United States District Court, N.D. Alabama, Northeastern Division
C. LYNWOOD SMITH, Jr., District Judge.
Courtney Orlando Crutcher commenced this action as a pro se plaintiff,  but now is represented by an attorney. His original complaint alleged numerous claims against Athens, Alabama, Police Officer Randy Vickers, the City of Athens, Alabama, the Athens Police Department, and Athens Police Chief Wayne Harper. The gravamen of his claims was that Officer Vickers choked him when effecting an arrest on December 8, 2008. All defendants except the City of Athens responded to the complaint by filing motions to dismiss. The court granted the motions filed by Police Chief Wayne Harper and the Athens Police Department, but denied the motion filed by Officer Randy Vickers. Thereafter, plaintiff twice amended his complaint,  and Vickers and the City of Athens filed motions to dismiss the amended pleadings. The court granted the motions in part, and dismissed several of plaintiff's claims. The only claims that remain pending against defendants Vickers and City of Athens are a federal claim for excessive force, and supplemental state-law claims for assault and battery and outrage. The action presently is before the court on defendants' motion for summary judgment.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In other words, summary judgment is proper "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) ( en banc ) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not unqualified, however. "[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation." Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration supplied). see also Saucier v. Katz, 533 U.S. 204, 201 (2001) ("A court required to rule upon the qualified immunity issue must consider... this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officers conduct violated a constitutional right?") (emphasis supplied).
II. SUMMARY OF FACTS
Randy Vickers has been employed as a police officer for the City of Athens, Alabama, since February 2, 2005. He first encountered plaintiff in the Spring of 2008, when he stopped plaintiff's automobile on Sanderfer Road in Athens, because plaintiff was not wearing a seatbelt. Vickers asked plaintiff for his driver's license, but he did not have one. Plaintiff was traveling with a licensed female passenger at the time, however, so Vickers issued only a verbal warning to plaintiff, rather than a written citation, and allowed the female to drive the vehicle away from the scene with plaintiff as her passenger.
Officer Vickers's next encounter with the plaintiff occurred on the evening of December 8, 2008. Vickers was on duty in his police cruiser, traveling south on Hines Street,  when he passed plaintiff, who was northbound on the same public roadway. Plaintiff was exceeding the speed limit. After passing Officer Vickers, plaintiff pulled into the parking lot of T&T Grocery (a convenience store), exited his vehicle, walked to the front door of the store, and began talking to a friend, David Kirby. About thirty second later, Officer Vickers pulled into the parking lot and activated his lights. He then walked up to plaintiff and asked for his driver's license. Once again, plaintiff did not have a license,  but he provided his Social Security number at Vickers's request. Vickers called the police dispatch operator and ascertained through the use of plaintiff's Social Security number that his driver's license had been revoked. He then called for a wrecker to tow plaintiff's automobile to an impoundment facility. That upset plaintiff, and Vickers asked him to sit in his patrol cruiser while he conducted an inventory search of plaintiff's vehicle prior to its impoundment. Plaintiff complied, but Vickers was unable to locate a tag receipt while searching the automobile. He allowed plaintiff to retrieve the receipt from his vehicle.
After obtaining the tag receipt, Officer Vickers attempted to issue two written citations - speeding, and driving while revoked - but plaintiff refused to sign the citations, saying that he was "not going to sign shit." Vickers told plaintiff that he would have to take him to jail if he did not sign the tickets. That further upset plaintiff, and he threatened to kill Vickers when he saw him "out of [his] uniform."
Vickers radioed for backup, and told plaintiff to turn around and place his hands behind his back. Plaintiff did not immediately comply but, instead, continued to curse Vickers and threaten him. Vickers asked plaintiff to turn around several more times. Finally, after approximately eight such requests, plaintiff turned around and allowed Vickers to handcuff him. While Vickers was doing so, he rhetorically asked: "what [are] you going to do when you see me?"
Vickers opened the back door to his police cruiser and instructed plaintiff to sit inside, but he refused to do so. Vickers ordered plaintiff several more times, but plaintiff refused to comply, and continued to threaten Vickers. What happened next is contested.
Defendants contend that Officer Vickers applied a so-called "brachial plexus clavicle notch nerve pressure point control technique" to compel plaintiff's compliance with his directives. That control technique is administered by pressing downward on the shoulder, between the neck and the clavicle. Through its use, Vickers was able to place plaintiff in the backseat of the patrol car without further incident.
Plaintiff, on the other hand, contends that Vickers "took his forearm and he put it in [plaintiff's] neck, " and Vickers "had his body weight on" plaintiff's neck while plaintiff's "back went against the car." Plaintiff blacked out and, when he regained consciousness, his "head was in the floorboard [of the police car] and [his] right foot was on the window."
The tow-truck and backup police officer did not arrive until after plaintiff had been placed in Vickers's police cruiser. Vickers asked the backup officer to complete the impoundment of plaintiff's automobile, while he transported plaintiff to the police department for booking. Plaintiff's grandmother, Dorthy Malone,  who had arrived at some point, asked Vickers if she could take plaintiff's vehicle, rather than having it towed, but Vickers denied her request, saying that, "if she would have been there earlier before the wrecker was called" he would have allowed her to drive the car away from the scene.
While Vickers filled out the booking paperwork at the police department, plaintiff continued to threaten him, saying he was "going to get [Vickers] when [he's] not in [his] uniform, [and that] he knows where [Vickers] live[s], knows [Vickers] goes to Walmart late at night, [and] knows [Vickers's] family." Plaintiff eventually was charged with speeding, driving while revoked, harassment, resisting arrest, and disorderly conduct. The day after his arrest, plaintiff visited the doctor for a stiff neck, and was diagnosed with a muscle sprain. Later, in June of 2009, plaintiff observed Officer Vickers "reenact choking [plaintiff] like from the incident at the [T&T] store" in his police cruiser.
In the Winter of 2009, Officer Vickers was near a Jiffy gas station in Athens when he heard loud music coming from a car, and saw plaintiff "throwing his hands up at [Vickers]." Vickers attempted to give plaintiff a written citation for a violation of the city's noise ordinance, but plaintiff refused to sign it, telling Vickers that "he's not signing shit... to keep his fucking license, and [that Vickers didn't] have him stopped because [he] didn't have [his] blue lights on." Plaintiff then got into his automobile and was attempting to leave, but Vickers pulled out his taser and ordered plaintiff out of the vehicle. Plaintiff complied, and Vickers arrested him for disorderly conduct.
Plaintiff alleges three claims against defendants: a federal claim, asserted under 42 U.S.C. § 1983, that Vickers employed excessive or unreasonable force in violation of rights guaranteed to plaintiff by the Fourth Amendment to the United States Constitution; and supplemental state-law claims for assault and battery and outraged, asserted under 28 U.S.C. § 1367.
A. Qualified Immunity for Plaintiff's Excessive Force Claim
Defendants contend that the doctrine of qualified immunity shields Officer Vickers from liability for plaintiff's Fourth-Amendment excessive-force claim. That doctrine provides "immunity from suit to governmental officials performing discretionary functions as long as their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known.'" Green v. Brantley, 941 F.2d 1146, 1148 (11th Cir. 1991) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The purpose of the doctrine is to allow government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation. Anderson v. Creighton, 483 U.S. 635, 638 (1987); Lee v. Ferraro, 284 F.3d 1188, 1193-94 (11th Cir. 2002). It protects from suit "all but the plainly incompetent or one who is knowingly violating ...