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Forehand v. Kearley

United States District Court, M.D. Alabama, Northern Division

February 3, 2015

C.S. KEARLEY, Deputy, in his individual capacity and official, Defendant.


W. HAROLD ALBRITTON, Senior District Judge.


This cause is before the court on Defendant Deputy Sheriff C.S. Kearley's Motion for Summary Judgment (Doc. # 35), filed on January 12, 2015. Also before the court are Plaintiff Thornton Forehand's Response to the Motion (Doc. # 42), and Defendant's Reply thereto (Doc. # 43). The Plaintiff originally sued Elmore County and the the Elmore County Sheriff Department, along with Deputy Kearley, for claims including assault and battery, negligence, and wantonness, all arising from a March 29, 2012 arrest of the Plaintiff for criminal littering. Following the court's order of June 5, 2014 (Doc. # 21) dismissing many of the claims, the only remaining claim is for the use of excessive force in violation of the Fourth Amendment, brought pursuant to 42 U.S.C. ยง 1983. Deputy Kearley ("Defendant") is the only remaining Defendant.

The Defendant filed an initial Motion for Judgment on the Pleadings, or in the alternative, Motion for Summary Judgment, on November 14, 2014. The sole basis for that Motion was the fact that the Plaintiff had mislabeled his excessive force claim as arising under the Fourteenth Amendment instead of the Fourth Amendment. The court extended various deadlines in the case to provide an opportunity for the Plaintiff to amend his Complaint, and for the Defendant to file another dispositive motion in response. (Doc. # 31.) Both parties took advantage of those opportunities. For the reasons discussed below, the Motion for Summary Judgment is due to be GRANTED.


Summary judgment is proper "if there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, " relying on submissions "which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323. Once the moving party has met its burden, the nonmoving party must "go beyond the pleadings" and show that there is a genuine issue for trial. Id. at 324.

Both the party "asserting that a fact cannot be, " and a party asserting that a fact is genuinely disputed, must support their assertions by "citing to particular parts of materials in the record, " or by "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." Fed.R.Civ.P. 56 (c)(1)(A)-(B). Acceptable materials under Rule 56(c)(1)(A) include "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials."

To avoid summary judgment, the nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the non-movant must be believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).

After the nonmoving party has responded to the motion for summary judgment, 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).


The submissions of the parties establish the following facts, construed in a light most favorable to the non-movant, the Plaintiff:

The Plaintiff was arrested at his home on March 29, 2012. Elmore County law enforcement officers, including the Defendant and Sheriff Bill Franklin, went to the home because of a report of wooden boards with nails sticking out laid across Hancock Road, which is adjacent to the Plaintiff's property.[1] The Plaintiff has disputed the fact that Hancock Road is a public road since a 1991 state court ruling declaring it to be so. He maintains that he made the road, and that road crews working there stir up dust when they scrape the road. He has told the road crews not to scrape the road because of the dust, and because he believes the road is not public. He also finds that his house fills up with dust when drivers exceed the speed limit on the road.

When the Defendant arrived at the property on March 29, he hammered the nails down so they would lie flat instead of sticking up. According to a dispatch log record, the Plaintiff threatened to meet Sheriff Franklin and the deputies in his driveway with a firearm if they came to arrest him. Eventually, the Defendant and two other deputies went to the Plaintiff's front door. The deputies knocked, and after the Plaintiff opened the door, they used some force to bring him outside so they could handcuff and arrest him, including putting him on the ground to do so.[2] The Plaintiff recalls that he was "hit" with something, perhaps hands or fists, and that he was beaten. As the deputies put the Plaintiff in a police car, he told them it was painful to have his arms behind his back. The Plaintiff had previously been injured when he was run over by horses in a serious incident near his home. That accident caused extensive injuries to his right shoulder, his right hip, and his back, and he was taken by helicopter to a hospital. Because of the horse ...

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