United States District Court, N.D. Alabama, Southern Division
CORENE DIXON, as the personal representative of Willie Maye, Plaintiff
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.
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),  as well as state law claims of negligence (Count One), assault and battery (Count Three), and false imprisonment (Count Four). The sole remaining defendants are Shawn Kimble (incorrectly named in the complaint as " Shawn Kimbrell"), Jerry Wiley and Eric Poole.
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).
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 ...