qualified
immunity, the defendant must have been performing a function that, but for the
alleged constitutional infirmity, would have fallen with his legitimate job description.”
Id. At the first step, “we consider a government official’s actions at the minimum level
of generality necessary to remove the constitutional taint.” Id. “In considering
whether an act of allegedly excessive force fell within a police officer's duties, for
example, we do not ask whether police have the right to use excessive force. We also
do not immediately jump to a high level of generality and ask whether police are
responsible for enforcing the law or promoting the public interest. We instead ask
whether they have the power to attempt to effectuate arrests.” Id. See also id. (“[I]n
assessing whether a police officer may assert qualified immunity against a Fourth
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Amendment 	claim, 	we 	do 	not 	ask 	whether 	he 	has 	the 	right 	to 	engage 	in
unconstitutional searches and seizures, but whether engaging in searches and
seizures in general is a part of his job-related powers and responsibilities.”).
“After determining that an official is engaged in a legitimate job-related
function, it is then necessary to turn to the second prong of the test and determine
whether he is executing that job-related function—that is, pursuing his job-related
goals—in an authorized manner. The primary purpose of the qualified immunity
doctrine is to allow government employees to enjoy a degree of protection only when
exercising powers that legitimately form a part of their jobs. Each government
employee is given only a certain ‘arsenal’ of powers with which to accomplish her
goals… Employment by a local, county, state, or federal government is not a carte
blanche invitation to push the envelope and tackle matters far beyond one's job
description or achieve one's official goals through unauthorized means. Pursuing a
job-related goal through means that fall outside the range of discretion that comes
with an employee's job is not protected by qualified immunity.” Id. at 1266–67
(citation omitted).
In claiming that he was acting within the scope of his discretionary authority,
Officer Hoyt asserts only that “Plaintiff’s Complaint makes clear that Officer Hoyt
was 	acting 	in 	his 	capacity 	as 	a 	police 	officer 	employed 	by 	the 	Mobile 	Police
Department when he arrested Plaintiff.” (Doc. 23, PageID.214). 5 Even if true,
5 In support of this assertion, Officer Hoyt cites to two cases, Wood v. Kessler, 323 F.
3d 872 (11th Cir. 2003), and Rachel v. City of Mobile, 112 F. Supp. 3d 1263 (S.D. Ala.
2015) (Steele, J.). While in both of those cases the court found that the defendant law
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however, that assertion only addresses the first prong of the discretionary-authority
analysis. And in his response, Shaikh argues that Officer Hoyt did not perform the
arrest “in an authorized manner.”
Alabama Code § 15-10-1 states that “[a]n arrest may be made, under a warrant
or without a warrant, … by any … policeman of any incorporated city or town within
the limits of the county.” Alabama Code § 15-10-3(a) sets out the “following instances
when “[a]n officer may arrest a person without a warrant[,]” as Officer Hoyt is alleged
to have done with Shaikh:
(1) If a public offense has been committed or a breach of the peace
threatened in the presence of the officer.
(2) When a felony has been committed, though not in the presence of the
officer, by the person arrested.
(3) When a felony has been committed and the officer has probable cause
to believe that the person arrested committed the felony.
(4) When the officer has probable cause to believe that the person
arrested has committed a felony, although it may afterwards appear
that a felony had not in fact been committed.
(5) When a charge has been made, upon probable cause, that the person
arrested has committed a felony.
(6) When the officer has actual knowledge that a warrant for the
person's arrest for the commission of a felony or misdemeanor has been
issued, provided the warrant was issued in accordance with this chapter.
However, upon request the officer shall show the warrant to the arrested
person as soon as possible. If the officer does not have the warrant in his
or her possession at the time of arrest the officer shall inform the
enforcement officers were acting within the scope of their discretionary authority
when making the challenged arrests, in neither case did the plaintiff appear to
materially dispute that issue. Thus, neither case engaged in a rigorous application of
the two-prong test for discretionary authority set out in Holloman.
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defendant of the offense charged and of the fact that a warrant has been
issued.
(7) When the officer has probable cause to believe that a felony or
misdemeanor has been committed by the person arrested in violation of
a protection order, including a domestic violence protection order or an
elder abuse protection order, issued by a court of competent jurisdiction.
(8) When an offense involves a crime of domestic violence, including
domestic violence in the first degree, pursuant to Section 13A-6-130,
domestic violence in the second degree, pursuant to Section 13A-6-131,
domestic violence in the third degree, pursuant to Section 13A-6-132,
interference with a domestic violence emergency call, in violation of
Section 13A-6-137, or domestic violence by strangulation or suffocation,
pursuant to Section 13A-6-138, or elder abuse as defined in Section 38-
9F-3, and the arrest is based on probable cause.
Shaikh argues that Officer Hoyt was not permitted to arrest him without a
warrant under any of the above scenarios. Certainly nothing in the first amended
complaint suggests that a warrantless arrest was permitted under §§ 15-10-3(a)(6)
through (8). Viewed in the light most favorable to Shaikh, the first amended
complaint’s allegations also do not indicate that any criminal conduct by Shaikh
occurred in Officer Hoyt’s presence, thus also making § 15-10-3(a)(1) inapplicable. As
for §§ 15-10-3(a)(2) through (5)—all of which require the commission of a felony, or at
least the belief that a felony has been committed—Shaikh argues that they are also
inapplicable because he was only arrested for, and ultimately only charged with,
harassment in violation of Alabama Code § 13A-11-8, a misdemeanor. See Telfare v.
City of Huntsville, 841 So. 2d 1222, 1229 (Ala. 2002) (“Generally, Alabama’s Rules of
Criminal Procedure and [§ 15-10-3(a)] do not allow law-enforcement officers the
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discretion to arrest alleged wrongdoers for misdemeanors not committed in the
presence of the arresting officer.”).6
Considering the foregoing, Shaikh has persuasively shown that Officer Hoyt
did not act “in an authorized manner” when he arrested Shaikh, and Officer Hoyt has
not attempted to rebut those arguments in a reply. Thus, the undersigned finds that,
at this stage of the case, Hoyt has failed to meet his burden of show that he was acting
within the scope of his discretionary authority during the events underlying Shaikh’s
§ 1983 claim, and is thus not entitled to Rule 12(b)(6) dismissal of that claim based
on qualified immunity.7
d. Count VIII—False Arrest/Detention under State Law
Count VIII of the amended complaint alleges a state-law claim for false
arrest/detention against Officer Hoyt, based on the same facts and circumstances as
his § 1983 claim. (Compare supra with Doc. 16 ¶ 51, PageID.193). Officer Hoyt argues
6 Under § 15-10-3(a)(4), a warrantless arrest can be made “[w]hen the officer has
probable cause to believe that the person arrested has committed a felony, although
it may afterwards appear that a felony had not in fact been committed.” Thus, the
mere fact that Shaikh was not ultimately charged with a felony would not render his
warrantless arrest infirm so long as Officer Hoyt had probable cause to believe that
Shaikh had committed a felony. However, the amended complaint clearly alleges that
Officer Hoyt also only “arrested” Shaikh “for harassment.” At this stage of the case,
the Court must accept that allegation as true and construe it in the light most
favorable to Shaikh, meaning that for present purposes the Court must accept as true
that Officer Hoyt only had probable cause at the time of the arrest to believe that
Shaikh had committed a misdemeanor at most.
7 In light of this finding, the undersigned declines to address Shaikh’s alternative
argument that the arrest clearly violated his rights under the First Amendment to
the United States Constitution.
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that this claim should be dismissed because he is due immunity under Alabama Code
§ 6-5-338(a), which provides as follows:
Every 	peace 	officer 	and 	tactical 	medic, 	except 	constables, 	who 	is
employed or appointed pursuant to the Constitution or statutes of this
state, whether appointed or employed as a peace officer or tactical medic
by the state or a county or municipality thereof, or by an agency or
institution, corporate or otherwise, created pursuant to the Constitution
or laws of this state and authorized by the Constitution or laws to
appoint or employ police officers or other peace officers or tactical medics,
and whose duties prescribed by law, or by the lawful terms of their
employment 	or 	appointment, 	include 	the 	enforcement 	of, 	or 	the
investigation and reporting of violations of, the criminal laws of this
state, and who is empowered by the laws of this state to execute
warrants, to arrest and to take into custody persons who violate, or who
are lawfully charged by warrant, indictment, or other lawful process,
with violations of, the criminal laws of this state, shall at all times be
deemed to be officers of this state, and as such shall have immunity from
tort liability arising out of his or her conduct in performance of any
discretionary function within the line and scope of his or her law
enforcement duties.
“[T]he restatement of state-agent immunity that the Alabama Supreme Court
set forth in Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), governs whether [peace]
officers are entitled to immunity under § 6-5-338(a).” King v. Pridmore, 961 F.3d 1135,
1147 (11th Cir. 2020) (citing Hunter v. Leeds, City of, 941 F.3d 1265, 1283 (11th Cir.
2019)).
The test laid out in Cranman, subsequently modified by Hollis v. City of
Brighton, 950 So. 2d 300 (Ala. 2006), provides in relevant part as follows:
A State agent shall be immune from civil liability in his or her
personal capacity when the conduct made the basis of the claim
against 	the 	agent 	is 	based 	upon 	the 	agent's 	...exercising
judgment in the enforcement of the criminal laws of the State,
including, but not limited to, law-enforcement officers’ arresting
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or attempting to arrest persons, or serving as peace officers
under 	circumstances 	entitling 	such 	officers 	to 	immunity
pursuant to § 6-5-338(a).
Hunter, 941 F.3d at 1283 (quoting Ex parte City of Homewood, 231 So.
3d 1082, 1087 (Ala. 2017) (quotation marks and citations omitted)). In
other words, law enforcement officers are generally immune from tort
liability for conduct that falls within the scope of their discretionary law
enforcement duties. Id. (citing Brown v. City of Huntsville, Ala., 608 F.3d
724, 741 (11th Cir. 2010)). However, there are exceptions to this general
rule. Specifically, “a state agent is not entitled to state-agent immunity
if (1) the U.S. Constitution, federal law, the state Constitution, or state
laws, rules, or regulations enacted or promulgated for the purpose of
regulating the activities of a governmental agency, require otherwise; or
(2) the agent acts ‘willfully, maliciously, fraudulently, in bad faith,
beyond his or her authority, or under a mistaken interpretation of the
law.’ ” Id. (citations omitted).
The test for discretionary function…immunity follows the same burden-
shifting analysis as the test for federal qualified immunity. Hunter, 941
F.3d at 1283. First, the officer asserting immunity has the burden to
show that the plaintiff's claims arise from a function that would entitle
the officer to immunity. Id. (citations omitted). The burden then shifts
to the plaintiff to show that one of the two aforementioned exceptions
applies. Id.
Id. Accord, e.g., Ex parte City of Homewood, 231 So. 3d 1082, 1087 (Ala. 2017) (“[F]or
[the defendant police officers] to demonstrate that they are entitled to immunity from
[the plaintiff]’s claims against them in their official and individual capacities, they
must establish (1) that they were peace officers (2) performing law-enforcement
duties at the time of the accident and (3) exercising judgment and discretion. If they
can do so, the burden then shifts to [the plaintiff] to show that one of the Cranman
exceptions applies. If [the plaintiff] does not satisfy this burden, then the officers are
entitled to immunity.”)
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“The Alabama Supreme Court has recognized that making arrests…generally
constitutes a discretionary function…” Lambert v. Herrington, No. 21-10452, 2022
WL 2345769, at *8 (11th Cir. June 29, 2022) (per curiam) (unpublished) (citing
Telfare, 841 So. 2d at 1228). Shaikh has argued that Officer Hoyt is not entitled to
discretionary-function immunity because an “arrest without even arguable probable
cause gives rise to an inference of malice.” (Doc. 32, PageID.300 (citing Alabama Tort
Law, 6th Ed., § 27.1(2) at 1837-1838 (“The element of malice may be inferred from
the lack of probable cause. In fact, a rebuttable factual presumption of malice will
rise from a lack of probable cause.”))).8 Shaikh is correct that the “arguable probable
cause” standard is used in determining whether Alabama discretionary immunity
applies for false-arrest claims. See Ex parte Harris, 216 So. 3d 1201, 1213 (Ala. 2016)
(‘In Borders v. City of Huntsville, 875 So.2d 1168 (Ala. 2003), this Court applied the
standard of ‘arguable probable cause; in determining whether a police officer was
immune from plaintiff's false-arrest claim pursuant to the immunity provided police
officers in § 6–5–338(a). Arguable probable cause exists ‘when an officer makes an
arrest lacking probable cause if officers of reasonable competence in the same
circumstances and with the same knowledge would disagree as to whether probable
8 The passage from Alabama Tort Law on which Shaikh relies in support of this
statement appears more relevant to proving one of the elements of an Alabama
malicious-prosecution claim, see Wal-Mart Stores, Inc. v. Goodman, 789 So. 2d 166,
180 (Ala. 2000) (“In a malicious-prosecution case, the jury may, from evidence
indicating a lack of probable cause, infer malice on the part of the defendant.
However, this inference of malice may be rebutted by evidence indicating the
defendant acted in good faith.” (citation omitted)); Hunter v. Mooring Tax Asset Grp.,
LLC, 53 So. 3d 879, 886 (Ala. 2009) (same), but Shaikh has indicated he no longer
wishes to pursue such claims.
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cause 	existed.’ 	Borders, 	875 	So.2d 	at 	1179.”). 	However, 	Shaikh’s 	conclusory
allegations that Officer Hoyt lacked even arguable probable cause to arrest him are
not, by themselves, sufficient to stave off the application of discretionary-function
immunity at the motion to dismiss stage. See Randall v. Scott, 610 F.3d 701, 709–10
(11th Cir. 2010) (“A district court considering a motion to dismiss shall begin by
identifying conclusory allegations that are not entitled to an assumption of truth—
legal conclusions must be supported by factual allegations.”); Ex parte Harris, 216 So.
3d at 1213 (“Whether a police officer possesses probable cause or arguable probable
cause to arrest an individual depends on the elements of the alleged offense and the
operative set of facts.” (citing Brown v. City of Huntsville, 608 F.3d 724, 735 (11th Cir.
2010)).
Nevertheless, the Court need not decide at this stage of the case whether
Officer Hoyt had even “arguable probable cause” to arrest Shaikh, as the reason
explained above for denying Officer Hoyt qualified immunity on Shaikh’s federal false
arrest/detention claim—that he did not effect a lawful arrest under § 15-10-3(a)—is
also sufficient grounds to deny him discretionary-function immunity at this stage on
Shaikh’s state-law false arrest/detention claim. See Telfare, 841 So. 2d at 1229 (“Here,
viewing the evidence in a light most favorable to Telfare as the nonmovant, we must
conclude that Officer McCarver arrested Telfare for various misdemeanors, none of
which was committed in Officer McCarver's presence. Because there is no evidence
in the record tending to show that Officer McCarver was pursuing a discretionary
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function, i.e., was effectuating a lawful arrest, the City has failed to demonstrate that
it is entitled to immunity.”).
For the foregoing reasons, the undersigned will recommend that Officer Hoyt’s
Rule 12(b)(6) motion to dismiss be DENIED as to Counts II and VIII of the first
amended complaint.
e. 	Amendment of the Complaint
As was previously explained, Shaikh cannot eliminate the rest of his claims
against Officer Hoyt from this action by seeking to voluntarily dismiss them under
Rule 41(a), but instead must do so by amending the complaint under Rule 15(a). Klay,
376 F.3d at 1106. “The court should freely give leave [to amend the pleadings] when
justice so requires[,]” Fed. R. Civ. P. 15(a)(2), and Officer Hoyt has not objected to
Shaikh’s efforts to eliminate the other claims against him to avoid dismissal under
Rule 12(b)(6). Accordingly, the undersigned will further recommend that Shaikh be
granted leave to file, by a set date, a second amended complaint dropping all but his
false arrest/detention claims against Officer Hoyt in his individual capacity.
The undersigned also recommends that the second amended complaint be
ordered to comply with the following additional directives:
1. 	Shaikh’s 	first 	amended 	complaint 	names 	as 	additional 	defendants
“Fictitious Parties A-Z who are persons or entities unknown as of the filing
of this Complaint who are responsible for the injuries to Plaintiff and who
will be added when ascertained…” (Doc. 16, PageID.183, 185). “As a general
matter, 	fictitious-party 	pleading 	is 	not 	permitted 	in 	federal 	court.”
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Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (per curiam).
The Eleventh Circuit Court of Appeals has “created a limited exception to
this rule when the plaintiff's description of the defendant is so specific as to
be ‘at the very worst, surplusage.’ ” Id. (quoting Dean v. Barber, 951 F.2d
1210, 1215-16 (11th Cir. 1992)). However, Shaikh’s descriptions of the
fictitious defendants in the first amended complaint fall well short of this
standard. Cf. id. (“In this case,…Richardson identified the defendant as
‘John Doe (Unknown Legal Name), Guard, Charlotte Correctional Institute’
in his complaint. Although he later referred to the ‘John Doe’ defendant as
‘a Mr. Mitchell’ in his letter to Matthew in January 2008, he did so only
after the district court had dismissed his claim. Thus, the description in
Richardson’s complaint was insufficient to identify the defendant among
the many guards employed at CCI, and the district court properly dismissed
this claim.”). Accordingly, Shaikh should also be ordered to eliminate the
fictitious defendants from his second amended complaint.
2. 	To promote clarity going forward, Shaikh should also delete all claims and
defendants that have been voluntarily dismissed under Rule 41(a).
III. 	Conclusion
In accordance with the foregoing analysis, the undersigned RECOMMENDS
as follows:
1. 	that Shaikh’s response brief (Doc. 32) be treated as a Rule 41(a)(1)(A)(i) notice
of voluntary dismissal of all claims against the City, effective upon its filing;
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2. 	that Shaikh be granted leave under Rule 15(a)(2) to file and serve, by a date
certain, a second amended complaint that drops all claims against Officer Hoyt
except the two false arrest/detention claims against Hoyt in his individual
capacity;
3. 	that the Court direct that the second amended complaint, if filed, must also
drop all fictitious defendants as parties, and drop all claims and parties that
have been voluntarily dismissed under Rule 41(a); and
4. 	that the present Rule 12(b)(6) motion (Doc. 23) be DENIED as to the false
arrest/detention claims against Officer Hoyt in Counts II and VIII of the first
amended complaint, and otherwise be found MOOT, but without prejudice
to Officer Hoyt’s ability to renew his Rule 12(b)(6) motion as the other counts
against him in the first amended complaint should Shaikh fail to timely or
properly file a second amended complaint in accordance with the foregoing.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the
manner provided by law. Any party who objects to this recommendation or anything
in it must, within 14 days of the date of service of this document, file specific written
objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b);
S.D. Ala. GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-
1, “[a] party failing to object to a magistrate judge's findings or recommendations
contained in a report and recommendation in accordance with the provisions of 28
U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order
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based on unobjected-to factual and legal conclusions if the party was informed of the
time period for objecting and the consequences on appeal for failing to object. In the
absence of a proper objection, however, the court may review on appeal for plain error
if necessary in the interests of justice.” 11th Cir. R. 3-1. In order to be specific, an
objection must identify the specific finding or recommendation to which objection is
made, state the basis for the objection, and specify the place in the Magistrate Judge’s
report and recommendation where the disputed determination is found. An objection
that merely incorporates by reference or refers to the briefing before the Magistrate
Judge is not specific.
DONE this the 5th day of June 2024.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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