United States District Court, Northern District of Alabama, Middle Division
ORDER DENYING SUMMARY JUDGMENT
The magistrate judge filed his report and recommendation on September 9, 2014, recommending that the court deny the defendant’s motion for summary judgment filed July 21, 2014. The defendant filed his objections to the report and recommendation on September 23, 2014. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72, the court has reviewed and considered de novo the report and recommendation, the objections to it, and other materials in the court file. The objections are hereby OVERRULED, and the report hereby is ADOPTED, and the recommendation is ACCEPTED.
Although defendant objects to several portions of the report and recommendation, the most important one is the finding that factual disputes remain for a factfinder to resolve as to whether Officer Lukima used excessive force by punching, hitting, striking, or kicking plaintiff after he was restrained and handcuffed on the floor. Defendant contends that plaintiff testified in his deposition that Lukima did not hit, strike, or kick him. This is a misreading of plaintiff’s testimony.
Plaintiff’s deposition testimony, which must be accepted as true for purposes of the defendant’s motion for summary judgment, is fairly clear. As plaintiff was walking out of his cell with a cellphone in his hand, Officer Lukima approached and demanded he surrender the phone as contraband. Instead, plaintiff threw the phone “upstairs” to the second tier of cells in the cellblock. When he did so, Officer Lukima “tried to tackle” plaintiff. There was a short “tussle, ” ending with Officer Lukima telling plaintiff to stand in the hallway. Plaintiff described the “tussle” as, “[i]t’s like he’s trying to take me to the ground, but I’m not going to let you take me to the ground.” When the “tussle” ended, plaintiff went to the hallway as instructed by Officer Lukima. Plaintiff saw another officer, Officer Thompson, with his cellphone, talking to Officer Lukima. Then, Officer Lukima came through the door into the hallway “and swung and punched [plaintiff] in the face.” The blow struck plaintiff “in the left side of the face, ” “[l]ike on the side of [plaintiff’s] nose right up underneath the eye.” Officer Lukima then grabbed plaintiff by the shirt and pants and threw him to the floor.
After being taken to the floor by Officer Lukima, other officers arrived and began punching and kicking plaintiff. Officer Lukima was still holding onto plaintiff’s left arm, but had it bent upward. Plaintiff gave the following testimony:
Q. So it’s your belief, although you don’t know for sure, but it’s your belief that it was some other officers who were striking you, not Officer Lukima.
A. I know all of them was striking me. He had already struck me when he tried to tackle me and tried to punch me.
Q. You’ve already described that.
A. And tried to break my shoulder, but now, the kicking in the head and the ribs and all that, no, he couldn’t have did that and tried to cuff me. No, he couldn’t have did that.
Doc. no. 35-2, at 96. Later, plaintiff again indicated that Officer Lukima also struck him while he was being punched and kicked by a group of officers:
Q. And so it’s your testimony that once you were placed on the ground, when he grabbed your shirt and your pants and put you on the ground and was trying to handcuff you, it’s your belief that it was some other officers who were striking you, not Officer Lukima, because it would be very difficult for him to do both; is that correct?
A. It wouldn’t be difficult for him to do both.
Q. I thought you said he had your arm --
A. He had my arm.
Q. He was trying to ...