United States District Court, S.D. Alabama, Southern Division
KRISTI K. DuBOSE, District Judge.
This matter is before the Court on Defendants' Motion for Summary Judgment (Docs. 30-33, 35), Plaintiff's opposition (Docs. 39-40) and Defendants' reply (Doc. 45); and Defendants' motions to strike (Docs. 43, 44) and Plaintiff's opposition (Doc. 47).
This case concerns Plaintiff Berndetta Howard ("Howard") and her son Brandon Robinson ("Robinson"), and the events surrounding his 2012 arrest in Greensboro, Alabama, which resulted in Howard's arrest for disorderly conduct and resisting arrest.
On May 7, 2012, Greensboro Officer Eugene Lyles ("Lyles") came to Howard's place of business and informed her that she and her son Robinson needed to appear at city hall due to a complaint about Robinson having discharged a firearm within the city limits on May 6, 2012. (Doc. 31-1 (Arrest Report); Doc. 31-2 (Aff. Hudson); Doc. 31-3 (Aff. Hamilton); Doc. 31-4 (Aff. Lyles); Doc. 40-1 (Decltn. Howard)). Howard and Robinson arrived at city hall and were met by Officer Lyles who read Robinson his Miranda rights; Robinson admitted to discharging a firearm without a permit in the city limits. (Id.) Shortly thereafter, Chief Willie Hudson ("Chief Hudson) and Assistant Chief Michael Hamilton ("Hamilton") arrived. (Id.) Chief Hudson and Howard met and talked, and Robinson was allowed to bond out and was released from custody on the condition that he bring the firearm to the police department the next day, May 8, 2012, or have his bond revoked. (Id.) On May 8, 2012, Robinson - along with his two (2) year old son Isaiah Robinson, Howard (his mother), and his uncle (State Representative Ralph Howard, Howard's brother) - took a firearm to the Greensboro police station to meet with police officers to discuss the return of the discharged firearm. (Doc. 1 (Complaint); Doc. 31-1 (Arrest Report)).
The facts of the case, beyond this point, are vehemently disputed. With specific respect to the resolution of a motion for summary judgment based on qualified immunity and Section 1983 - as is the case here - the Eleventh Circuit has declared:
.... we approach the facts from the plaintiff's perspective..."[t]he issues appealed here concern... whether or not certain given facts showed a violation of clearly established law.".... the "facts, as accepted at the summary judgment... may not be the actual facts".... for summary judgment purposes, our analysis must begin with a description of the facts in the light most favorable to the plaintiff....
McCullough v. Antolini , 559 F.3d 1201, 1202 (11th Cir. 2009). "At this juncture, we outline the [plaintiff's] version of the events." Hawkins v. Carmean, 562 Fed.Appx. 740 (11th Cir. 2014). Howard's version thus follows.
The meeting commenced in Chief Hudson's office. While discussing Robinson's crime, Howard's brother told the Chief that any personal animosity between them should not influence his investigation (they are members of opposing political factions in Greensboro). (Doc. 1 at 3-4; Doc. 40-1 (Decltn. Howard)). Howard's brother added: "I could have come here to curse you out but I didn't." (Doc. 40-1 (Decltn. Howard)). In response, Chief Hudson leapt from his chair into Howard's brother's face, pointing his finger in his face, touching his nose, and screaming. (Id.) At this point, Howard became involved.
Specifically, Howard, holding her two (2) year old grandson, stood up and stepped between the men to act as a peacemaker (without touching Chief Hudson), telling Chief Hudson he did not have to put his hands in her brother's face. (Id.; Doc. 31-9 (Dep. Howard at 287)). Chief Hudson pushed Howard on her shoulder with both of his hands with such force that she and her grandson fell to the ground and her grandson was knocked out of her arms, but Chief Hudson continued arguing with Howard's brother. (Doc. 40-1 (Decltn. Howard); Doc. 40-3 (Dep. Howard at 286-287); Doc. 31-9 (Dep. Howard at 278-281)). Howard got up from the floor, checked her grandson for injuries, and again tried to break the men apart. (Doc. 40-1 (Decltn. Howard)). Howard told Chief Hudson he did not have to put his hands on either she or her brother and Chief Hudson pushed Howard a second time. (Id.; Doc. 31-9 (Dep. Howard at 280-282)). At that point, seeing that they were "getting nowhere" Howard and her brother turned to leave and Howard asked for her shoe (which she had apparently lost during the exchange) which was kicked to her by Municipal Court Magistrate Singleton, who was also present. (Doc. 40-1 (Decltn. Howard); Doc. 31-9 (Dep. Howard at 287)).
Howard and her brother prepared to leave, with Howard protesting that Chief Hudson had assaulted her. (Doc. 40-1 (Decltn. Howard); Doc. 31-9 (Dep. Howard at 286)). Assistant Chief Hamilton took Howard's crying grandson out of the office. (Doc. 40-1 (Decltn. Howard)). Then Chief Hudson, using "his size and strength to try and subdue her[, ]" grabbed and began twisting Howard's arm. (Doc. 1; Doc. 40-1 (Decltn. Howard)). Howard told Chief Hudson to "turn my goddamn arm loose[, ]" but he would not. (Doc. 40-1 (Decltn. Howard)). At this point, Chief Hudson had not told Howard that she was under arrest. (Id.) Magistrate Singleton instructed Chief Hudson to use "this" referencing his belt, and Chief Hudson had what appeared to be two (2) firearms on his belt. (Id). Howard was afraid and more irate, asking "Red [Chief Hudson] are you going to shoot me over this[, ]" to which Magistrate Singleton said "no but he needs to Taser you." (Id.) Chief Hudson told Howard he was going to Taser her. (Id.; Doc. 31-9 (Dep. Howard at 303)).
Howard continued to struggle with Chief Hudson as the pressure to her arm was causing "excruciating pain" but he refused to stop. (Doc. 40-1 (Decltn. Howard)). At this point, Chief Hudson had still not informed Howard that she was under arrest. (Id.) Howard did not threaten him nor attempt to bite him, but "begged him to release" her. (Id.) Chief Hudson continued to "manhandle" her, and then dragged her from the back of the police department to the front (through city hall) and pushed her into a city employee's desk making her hit her head on a computer screen. (Id.) Chief Hudson continued to drag her again by her right arm and during the struggle Howard then fell into the desk of Lorrie Cook (a city employee), knocking objects to the floor. (Doc. 40-1 (Decltn. Howard); Doc. 31-9 (Dep. Howard at 258)). With this, Howard fell to the floor landing flat on her back, hitting her head again on a desk on the way down. (Doc. 40-1 (Decltn. Howard); Doc. 31-9 (Dep. Howard at 123, 266-268)). See also (Doc. 31-5 (Aff. Singleton); Doc. 31-7 (Aff. Cook)). Chief Hudson, who was still holding onto her arm, fell on her stomach with his knee between her legs. (Id.) At this point, Howard told Chief Hudson that she was going to "de-crotch" him. (Doc. 31-9 (Dep. Howard at 251, 261, 304)).
For the first time during the entire encounter, Chief Hudson told Howard she was "going to jail." (Doc. 40-1 (Decltn. Howard)). Howard responded "no, " "but I will go with Deputy [Enoch] Rose" (whom she trusted and with whom she felt safe). (Doc. 40-1 (Decltn. Howard)). Howard also began cursing Chief Hudson and telling him that he was hurting her. (Doc. 40-1 (Decltn. Howard); Doc. 31-9 (Dep. Howard at 258)). Around this time, 911 was called. (Doc. 31-5 (Aff. Singleton); Doc. 35 (Audio Recording of 911 calls)). Howard heard Chief Hudson tell Assistant Chief Hamilton to get his handcuffs. (Doc. 31-9 (Dep. Howard at 123)). "Hamilton told... [Howard that] he walked out the door, and he wasn't coming back with no handcuffs, because what he [Chief Hudson] did was wrong." (Id.) After Deputy Rose arrived at the scene, she helped Howard up, handcuffed one of her hands, and escorted her out of city hall to jail where she remained in a holding cell for 3½ hours. (Id.; Doc. 31-9 (Dep. Howard at 123, 131, 134)).
Howard was admitted to the ER at Hale County Hospital where she claims to have incurred over $10, 000 in bills. (Doc. 1 at 5). Howard was treated for a sprained arm and a neck bruise, and head soreness from hitting the desk. (Doc. 31-9 (Dep. Howard at 164, 187)). Howard was later treated by her chiropractor who concluded she had swollen shoulders and prescribed pain medicine. (Id. (Dep. Howard at 188)). Howard was ultimately charged with disorderly conduct and resisting arrest, was tried in Greensboro Municipal Criminal Court on November 15, 2012, and was convicted. (Doc. 31-10; Doc. 31-11 at 11-12). Howard appealed her conviction by paying $1, 388 to Municipal Magistrate Singleton, to the Hale County Circuit Court. (Doc. 40-1 (Decltn. Howard)). After paying her fee she periodically contacted the Greensboro Circuit Court clerk and asked whether "the money had been transferred" and was repeatedly told "no." (Id.) In December 2013, Howard was contacted by the Clerk of the City of Greensboro, Lorrie Cook, who told her to pick up her appellate filing fee. (Id.) Per Howard, Magistrate Singleton had not processed her appeal payment. (Id.)
On May 1, 2013, Howard filed a Section 1983 complaint against Chief Hudson (in his individual and official capacities) for excessive force, assault and battery (also under state law citing Ala. Code § 6-5-370), false arrest, and denial of due process; and against the City of Greensboro, Alabama ("the City") for denial of due process, and for the state law claims of negligent training, supervision and retention. (Doc. 1). Howard claims physical injuries, mental anguish, and emotional distress from "Chief Hudson's unprovoked attack." (Id.) Howard asserts injuries to her back, neck, and right arm, for which she continues to receive treatment. (Doc. 40-1 (Decltn. Howard)). Howard also asserts that her grandson remains afraid when he sees law enforcement, due to having witnessed Chief Hudson's actions. (Id.)
II. Motions to Strike
The Defendants filed motions to strike the deposition of Morris Polion ("Polion") and the Declaration of Howard, to which Howard has responded. (Docs. 43, 44, 47). With the December 1, 2010 rules change to Rule 56 of the Federal Rules of Civil Procedure, motions to strike submitted on summary judgment are no longer appropriate. Revised Rule 56(c)(2) provides that "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." The Advisory Committee Notes specify as follows:
"Subdivision (c)(2) provides that a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the summary-judgment stage does not forfeit the right to challenge admissibility at trial."
Fed.R.Civ.P. 56, Adv. Comm. Notes, "Subdivision(c)" (2010 Amendments) (emphasis added). As such, the Court construes the Defendants' motions as Objections, to be overruled or sustained.
A. Deposition of Morris Polion (Doc. 40-2)
Howard relies upon six (6) pages of the deposition of former Greensboro police officer Morris Polion,  as taken in another case in this Court (also against Chief Hudson), Polion v. City of Greensboro, et al, CV 13-00244-WS-M (S.D.Ala.). Howard asserts that Defendants' summary judgment as to her Section 1983 claim against the City should be denied as per Polion, "Chief Hudson's repeated and unlawful use of excessive force when dealing with Greensboro citizens was well known by the Mayor and some of the elected officials." (Doc. 39 at 2).
At the outset, Howard submitted the entirety of the deposition. However, Howard exclusively relies upon six (6) pages of the deposition (Pages 40-41, 60-61, 150-151). (Doc. 39 at 22). Thus, the remaining pages are simply irrelevant and have not been considered on summary judgment. As such, it is ORDERED that the Defendants' Objection is MOOT as to the remaining pages of Polion's deposition.
Concerning the six (6) pages relied upon by Howard, Polion testified that he believes that the Greensboro police department treated its citizens unjustly and unlawfully with intimidation, and that the Assistant Chief "advised him" of such mistreatment. (Id. (Dep. Polion at 40-41)). Polion testified that he witnessed incidents when Chief Hudson used a flashlight to hit citizens he was trying to arrest and/or during fights he was trying to break apart - he engaged in "aggressive handling of people" in Greensboro. (Id. (Dep. Polion at 60-61, 150-151)).
In objection, the Defendants contend that Howard violated the Federal Rules of Civil Procedure because Polion was never disclosed as a witness until summary judgment, preventing the Defendants from conducting any discovery as to him or deposing him as to Howard's specific claims. The Defendants add that while it was aware of Polion's identity as a City employee and that his deposition testimony (upon which Howard relies) was provided in another case in this Court, Polion v. City of Greensboro, et al, CV 13-244, the City's current counsel was not involved in that case and Howard's failure to disclose him as a witness in this case as well and his knowledge as to her claims, violates Rule 26. The Defendants argue that Howard's failure to disclose cannot be considered substantially justified or harmless under Rule 26 or Rule 37. However, the Defendants simultaneously admit that it listed Polion as a witness regarding the "facts and circumstances of Berndetta Howard's criminal behavior on May 8, 2012" as he was the officer who filed the incident/offense report on Howard's disorderly conduct charge. Even so, the Defendants contend that such should not change the Court's analysis as the City never received any notice that Howard would or might offer testimony from Polion to support her claims. Additionally, the Defendants generally contend that Polion's deposition contains hearsay, lacks evidentiary foundation and/or personal knowledge, and contains inadmissible/irrelevant information.
Upon consideration, the Defendants cannot claim surprise or failure to disclose a witness that it designated itself, and/or assert such simply because Howard intends to use that witness to try to bolster her case. Additionally, one of the attorneys for the City was counsel in the Polion case, which provided access/knowledge of the contents of Polion's deposition. As for a lack of personal knowledge, Polion testified to personal knowledge of the events on the six (6) pages (as he was present). Concerning hearsay, inadmissible hearsay may be considered on summary judgment provided that such hearsay could be reduced to admissible form at trial. Hosea v. Langley , 2006 WL 314454, *8 (S.D. Ala. Feb. 8, 2006); Jones v. UPS Ground Freight , 683 F.3d 1283, 1293-1294 (11th Cir. 2012); Macuba v. Deboer , 193 F.3d 1316, 1322 (11th Cir. 1999).
Nevertheless, the pages upon which Howard relies concern Polion's testimony about incidents he witnessed as to Chief Hudson, and other individuals (individuals unrelated to this case). Additionally, the pages do not support Howard's conclusory assertion that "Chief Hudson's repeated and unlawful use of excessive force when dealing with Greensboro citizens was well known by the Mayor and some of the elected officials[.]" Rather, the pages reveal Polion's personal beliefs; that former Assistant Chief Coates possibly knew about Chief Hudson's actions; that he witnessed incidents where Chief Hudson used a flashlight to hit citizens. These pages do not mention the Mayor and/or other elected officials, nor do they ...