Greene v. City of Tuskegee Partial Dismissal Granted

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March 30, 2026 Get Citation Alerts Download PDF Add Note

Zavier Isiah Greene v. The City of Tuskegee, et al.

District Court, M.D. Alabama

• Citations: None known
• Docket Number: 3:25-cv-00432

• Precedential Status: Unknown Status

• Opinion

• Authorities (34)

• Cited By (0)

• Summaries (0)

• Similar Cases (9K)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
ZAVIER ISIAH GREENE, )
)
Plaintiff, )
)
v. ) CASE NO. 3:25-CV-432-RAH-SMD
)
THE CITY OF TUSKEGEE, et al., )
)
Defendants. )

MEMORANDUM OPINION AND ORDER
INTRODUCTION
Pending before the Court is Defendants’ Motion For Partial Dismissal Of
Plaintiff’s Amended Complaint By The City Of Tuskegee, Tuskegee Police
Department, Chief Loyd Jenkins, Sgt. B.J. McCullough, Sgt. Joshua Bonner, Officer
Brennan Echols, Officer Darius Jones, Officer Quincy Kitt, And Officer Sam White.
(Doc. 41.) Being fully briefed and thus ripe for decision, the motion is due to be
granted.
BACKGROUND
On the evening of June 12, 2021, Plaintiff Zavier Isiah Greene was visiting a
friend’s apartment on the 2900 block of Davidson Street in Tuskegee, Alabama
when a shootout occurred at the apartment complex that resulted in one death.
Several Tuskegee Police Department officers responded and investigated the
shooting. As part of their investigation, the officers taped off the scene, collected
evidence, and interviewed potential witnesses, including Greene. They also carried
out two searches of the apartment that Greene was visiting and towed a car belonging
to Greene’s mother located in the apartment complex.
Later that morning, Greene was transported to the Tuskegee Police Station for
questioning. After initially denying any involvement in the shooting, Greene
eventually told officers that he may have moved a gun out of the way of children
after the shooting. He now claims this admission was a lie due to the pressure he felt
during the interrogation.
On June 15, 2021, Sgt. B.J. McCullough of the Tuskegee Police Department
obtained a warrant to arrest Greene for attempted murder and felony murder. Greene
was arrested and spent one month in the Macon County Jail before bonding out.
On February 11, 2022, Sgt. McCullough testified before a Macon County
grand jury which later returned an indictment against Greene for attempted murder
and felony murder. Greene turned himself in and eventually bonded out on March
5, 2022. Over a year later, on May 12, 2023, the State dismissed the criminal charges
against Greene.
Greene brought this civil lawsuit on May 11, 2025, asserting claims against
the City of Tuskegee, the Tuskegee Police Department and several of its police
officers, and multiple fictious parties relating to the investigation and Greene’s arrest
and prosecution. The Complaint was subsequently amended on December 15, 2025,
thereby making the Amended Complaint the operative pleading. That pleading is
now the basis of the pending motion for partial dismissal filed by the City of
Tuskegee, the Tuskegee Police Department, Chief Loyd Jenkins, Sgt. B.J.
McCullough, Sgt. Joshua Bonner, Officer Brennan Echols, Officer Darius Jones,
Officer Quincy Kitt, and Officer Sam White.
LEGAL STANDARD
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint
against the legal standard set forth in Rule 8: “a short plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Determining whether a complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679. The plausibility standard requires “more
than a sheer possibility that a defendant has acted unlawfully.” Id. at 678. Conclusory
allegations that are merely “conceivable” and fail to rise “above the speculative
level” are insufficient to meet the plausibility standard. Twombly, 550 U.S. at 555,
570. This pleading standard “does not require ‘detailed factual allegations,’ but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Indeed, “[a]
pleading that offers labels and conclusions or a formulaic recitation of the elements
of a cause of action will not do.” Id. (quotation omitted).
“To decide whether a complaint survives a motion to dismiss, [district courts]
use a two-step framework.” McCullough v. Finley, 907 F.3d 1324, 1333 (11th Cir.
2018). “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.” Randall v. Scott, 610 F.3d
701, 709–10 (11th Cir. 2010). “Second, only a complaint that states a plausible claim
for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679. Here, Greene “bear[s]
the burden of setting forth facts that entitle them to relief.” Worthy v. City of Phenix
City, 930 F.3d 1206, 1222 (11th Cir. 2019).
DISCUSSION
To begin, Greene concedes to the dismissal of all fictitious defendants and the
Tuskegee Police Department.1 Accordingly, those defendants will be dismissed. The
Court therefore will address the remaining issues raised in the motion.
A. Official Capacity Claims
Loyd Jenkins, B.J. McCullough, Joshua Bonner, Brennan Echols, Darius
Jones, Quincy Kitt, and Sam White (the Officer Defendants) move to dismiss all
official capacity claims against them because they are redundant of the claims
against the City of Tuskegee (City).
The Eleventh Circuit Court of Appeals has explained that a claim against a
municipal officer in their official capacity “generally represent[s] only another way
of pleading an action against an entity of which an officer is an agent.” Kentucky v.
Graham, 473 U.S. 159, 165 (1985) (quoting Monell v. New York City Dep’t of Soc.
Servs., 436 U.S. 658, 690 (1978)). “Because suits against a municipal officer sued
in his official capacity and direct suits against municipalities are functionally
equivalent, there no longer exists a need to bring official-capacity actions against
local government officials, because local government units can be sued directly
. . . .” Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991). Thus, where a
plaintiff sues both the municipal officers in their official capacity and the
municipality directly, the “official-capacity claims against municipal officers should
be dismissed, as keeping the claims against both the municipality and the officers
would be redundant.” Higdon v. Fulton County, 746 F. App’x 796, 799 (11th Cir.
2018).

1 Despite claiming that the Tuskegee Police Department is not a suable entity, defense counsel
filed an Answer on behalf of the “Tuskegee Police Department.” Greene does not call attention to
this inconsistency but instead concedes to the dismissal of the TDP.
Greene concedes he is suing the Officer Defendants in their official capacities
as well as the City of Tuskegee directly. This is “redundant and possibly confusing
to [a] jury.” Busby, 931 F.2d at 776. As such, the official capacity claims against the
Officer Defendants will be dismissed.
B. Claims Against the City
i. Federal Claims
Greene sues the City of Tuskegee in every count of the Amended Complaint,
claiming the City is responsible for the actions of its employees. The City moves to
dismiss these claims, arguing they fail to state a plausible claim under federal law.
Greene concedes the City cannot be held liable for the Officer Defendants’
actions under a theory of respondent-superior liability. Greene instead claims that he
has adequately pleaded a § 1983 claim under a theory of vicarious liability. These
claims are due to be dismissed.
“A municipality may be liable under § 1983 for the actions of its police
officers only if the municipality is ‘found to have itself caused the constitutional
violation at issue; it cannot be found liable on a vicarious liability theory.’” Ludaway
v. City of Jacksonville, 245 F. App’x 949, 951 (11th Cir. 2007) (quoting Skop v. City
of Atlanta, 485 F.3d 1130, 1145 (11th Cir. 2007)). A municipality may be found to
have caused a constitutional violation “only when the execution of the government’s
policy or custom . . . inflicts the injury.” City of Canton v. Harris, 489 U.S. 378, 385 (1989) (internal quotation marks omitted). Thus, “to impose § 1983 liability on a
municipality, a plaintiff must show: (1) that his constitutional rights were violated;
(2) that the municipality had a custom or policy that constituted deliberate
indifference to that constitutional right; and (3) that the policy or custom caused the
violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).
Here, while Greene alleges a constitutional violation, Greene has not alleged
that the City had a custom or policy evidencing a deliberate indifference to that right
or that a custom or policy caused the violation of the constitutional right. Instead,
Greene seeks to hold the City liable for the Officer Defendants’ actions solely
because the officers worked for the City. Section 1983 does not permit this theory
of liability. While Greene attempts to allege a custom or policy for the first time in
his response to the City’s motion to dismiss, “[a] plaintiff may not amend [his]
complaint through argument in [an opposition] brief.” Gilmour v. Gates, McDonald
& Co., 382 F.3d 1312, 1315 (11th Cir. 2004). Accordingly, Greene’s § 1983 claims
against the City are due to be dismissed.
ii. State Law Claims
Greene also sues the City for assault and battery (Counts IV and V), malicious
prosecution (Count VI), civil conspiracy (Count VII), and under Alabama Code §
11-47-190 (Count VIII). As to the first three claims, the City argues that it cannot,
as a matter of law, be held liable for the intentional torts of its employees. As to his
§ 11-47-190 claim, the City argues that Greene’s claim is time-barred and that he
has failed to timely comply with the statutory pre-suit notice requirements of
Alabama Code § 11-47-23 and § 11-47-192.
It is well settled that under Alabama law, “a municipality cannot be held liable
for the intentional torts of its employees.” Wheeler v. George, 39 So. 3d 1061, 1085 (Ala. 2009) (citing Cremeens v. City of Montgomery, 779 So. 2d 1190 (Ala. 2000)).
That is, a municipality is immune to intentional tort claims due to the application of
Alabama Code § 11-47-190.
Greene’s claims for assault and battery, malicious prosecution, and civil
conspiracy against the City are intentional torts, and therefore are due to be
dismissed. See Brown v. City of Huntsville, 608 F.3d 724, 744 (11th Cir. 2010)
(holding that the city was entitled to immunity for assault and battery claims
stemming from intentional, rather than negligent, careless, or unskillful use of force);
Franklin v. City of Huntsville, 670 So. 2d 848, 852 (Ala. 1995) (“an action will not
lie against a municipality for malicious prosecution because such an action requires
proof of malice, and § 11-47-190 [does not] provide[] for an action against a
municipality for . . . its agents[’] intentional torts. . . .” (internal quotation marks
omitted)); Aliant Bank v. Four Star Invs., Inc., 244 So. 3d 896, 927 (Ala. 2017)
(citing Grider v. Carver, 767 F. Supp. 2d 1246, 1251 (M.D. Ala. 2011)) (holding
that conspiracy “is an intentional tort” and thus municipalities are immune from
conspiracy suits).
That leaves Greene’s claims brought under Alabama Code § 11-47-190 in
Count VIII. While Alabama Code § 11-47-190 gives municipalities immunity for
intentional tort claims, that immunity does not apply to claims against municipalities
for the negligent, careless or unskilled actions of its employees. Ala. Code § 11-47 -
190; Ala. Mun. Ins. Corp. v. Allen, 164 So. 3d 568, 574 (Ala. 2014) (“The first
sentence of § 11-47-190 recognizes the principle that municipalities are generally
immune from suit . . . and then provides an exception for actions seeking damages
for the negligent acts of the agents or employees of municipalities . . . .” (quoting
Morrow v. Caldwell, 153 So. 3d 764, 771 (Ala. 2014)). The Alabama Supreme
Court has held that a claimant bringing a claim under Alabama Code § 11-47-190
must allege and prove that he has timely complied with the statutory pre-suit notice
requirements of Alabama Code § 11-47-23 and § 11-47-192, meaning a claimant
must plead his compliance with the pre-suit notice requirements in his complaint.
See McCarroll v. City of Bessemer, 289 So 731 (Ala. 1972). See also Shuler v. Bd.
Of Trustee of Univ. of Alabama, 480 F.Appx 540, 543 (11th Cir. 2012) (citing
McCarroll).
Greene makes no allegation in the Amended Complaint about whether he did
or did not comply with the pre-suit notice requirements. And he fails to address it
when raised by the City in its motion dismiss. Greene, having failed to allege or
even discuss his compliance with the claim-filing requirement, has failed to state a
claim against the City for negligence under Alabama Code § 11-47-190, and
therefore Count VIII against the City is due to be dismissed.
C. Fourth Amendment Claims
In Counts I and II, Greene alleges that he was wrongfully searched on June
12, 2021, wrongfully detained on June 13, 2021, wrongfully arrested on June 15,
2021, and wrongfully indicted, arrested and jailed between February 28 and March
5, 2022, in violation of his Fourth Amendment rights. The Officer Defendants move
to dismiss these claims as time barred, except to the extent that Greene is advancing
a Fourth Amendment malicious prosecution claim.
The statute of limitations for federal claims brought under § 1983 is the statute
generally applicable to personal-injury actions in the forum state. Owens v. Okure, 488 U.S. 235, 240–41 (1989). The applicable limitations period for personal-injury
actions in Alabama is two years, see Ala. Code § 6-2-38 (l), thereby making the
statute of limitations two years for claims brought under § 1983. See Gorman v.
Wood, 663 So. 2d 921, 922 (Ala. 1995) (“[T]he only statute of limitations applicable
to § 1983 claims in Alabama is the two-year statute of limitations in Ala. Code [] §
6-2-38(l).”); Holland v. Barton, 600 So. 2d 233, 234 (Ala. 1992) (“The statute of
limitations for an action under 42 U.S.C. § 1983 is two years.”). A cause of action
under § 1983 accrues when a plaintiff knows or should know that “(1) that they have
suffered the injury that forms the basis of their complaint and (2) who has inflicted
the injury.” Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003).
Here, Greene certainly was harmed and was aware of that harm, at the latest,
on March 5, 2022, when he was released on bond after having been arrested
following the grand jury indictment for murder. Except for his prosecution itself, all
of the other challenged actions occurred before then. See Johnson v. County of
Paulding, 780 F. App’x 796, 798–99 (11th Cir. 2019) (“Fourth Amendment false
arrest claims brought pursuant to § 1983 accrue when the claimant is detained
pursuant to a legal process, not later upon his release from custody”) (citing Wallace
v. Kato, 549 U.S. 384, 389–91 (2007)); Freeman v. Holyfield, 179 So. 3d 101, 105 (Ala. 2015) (“A claim of false imprisonment accrues on the date of arrest.”); Skinner,
116 So. 3d at 1154 (“A false-imprisonment claim accrues on the date of the arrest .
. . not at some later time when . . . the arrestee is acquitted of the underlying criminal
offense.”); Locker v. City of St. Florian, 989 So. 2d 546, 550 (Ala. Civ. App. 2008)
(“[Plaintiff] was entitled to maintain his . . . false-imprisonment claim[] on the date
of his . . . imprisonment.”). This means the last day Greene could have brought his
§ 1983 claims for alleged Fourth Amendment violations regarding a search and
seizure was March 5, 2024. Greene, however, filed this action on May 11, 2025, well
over a year past the expiration of the applicable statute of limitations. That the
murder charges against him were dismissed on May 12, 2023, is irrelevant when
cabined solely by the wrongful search and seizure claim. Greene’s Fourth
Amendment claims in Counts I and II (excluding the claim for malicious
prosecution) are due to be dismissed.2
D. Fifth Amendment Miranda Claim
In Count III, Greene alleges that the Officer Defendants violated his Fifth
Amendment rights by failing to advise him of his Miranda rights. According to
Greene, this failure ultimately led him to make an incriminating statement that was
later used to secure his initial arrest and subsequent indictment.

2 Count II is poorly drafted. The Officer Defendants characterize Count II as advancing both a
Fourth Amendment wrongful search and seizure claim and a Fourth Amendment malicious
prosecution claim. Greene does not challenge that assertion. As it concerns the malicious
prosecution aspect of Count II, Greene does not allege the lack of probable cause or malice, thereby
making the claim insufficiently pleaded. Instead, Greene characterizes the underlying conduct as
being based in negligence and carelessness. On its face, the claim should be dismissed but the
Officer Defendants have not requested it. The Court will deal with that issue via a separate order.
The Officer Defendants move to dismiss this claim, asserting that it fails to
state a claim upon which relief can be granted. The Officer Defendants are correct
on this point.
The failure to provide a Miranda warning does not confer a private right to
sue for that violation under § 1983. See Vega v. Tekoh, 597 U.S. 134, 152 (2022)
(finding that § 1983 does not confer a right to sue over an officer’s failure to advise
an individual of his Miranda rights “[b]ecause a violation of Miranda is not itself a
violation of the Fifth Amendment.”); Parris v. Taft, 630 F. App’x 895, 901 (11th
Cir. 2015); Jones v. Cannon, 174 F.3d 1271, 1291 (11th Cir. 1999). Thus, Greene
cannot pursue a § 1983 claim based on the allegation that his Miranda rights were
violated. Count III is due to be dismissed.
E. Assault and Battery Claim
Defendant Quincy Kitt moves to dismiss Greene’s state law assault and
battery claim (Count IV) against him on the basis that Greene has not pleaded a
plausible claim for assault and battery.
Under Alabama law, “[t]he plaintiff in an action alleging assault and battery
must prove ‘(1) that the defendant touched the plaintiff; (2) that the defendant
intended to touch the plaintiff; and (3) that the touching was conducted in a harmful
or offensive manner.’” Dolgencorp, LLC v. Spence, 224 So. 3d 173, 180 (Ala. 2016)
(quoting Harper v. Winston County, 892 So. 2d 346, 353 (Ala. 2004)).
The only allegation in the Amended Complaint against Kitt is that Kitt
convinced his brother, Terrell Allen, to lower a gun that Allen pointed at Greene and
that Kitt told Greene that he would see Greene later. Greene does not allege that Kitt
ever touched him or physically threatened him. Because Greene does not allege any
touching by Kitt, Greene fails to state a claim for assault and battery against Kitt.
See Allen v. Walker¸ 569 So. 2d 350, 351–52 (Ala. 1990) (“Words standing alone
cannot constitute an assault.”); Jones v. Saugahatchee Country Club, No. 3:23-cv-
34, 2025 WL 913454, at *16–17 (M.D. Ala. Feb. 19, 2025) (dismissing battery claim
where there was no accusation of harmful or offensive touching); Ex parte Atmore
Cmty. Hosp., 719 So. 2d 1190, 1195 (Ala. 1998) (same). Greene’s assault and battery
claim against Kitt is due to be dismissed.
CONCLUSION
Accordingly, it is ORDERED as follows:
(1) The Motion For Partial Dismissal Of Plaintiff’s Amended Complaint
By The City Of Tuskegee, Tuskegee Police Department, Chief Loyd Jenkins, Sgt. B.J.
McCullough, Sgt. Joshua Bonner, Officer Brennan Echols, Officer Darius Jones,
Officer Quincy Kitt, And Officer Sam White (doc. 41) is GRANTED;
(2) All fictitious party defendants and associated claims are DISMISSED;
(3) All official capacity claims against Defendants Loyd Jenkins, B.J.
McCullough, Joshua Bonner, Brennan Echols, Darius Jones, Quincy Kitt, and Sam
White are DISMISSED;
(4) All claims against the Tuskegee Police Department and the City of
Tuskegee are DISMISSED and therefore the Tuskegee Police Department and the
City of Tuskegee are TERMINATED as parties in this action;
(5) Count I is DISMISSED in its entirety;
(6) Count II (illegal search and seizure) is DISMISSED against all
Defendants, except for Investigator Cannon;
(7) Count III is DISMISSED in its entirety;
(8) Count IV against Quincy Kitt is DISMISSED.
(9) This case shall PROCEED on the following claims against the
following defendants:
(a) The Fourth Amendment illegal search and seizure claim in Count
II against Investigator Cannon (official and individual capacities);
(b) The Fourth Amendment malicious prosecution claim in Count II
against Investigator Cannon in his official and individual capacities, and
against Brennan Echols, Darius Jones, and Sam White in their individual
capacities only;
(c) The state law assault and battery claim in Count IV against
Terrell Allen;
(d) The state law assault and battery claim in Count V against B.J.
McCollough and Joshua Bonner in their individual capacities only;
(e) The state law malicious prosecution claim in Count VI3 against
Investigator Cannon in his official and individual capacities, and against
Quincy Kitt, Terrell Allen, Sam White, Joshua Bonner, B.J. McCullough,
Brennan Echols, Darius Jones, and Loyd Jenkins in their individual capacities
only;
(f) The state law civil conspiracy claim in Count VII against
Investigator Cannon in his official and individual capacities, and against
Quincey Kitt, B.J. McCollough, Johsua Bonner, Sam White, Darius Jones,
Brennan Echols, and Loyd Jenkins in their individual capacities only; and,
(g) The Alabama Code § 11-47-190 claim in Count VIII against
Investigator Cannon in his official and individual capacities, and against
Quincey Kitt, B.J. McCollough, Johsua Bonner, Sam White, Darius Jones,
Brennan Echols, and Loyd Jenkins in their individual capacities only.

3 Contrary to the Officer Defendants’ assertion, Count VI does not include a federal Fourth
Amendment malicious prosecution claim, and the Court will not interpret it as stating such. A
vague reference to federal law embedded within a count that is labeled as a state law claim and is
otherwise a pure state law claim does not make it a federal claim also.
DONE and ORDERED on this the 30th day of March 2026.

R. MLL a JR.
CHIEF UNITED STATES DISTRICT JUDGE

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