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Parks v. City of Birmingham

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

March 30, 2015




This case is presently pending before the court on a Motion for Summary Judgment filed by defendants City of Birmingham, Alabama, Emanuel Rosato, and Tyrone Polk. (Doc. 21.)[1] Plaintiff Ceciele Parks filed this suit against defendants, the City and its police officers Rosato and Polk, following her arrest for disorderly conduct on June 1, 2011. Parks alleges that the arrest was unlawful and that the force used to arrest her was excessive in violation of the Fourth Amendment of the United States Constitution. She also alleges state-law causes of action for false imprisonment and assault and battery (state-law excessive force) against defendants. Upon consideration of the record, the submissions of the parties, the arguments of counsel, and the relevant law, the court is of the opinion that defendants' Motion for Summary Judgment, (Doc. 21), is due to be granted in part and denied in part.


Pursuant to Fed.R.Civ.P. 56(a), summary judgment is appropriate "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); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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.

Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 ("it is never enough simply to state that the non-moving party cannot meet its burden at trial").

In deciding a motion for summary judgment, the court's function is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. "[C]ourts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the [summary judgment] motion.'" Scott v. Harris, 550 U.S. 372, 378 (2007) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). Nevertheless, the non-moving party "need not be given the benefit of every inference but only of every reasonable inference." Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999) (citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988)); see also Scott, 550 U.S. at 380 ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.").


On June 1, 2011, plaintiff and her foster son, LaDanta Howard, drove to Wings R King, a restaurant located in Birmingham, Alabama, to return a pizza plaintiff's mother had purchased the previous day. (Doc. 22-4 at 21-24.) Plaintiff's mother had bought two pizzas, and plaintiff and her family had eaten a few pieces, which caused several people to become sick from food poisoning. ( Id. at 24, 26.) When they arrived at the restaurant, Howard walked inside and attempted to return the pizza while plaintiff remained in the car.[3] ( Id. at 26.) A female employee told Howard she needed to call the manager to address his problem, and once on the phone, the manager said he would not accept the returned pizza and that he would be at the restaurant in ten to fifteen minutes to talk with Howard. ( Id. at 28-29.)

Howard returned to the car to explain the situation to plaintiff, and plaintiff then called 911 because she wanted a record or her son's attempt to return the spoiled pizza. ( Id. at 29.) Approximately five minutes later, Officers Polk and Rosato arrived and parked around the corner from the spot in which plaintiff was parked. ( Id. at 30-32.) Howard approached the officers to explain the situation. ( See id. ) One of the officers asked Howard for his driver's license, and around this time, the female employee walked outside and told the officers that Howard had threatened to hit her with the pizza box while he was inside the restaurant attempting to return the pizza. ( Id. at 33.) One of the officers handed Howard's license to the employee, so she could write down his information. ( Id. ) In response to these events, Howard called plaintiff, and plaintiff drove around the corner, parked, and got out of the car.[4] (Doc. 22-4 at 34.) According to plaintiff, Officer Polk was cursing and not taking the situation seriously. (Doc. 22-4 at 37.)

Shortly thereafter, Mr. Mo, the owner of Wings R King, arrived, shook hands with the officers and began talking to them about football. (Doc. 22-4 at 40-41; see Doc. 22-1 at 23.) According to plaintiff, Mr. Mo and the officers appeared to be friends. (Doc. 22-4 at 40.) Some time later, Mr. Mo walked over to plaintiff and Howard and said that they had not purchased pizza from him. ( Id. at 41.) Plaintiff conceded that she had not purchased the pizza but told Mr. Mo that her mother had purchased it. ( Id. ) Plaintiff called her mother on a cell phone and turned on the speaker, and plaintiff's mother explained to Mr. Mo that she had come in the restaurant the night before and placed a big order. ( Id. at 43.) Mr. Mo remembered the order and stated that plaintiff's mother should have called the previous night, when the pizza made her family sick. ( Id. ) Plaintiff testified that, throughout this interaction, Mr. Mo was cursing and that Mr. Mo then told plaintiff he would not "take the f'ing pizzas back." ( Id. at 44-45.) Howard responded by asking the officers why they were allowing Mr. Mo to disrespect him and his mother. ( Id. at 45-46.) Howard told the officers that if he and plaintiff were cursing, the officers would have already arrested them. ( Id. at 46.)

Mr. Mo continued to tell plaintiff and Howard that he would not take the pizza back, and when he said "y'all can do whatever the fuck you want to do with the pizza, " Howard threw the pizza box[5] onto the parking lot, and pieces of pizza fell out of the box in several different directions. ( Id. at 49.) Polk and Rosato pulled out pepper spray and told Howard to calm down or else they would take him to jail. ( Id. at 50.) Howard refused to pick up the pizza, and by this point, he was cursing and very tense. ( Id. at 51.) According to plaintiff, the situation had escalated at this point, so plaintiff attempted to calm Howard down by telling him to get in the car, which he then did. ( Id. at 52.) Plaintiff acknowledged that Howard "blew up at the wrong time... and [acted in a way] he shouldn't have." ( Id. )

Plaintiff told the officers she would pick up the pizza, and Polk responded that he wanted Howard "to go get the damn pizza." ( Id. at 53, 55.) Plaintiff nevertheless picked up a few pieces of pizza, put them back in the box, and put the box in the trunk of her car. ( Id. at 56-58.) Polk told her "to pick up all the fucking pieces of pizza." ( Id. at 56-57) Because some pieces were farther away, plaintiff responded that a stray dog could eat the rest. ( Id. at 57.) Plaintiff testified that, during this time, "there was no traffic in the parking lot where we were speaking with the officers." (Doc. 26-1 ¶ 4.) Neither Polk nor Rosato asked plaintiff or Howard to move, and plaintiff's car remained parked in a marked parking space. ( Id. ) After picking up the pizza, plaintiff attempted to get in her car. (Doc. 22-4 at 60.) As she put one foot in the car, she told her mother, who was still on the phone, that the situation was "fucked up." ( Id. ) Plaintiff spoke to the officers and her mother using a normal tone of voice. (Doc. 26-1 ¶ 2.)

At this time, Polk approached plaintiff, pulled her out of the car, and told her that she was going "to fucking jail." (Doc. 22-4 at 62-63.) Plaintiff asked why, but Polk did not respond, and he then slapped plaintiff's face, causing her glasses to fall off, and pepper sprayed her. ( Id. at 63-64.) According to plaintiff, she did not resist Polk and could not see as a result of the pepper spray. ( Id. at 64.) Rosato ran over to ask what was happening, and after Polk told him plaintiff was going to jail, Rosato handcuffed plaintiff. ( Id. at 65, 67, 69.) Even though plaintiff could not see, she could differentiate Polk and Rosato by their voices. ( Id. at 65-66.) Plaintiff testified that, once Rosato handcuffed her, Polk continued to pepper spray her. ( Id. at 70.) Plaintiff tried to avoid the pepper spray by moving her head down, but she did not resist arrest with her arms, which were handcuffed. ( Id. at 70-71.) Howard, who was still sitting in the car at this time, had picked up plaintiff's phone and was telling plaintiff's mother that police were arresting plaintiff. ( Id. at 66.)

At this point, Rosato was behind plaintiff, and according to plaintiff, probably lost his balance as he was backing away from the pepper spray, which caused Rosato and plaintiff to fall. ( Id. at 73.) Plaintiff fell on top of Rosato, and Polk fell on top of plaintiff. ( Id. at 72.) According to plaintiff, Polk then stood up, and plaintiff felt a sharp pain, indicating that Polk kicked her. ( Id. at 74-75.) As plaintiff began screaming for help, Howard exited the car, and the officers told him to get back. ( Id. at 75-76.) When plaintiff asked the officers to call 911, they responded by telling her again that she was going to jail. ( Id. at 78.) Plaintiff yelled for Howard to call 911, which he did, and an ambulance arrived some time thereafter. ( Id. at 79, 82.) The officers arrested Howard after he called 911, and by this time, plaintiff was lying face down on the ground. ( Id. at 79-80.)

When the paramedics arrived, plaintiff was placed on a stretcher and transported by ambulance to Cooper Green Hospital. ( Id. at 83.) Plaintiff was released from Cooper Green without any medical treatment, and Polk and Rosato then drove her to the UAB psych ward for another medical exam. ( Id. at 84-85, 89-90.) Sometime thereafter, plaintiff was booked into jail on the charge of disorderly conduct and released around 12:00 or 1:00 p.m. the next day. ( Id. at 91, 100-01.) After seeing her primary physician, a magnetic resonance imaging ...

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