Marcus Nathaniel Grissom v. The State of Alabama, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11781
Non-Argument Calendar
____________________
MARCUS NATHANIAL GRISSOM,
Plaintiff-Appellant,
versus
ALABAMA, STATE OF, THE,
THE HONORABLE JOANNE M. JANNIK,
Individually and in her Professional Capacity and Role,
HAYS WEBB,
ANNAH ROBERTS,
PAULA HEARING, et al.,
Defendants-Appellees,
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2 Opinion of the Court 21-11781
SAM BAXTER,
Tuscaloosa County ADA; Individually and in his
Professional Capacity and Role, et al.,
Defendants.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:19-cv-00987-GMB
____________________
Before L UCK , LAGOA , and B RASHER , Circuit Judges.
PER CURIAM:
Marcus Nathaniel Grissom appeals a magistrate judge’s dis-
missal of his
pro se amended complaint. He alleges that the defend-
ants, the State of Alabama and several of its officers, violated mul-
tiple federal statutes and the United States Constitution in a com-
plex and convoluted scheme that began with a 2018 traffic stop and
ended with an audit of his father’s tax return. After careful consid-
eration, we affirm.
I. BACKGROUND
Grissom’s complaint begins in 2018, when Michael Harris,
an Alabama State Trooper, pulled him over. At the time, Grissom
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21-11781 Opinion of the Court 3
was driving over the speed limit in an attempt to “get out from
behind” another vehicle that was being driven erratically. During
the stop, Harris “effectively” told Grissom that “[i]f you’d have just
admitted to it, it’d have been ok.” And although Harris told Gris-
som that he was recording the interaction, no audio was ever cap-
tured, only dashcam video.
Harris cited Grissom for reckless driving, and Grissom con-
tested the charge. As part of those proceedings, he contacted Assis-
tant District Attorney Hunter Brown, the prosecutor, to discuss his
case and report alleged misconduct by Harris. At trial, Harris prof-
fered video of the traffic stop that bore an incorrect date caption
and allegedly lied multiple times. Grissom was convicted of reck-
less driving and appealed, but the state circuit court “finally
dropped” the case after several months.
Once Grissom’s state court proceeding was finished, his fa-
ther contacted the District Attorney’s Office to report prosecutorial
misconduct. Paula Hearing, a supervisory prosecutor in the office,
investigated the allegation and concluded that no such misconduct
occurred. Five days after Hearing’s reply, Grissom was pulled over
again, this time by Alabama State Trooper Isaac Duke, for driving
sixty miles-per-hour in the leftmost lane of a sixty-five mile-per-
hour zone. Duke asked Grissom about the reason for the traffic
stop, and the latter responded. Grissom’s response upset Duke,
who then stated that “[w]e were working on a warning but you
just changed that,” before issuing Grissom a citation for impeding
the flow of traffic “because of . . . [his] attitude[.]”
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4 Opinion of the Court 21-11781
Grissom again challenged his citation, this time in a trial be-
fore Judge Joanne Jannik and prosecuted by Assistant District At-
torney Samantha Baxter-Krebs. Judge Jannik allegedly refused to
allow Grissom to record the trial, prohibited him from cross-exam-
ining Duke on certain subjects, and spoke on Duke’s behalf about
the applicable law. During the trial, Duke allegedly admitted that
he ticketed Grissom because of his attitude. Grissom was convicted
again and appealed again, this time eventually winning a dismissal.
Around the time of his second trial, Annah Roberts, a tax
auditor with the Alabama Department of Revenue, contacted Gris-
som’s father about an audit of his state tax returns. After email ex-
changes during which Grissom’s father asked to record their tax
audit meeting, Roberts explained that the audit letter was sent in
error, that Grissom’s father should disregard it, and that she would
follow up to schedule a date and time for a recorded audit meeting.
Based on the events above, Grissom filed a federal lawsuit
alleging that the State of Alabama, Jannik, Hearing, Baxter-Krebs,
Brown, Duke, Harris, and Roberts had violated his constitutional
rights. He also named District Attorney Hays Webb as an addi-
tional defendant. Grissom claimed that the defendants had violated
his First, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth
Amendment rights, as well as six federal criminal statutes. The de-
fendants moved to dismiss, and all parties consented to disposition
by a magistrate judge under 28 U.S.C. § 636(c)(1). The magistrate
judge granted the defendants’ motions and dismissed Grissom’s
claims with prejudice, after which he timely appealed.
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II. DISCUSSION
As an initial matter, Grissom has abandoned several of his
constitutional claims. By failing to discuss his Fourth, Sixth, Eighth,
and Ninth Amendment claims in his opening brief, Grissom has
abandoned them on appeal.
Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680–82 (11th Cir. 2014);
Timson v. Sampson, 518 F.3d
870, 874 (11th Cir. 2008) (“[W]e do not address arguments raised
for the first time in a pro se litigant's reply brief.”).
Grissom’s remaining claims, though properly preserved, fair
no better. First, Grissom’s claims against Alabama, Judge Jannik,
Assistant District Attorneys Baxter-Krebs, Brown, and Hearing,
and District Attorney Hays Webb all fail because each of those de-
fendants is immune from suit. The State of Alabama is entitled to
sovereign immunity against lawsuits from its citizens, and the state
has not waived its immunity here. U.S. C ONST. AMEND. XI;
see also
Manders v. Lee, 338 F.3d 1304, 1308 n.8 (11th Cir. 2003) (en banc);
Alabama v. Pugh, 438 U.S. 781, 782 (1978). Judge Jannik is entitled
to judicial immunity because all of Grissom’s allegations against
her relate to quintessential judicial functions undertaken in her of-
ficial capacity: conducting trials, maintaining order in the court-
room, and interpreting the law.
Sibley v. Lando, 437 F.3d 1067,
1070 (11th Cir. 2005) (“Whether a judge's actions were made while
acting in his judicial capacity depends on whether: (1) the act com-
plained of constituted a normal judicial function; (2) the events oc-
curred in the judge's chambers or in open court; (3) the controversy
involved a case pending before the judge; and (4) the confrontation
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6 Opinion of the Court 21-11781
arose immediately out of a visit to the judge in his judicial capac-
ity.”);
see also Marbury v. Madison, 5 U.S. 137, 177 (1803) (“It is
emphatically the province and duty of the judicial department to
say what the law is.”). Finally, the various defendants at the District
Attorney’s Office all enjoy prosecutorial immunity because Gris-
som’s claims against them arose out of their official actions and ac-
tivities taken while advocating for the government.
Rowe v. City
of Fort Lauderdale, 279 F.3d 1271, 1279 (11th Cir. 2002). Baxter-
Krebs and Brown directly prosecuted Grissom on behalf of the
state and Hearing and Webb supervised those efforts. These func-
tions are “intimately associated with the judicial phase of the crim-
inal process” so as to implicate prosecutorial immunity.
Imbler v.
Pachtman, 424 U.S. 409, 430 (1976).
Second, none of Grissom’s claims under federal criminal
statutes, including all of his claims against Roberts, support a pri-
vate right of action. Thus, he has failed to state a claim for which
relief could be granted based on those statutes.
See Donald Freder-
ick Evans & Assocs., Inc. v. Continental Homes, Inc., 785 F.2d 897,
912–913;
see also Shotz v. City of Plantation, Fla., 344 F.3d 1161,
1167 n.7 (11th Cir. 2003) (stating that “language customarily found
in criminal statutes . . . is usually not sufficient to confer a federal
right”).
Third, Grissom’s First and Fifth Amendment claims against
Duke and Harris fail. As to Duke, Grissom failed to plead the lack
of probable cause for his traffic stop and citation, which serves as
an absolute bar to any false or retaliatory arrest challenges.
Brown
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21-11781 Opinion of the Court 7
v. City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010);
Nieves v.
Bartlett, 587 U.S. ___, 139 S. Ct. 1715, 1723–24 (2019). Instead, the
amended complaint concedes that Grissom was driving below the
speed limit in the leftmost lane at the time of the stop, which sup-
plied a basis for probable cause for his impeding the flow of traffic
citation.
See ALA . CODE . § 32-5A-80(b). That concession is fatal. As
to Harris, Grissom never alleged that Harris pulled him over, or
issued him a citation, because of anything he said in particular.
Bai-
ley v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016). Thus, he has not
pleaded that he engaged in protected speech causally connected to
Harris’s actions.
Id. Nor has he alleged that his statements were
used against him at trial.
Chavez v. Martinez, 538 U.S. 760, 770
(2003). Instead, the complaint only alleged that no audio of his in-
teractions with Harris, which would have captured the trooper’s
statements, was available. Even interpreted liberally and in Gris-
som’s favor, these allegations do not make out a plausible claim
under either the First or Fifth Amendment.
Snow v. DirecTV, Inc.,
450 F.3d 1314, 1320 (11th Cir. 2006).
III. CONCLUSION
For the foregoing reasons, the magistrate judge’s order dis-
missing Grissom’s claims is AFFIRMED.
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