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Dixon v. Kimbrell

United States District Court, N.D. Alabama, Southern Division

January 28, 2015

CORENE DIXON, as the personal representative of Willie Maye, Plaintiff
v.
SHAWN KIMBRELL, et al., Defendants

For Corene Dixon, as the personal representative of Willie Maye, Plaintiff: Stewart G Springer, LEAD ATTORNEY, SPRINGER LAW FIRM LLC, Birmingham, AL.

For Shawn Kimbrell, Birmingham Police Officer, Jerry Wiley, Birmingham Police Officer, Eric Poole, Birmingham Police Officer, Defendants: Frederic L Fullerton, II, LEAD ATTORNEY, CITY OF BIRMINGHAM, Legal Department, Birmingham, AL.

REPORT AND RECOMMENDATION

HARWELL G. DAVIS, III, UNITED STATES MAGISTRATE JUDGE.

The above-entitled civil action is before the court on the motion for summary judgment filed by defendants. (Doc. 10). Defendants' motion was filed on July 31, 2014. Under Appendix II of the Initial Order Governing All Further Proceedings entered herein on September 26, 2013 (Doc. 6), plaintiff's opposition to the summary judgment motion was due 21 days thereafter. To date, no opposition to the summary judgment motion has been filed by plaintiff.

Procedural Background

The complaint in this action was originally filed in the Circuit Court of Jefferson County on June 17, 2009. The action was dismissed by the Jefferson County Circuit Court for lack of service and lack of prosecution on March 15, 2013. However, the action was reinstated on June 20, 2013, after plaintiff presented evidence showing proper service of process in April 2011 as to defendants Shawn Kimble, Jerry Wiley and Eric Poole. Defendants removed the complaint to federal court on July 17, 2013.

In her complaint, plaintiff, Corene Dixon, as Personal Representative of the Estate of Willie Maye, alleges that on June 5, 2008, at 11:30 p.m., the vehicle in which Willie Maye was a passenger was stopped by the Birmingham Police Department. The complaint further alleges that Maye was sprayed with mace, tasered and beaten, without cause. The fire and rescue service was called, but instead of transporting Maye to the emergency room, they told police to take him there. Maye subsequently died. The complaint asserts causes of action against defendants Kimble, Wiley and Poole pursuant to 42 U.S.C. § 1983 for violation of Maye's Fourteenth Amendment rights (Count Five), [1] as well as state law claims of negligence (Count One), assault and battery (Count Three), and false imprisonment (Count Four).[2] The sole remaining defendants are Shawn Kimble (incorrectly named in the complaint as " Shawn Kimbrell"), Jerry Wiley and Eric Poole.[3]

Summary Judgment Standard

" The 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) (Dec. 2010). Rule 56(c) provides:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. 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.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed.R.Civ.P. 56(c) (Dec. 2010).

Defendants, as the parties seeking summary judgment, bear the initial responsibility of informing the district court of the basis for their motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which they believe demonstrates the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). A genuine issue of material fact is shown when the non-moving party produces evidence so that a reasonable factfinder could return a verdict in her favor. Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007). If the non-moving party fails to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. Rule 56(e), Fed.R.Civ.P., provides that if a party " fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: . . . (2) consider the fact undisputed for purposes of the motion; [or] (3) grant summary judgment if the motion and supporting materials-- including the facts considered undisputed--show that the movant is entitled to it. . . ." Fed.R.Civ.P. 56(e)(2) and (3). In reviewing whether the non-moving party has met her burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in her favor. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-99 (11th Cir. 1992) (internal citations and quotations omitted). However, speculation or conjecture cannot create a genuine issue of material fact. Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). A " mere scintilla of evidence" in support of the non-moving party also cannot overcome a motion for summary judgment. Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004).

Undisputed Facts

Defendants Captain Jerry Wiley and Officer Shawn Kimble are employed with the City of Birmingham Police Department. (Doc. 11-1, Affidavit of Jerry Wiley (Wiley Aff.); Doc. 11-2, Affidavit of Shawn Kimble (Kimble Aff.)). Wiley is the Assistant Patrol Bureau Commander. (Wiley Aff. at 1). Officer Eric Poole is currently employed with the University of Alabama Police Department, but he was employed with the City of Birmingham Police Department at the time of the events alleged in the complaint. (Doc. 11-3, Affidavit of Eric Poole (Poole Aff.)).

On June 5, 2008, members of the West Precinct Task Force were conducting a traffic checkpoint at Hibernian Avenue and Miles Street in Birmingham. A vehicle (2001 four-door beige Buick Park Avenue, Tag #A567984) occupied by Maye and another unknown suspect fled from the checkpoint after being stopped by Officer Beverly Cox. (Wiley Aff. at 1; Kimble Aff. at 1; Poole Aff. at 1). Birmingham Police Officers Field Morton and Jason Cargile gave pursuit to the vehicle driven by Maye. A foot pursuit then ensued and Officers Morton and Cargile were able to apprehend Maye. Maye resisted arrest and engaged in a physical confrontation with the pursuing officers. Backup officers were requested. Sergeant James Henderson and Officer Heather Campbell assisted Officers Morton and Cargile with taking Maye into custody. (Wiley Aff. at 1; Kimble Aff. at 1).

Officer Poole and Officer Kimble also assisted in attempting to arrest Maye. When Kimble arrived on the scene, Maye was fighting and belligerent, throwing punches, kicking and struggling with the four officers attempting to handcuff him. (Kimble Aff. at 1-2). One of the officers, Sergeant Henderson, ordered Kimble to use his taser on Maye. Kimble " drive stunned" [4] Maye twice, but the taser weakened with each cycle and had no effect on Maye; he continued to struggle and resist arrest. (Id. at 2). When Poole arrived at the scene in response to the request for backup, he observed Officers Cagile, Morton and Campbell in a struggle attempting to handcuff Maye. Poole tried to hold Maye, but Maye kicked the glasses off Poole's face. (Poole Aff. at 2). Officers Cagile and Morton finally were able to handcuff Maye. Neither Poole nor Kimble observed anyone strike or mace Maye, nor did they strike or mace Maye. (Poole Aff. at 2; Kimble Aff. at 2). Wiley was not present when the struggle with Maye took place and did not even touch Maye; he only arrived afterward. (Wiley Aff. at 2). Maye was not transported to the hospital by Wiley, Kimble or Poole. (Id.; Kimble Aff. at 2; Poole Aff. at 2).

Maye was taken into custody and charged with trafficking marijuana after officers found approximately ten pounds of marijuana in garbage bags in the trunk of the vehicle driven by Maye. (Kimble Aff. at 2; Wiley Aff. at 2).

Birmingham Fire and Rescue responded to the scene and treated Maye. Maye was transported to Cooper Green Hospital for further medical attention. Maye later died at Cooper Green Hospital after efforts to revive him proved unsuccessful. (Id.; Poole Aff. at 2). The Internal Affairs Division of the Birmingham Police Department and the Jefferson County District Attorney's Office investigated the circumstances regarding the death of Maye and exonerated all police officers, firefighters and paramedics involved. (Id.; Wiley Aff. at 2).

Discussion

A. Official Capacity Suit Under 42 U.S.C. § 1983

While it is unclear from the complaint whether plaintiff is suing defendants in their official capacities, as well as their individual capacities, defendants seek summary judgment in their favor, to the extent plaintiff's § 1983 count asserts any claim against defendants in their official capacities.

According to Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985):

Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent. As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.

Id. at 165-66 (quotations and citations omitted). Therefore, to the extent that plaintiff is alleging claims against defendants in their official capacities, they are duplicative of claims against the City of Birmingham, and defendants, in their official capacities, are due summary judgment in their favor on plaintiff's § 1983 claim. See Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991); Cooper v. City of Starke, Fla., 2011 WL 1100142 (M.D.Fla. Mar. 23, 2011) (dismissing official capacity claims against individual defendants, where city was also sued).

B. Individual Capacity Suit Under 42 U.S.C. § 1983

Defendants assert that they are entitled to qualified immunity with respect to plaintiff's § 1983 claim against them, in their individual capacities. The court must determine that issue as a matter of law. Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995).

In Saucier v. Katz, the Supreme Court mandated a two-step analysis for resolving qualified immunity claims. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001). First, a court must decide whether the facts that a plaintiff has alleged " show the [defendant's] conduct violated a constitutional right." Id. Second, the court must decide " whether the right was clearly established." Id. " For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant's place, that 'what he is doing' violates federal law." Lassiter v. Alabama A& M Univ. Bd. of Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994) ( en banc ) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). " 'For qualified immunity to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances.'" Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 823 (11th Cir. 1997) ( en banc ) (quoting Lassiter, 28 F.3d at 1150).

Qualified immunity offers complete protection for individual government officials performing discretionary functions " insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). " Qualified immunity balances two important interests--the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009). A party is eligible to claim qualified immunity if he was acting within the line and scope of his employment. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004). Since plaintiff's claims revolve around the arrest of Willie Maye, defendants can meet their initial burden of demonstrating that they were engaged in actions within the line and scope of their employment.

While plaintiff has asserted the Fourteenth Amendment as the basis for the § 1983 claim, the Supreme Court has clarified:

that all claims that law enforcement officers have used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other " seizure" of a free citizen should be analyzed under the Fourth Amendment and its " reasonableness" standard, rather than under a " substantive due process" approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of " substantive due process, " must be the guide for analyzing these claims.

Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989).

That the right to make an arrest " necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it" is well established. Id. at 396, 109 S.Ct. at 1871-72. For excessive force claims, " objective reasonableness" is the test. Zivojinovich v. Barner, 525 F.3d 1059, 1072 (11th Cir. 2008). A court also considers some secondary factors: " '(1) the need for the application of force, (2) the relationship between the need and amount of force used, and (3) the extent of the injury inflicted.'" Draper v. Reynolds, 369 F.3d 1270, 1277-78 (11th Cir. 2004) (quoting Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002)). " Whether the force was applied in good faith or maliciously and sadistically" is also a factor to be considered. See Slicker v. Jackson, 215 F.3d 1225, 1233 (11th Cir. 2000). The nature and degree of force needed is measured by such factors as " the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396, 109 S.Ct. at 1872; see also Lee, 284 F.3d at 1198 (" [T]he force used by a police officer in carrying out an arrest must be reasonably proportionate to the need for that force, which is measured by the severity of the crime, the danger to the officer, and the risk of flight."). " The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396, 109 S.Ct. at 1872. The use of a taser to effect an arrest has been held not to constitute excessive force, where the subject was actively resisting arrest. Buckley v. Haddock, 292 F.App'x 791 (11th Cir. 2008).

In light of the undisputed facts established by defendants--that Maye fled a checkpoint in a vehicle and then fled on foot from officers, then resisted arrest to the extent that officers had to use force to subdue and arrest him--do not show that defendants committed a constitutional violation or that the violation involved a clearly established right. The officers were required to apply force to arrest Maye because he was throwing punches, kicking and struggling with the officers attempting to arrest him. It is undisputed that a taser in " drive stun mode" was used to subdue Maye; however, there is no evidence that defendants used mace or beat Maye. The force used was proportionate to the need for use of force to effect Maye's arrest. He posed an immediate threat to officers, attempted to evade arrest by flight, and actively resisted arrest once officers caught up with him. While it is unfortunate that Maye subsequently died, there is no evidence that his death was caused by any force used by defendants Kimble or Poole, nor that they acted maliciously and sadistically. Because defendants did not violate clearly established law in arresting Maye, they are entitled to qualified immunity with respect to plaintiff's § 1983 claim.

C. State Law Claims

Plaintiff has asserted state law claims for negligence, assault and battery, and false imprisonment. Defendants contend they are entitled to state-agent immunity with respect to all state law claims.

Alabama law provides that municipal police officers are entitled to immunity from tort liability under the following circumstances:

Every peace officer, except constables, who is employed or appointed pursuant to the Constitution or statutes of this state, whether appointed or employed as such peace officer by the state or a county or municipality thereof, . . . and whose duties prescribed by law, or by the lawful terms of their employment or appointment, include the enforcement of, or the investigation and reporting of violations of, the criminal laws of this state, and who is empowered by the laws of this state to execute warrants, to arrest and to take into custody persons who violate, or who are lawfully charged by warrant, indictment, or other lawful process, with violations of, the criminal laws of this state, shall at all times be deemed to be officers of this state, and as such shall have immunity from tort liability arising out of his or her conduct in performance of any discretionary function within the line and scope of his or her law enforcement duties .

Ala. Code § 6-5-338(a) (1975) (emphasis supplied). The Alabama Supreme Court restated the rule governing state-agent immunity in a plurality decision in Ex parte Cranman, 792 So.2d 392 (Ala. 2000):

A State agent shall be immune from civil liability in his or her personal capacity when the conduct made the basis of the claim against the agent is based upon the agent's
(1) formulating plans, policies, or designs; or
(2) exercising his or her judgment in the administration of a department or agency of government . . .
. . .
(4) exercising judgment in the enforcement of criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons; . . . .

Id. at 405 (emphasis in original). The plurality opinion in Cranman was subsequently modified in Hollis v. City of Brighton, 950 So.2d 300, 309 (Ala. 2006), to extend immunity to

(4) exercising judgment in the enforcement of criminal laws of the State, including, but not limited to, law-enforcement officers' arresting or attempting to arrest persons, or serving as peace officers under circumstances entitling such officers to immunity pursuant to § 6-5-338(a), Ala. Code 1975 .

Id. at 309 (quoting Cranman, 792 So.2d at 405) (emphasis in original to emphasize language added to the Cranman restatement).

Discretionary-function/state-agent immunity applies when the defendant claiming such immunity satisfies three elements of proof: (a) the defendant demonstrates that he or she was a peace officer on the date of the incident in question, and that he or she was (b) performing law enforcement duties, and (c) exercising judgment or discretion when doing so. See Howard v. City of Atmore, 887 So.2d 201, 204 (Ala. 2003).

A burden-shifting analysis is employed when determining whether discretionary-function immunity applies. See id. at 205. The defendant bears the burden of showing that the plaintiff's " claims arise from a function that would entitle [the defendant] to immunity." Id.; see also Walker v. City of Huntsville, 62 So.3d 474, 496-98 (Ala. 2010). " The burden then shifts to the plaintiff to show that one of the two categories of exceptions . . . recognized in Cranman is applicable." Ex parte Kennedy, 992 So.2d 1276, 1282 (Ala. 2008). The two exceptions to immunity recognized in Cranman were stated as follows:

Notwithstanding anything to the contrary in the foregoing statement of the rule, a State agent shall not be immune from civil liability in his or her personal capacity
(1) when the Constitution or laws of the United States, or the Constitution of this State, or laws, rules, or regulations of this State enacted or promulgated for the purpose of regulating the activities of a governmental agency require otherwise; or
(2) when the state agent acts willfully, maliciously, fraudulently, in bad faith, beyond his or her authority, or under a mistaken interpretation of the law.

Cranman, 792 So.2d at 405 (emphasis in original).

The first element for the application of discretionary-function immunity in this case -- that the defendant be a " peace officer" -- is not disputed. See Borders v. City of Huntsville, 875 So.2d 1168, 1178 (Ala. 2003) (" As a police officer, [the defendant] qualifies as a peace officer for purposes of [discretionary-function immunity]."); Howard, 887 So.2d at 204 (" It is undisputed that Officer Byars[, a police officer, ] was a law enforcement officer at the [relevant time] . . . . The first element is, therefore, satisfied.").

The second element is also satisfied because defendants Kimble and Poole were performing law enforcement duties in arresting Maye. Enforcement of the criminal laws is a discretionary function. See Cranman, 792 So.2d at 405 (including within those actions for which officers have immunity " officers' arresting or attempting to arrest persons"); House v. State, 380 So.2d 940, 941 (Ala. 1979) (holding that for immunity purposes law enforcement duties include the " detection and apprehension of criminals"). Defendant Wiley did not arrive until after the officers struggled with Maye, but as Assistant Patrol Bureau Commander, his actions would fall within sections (1), (2) and (4) of the Cranman test.

The third element, that the officers were exercising judgment or discretion in performing the law enforcement duty of arresting or attempting to arrest Maye and charging him with trafficking marijuana, is also satisfied in this case.

Because defendants have satisfied their burden of showing entitlement to discretionary-function immunity, the burden shifts to plaintiff to show that one of the exceptions to immunity applies. Plaintiff has failed to satisfy this burden of proof with respect to the remaining state law claims; indeed, plaintiff has not even responded to defendants' motion for summary judgment. Further, there is no evidence that defendants acted willfully, maliciously, fraudulently, in bad faith, beyond their authority, or under a mistaken interpretation of the law. Nor is there evidence that the Constitution or laws of the United States, or the Constitution, laws, rules, or regulations of Alabama enacted or promulgated for the purpose of regulating the activities of a governmental agency required that defendants act otherwise than they did.

In addition, a claim for false imprisonment will not lie when officers have arguable probable cause for arrest. Brown v. City of Huntsville, Ala., 608 F.3d 724, 741-42 (11th Cir. 2010); Upshaw v. McArdle, 650 So.2d 875, 878 (Ala. 1994). Probable cause for Maye's arrest existed, based on his flight from the checkpoint, active resistance to the officers' efforts to arrest him, and the presence of ten pounds of marijuana in his vehicle.

Conclusion

Based on the foregoing, analysis, it is RECOMMENDED that defendants' motion for summary judgment be GRANTED with respect to all claims asserted by plaintiff and that this action be DISMISSED WITH PREJUDICE.

Notice of Right to Object

The parties are DIRECTED to file any objections to this Report and Recommendation within a period of fourteen (14) days from the date of entry. Any objections filed must specifically identify the findings in the magistrate judge's recommendation objected to. Frivolous, conclusive, or general objections will not be considered by the district court.

Failure to file written objections to the proposed findings and recommendations of the magistrate judge's report shall bar the party from a de novo determination by the district court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report accepted or adopted by the district court except on grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. Prichard, 661 F.2d 1206 (11th Cir. 1981) ( en banc ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.


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