United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE, Chief District Judge.
This matter is before the Court on the four remaining defendants' motions for summary judgment. (Docs. 117, 123, 128, 133). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 118-21, 124-27, 129-32, 134-37, 141, 146-48, 150, 152, 155-57, 162-64), and the motions are ripe for resolution. After careful consideration, the Court concludes that two motions for summary judgment are due to be granted in their entirety and that the other two motions are due to be granted in part and denied in part.
In the hours before dawn on May 1, 2012, defendant police officers Christopher McCann and John Jackson responded to a domestic violence call involving Gregory Rachel ("Greg"). They were later joined by a third defendant, Sergeant Jerald Ripple, and a former defendant, Lieutenant Edward Elia. All four are employed by the defendant City of Mobile ("the City"). The encounter ended with Greg's death. His widow ("Amy") brings this action as administratrix of his estate.
The second amended complaint, (Doc. 115), consists of two counts. Count III alleges that the three individual defendants violated Greg's constitutional rights by using excessive force to effect his arrest and by being deliberately indifferent to his serious medical need. Count IV is a state claim brought against all four defendants for wrongful death.
With respect to Count III, the individual defendants argue they are entitled to qualified immunity in their individual capacities. With respect to Count IV, they argue they are entitled to peace officer and/or state-agent immunity. The City argues that it partakes of the individual defendants' peace officer immunity and that in any event the plaintiff cannot establish its liability under Alabama Code § 11-47-190.
Summary judgment should be granted only if "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 party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by "negating an element of the non-moving party's claim"; or (2) by "point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden." Id. "Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial." Id.; accord Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
"When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence... that would entitle it to a directed verdict if not controverted at trial. [citation omitted] In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof, no reasonable jury could find for the nonmoving party." United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) (emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
"If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made." Fitzpatrick, 2 F.3d at 1116; accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.
"If, however, the movant carries the initial summary judgment burden..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact." Fitzpatrick, 2 F.3d at 1116. "If the nonmoving 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." Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted); see also Fed.R.Civ.P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may... consider the fact undisputed for purposes of the motion....").
In deciding a motion for summary judgment, "[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant...." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). This standard applies fully in the qualified immunity context. E.g., Gilmore v. Hodges, 738 F.3d 266, 272 (11th Cir. 2013).
There is no burden on the Court to identify unreferenced evidence supporting a party's position. Accordingly, the Court limits its review to the exhibits, and to the specific portions of the exhibits, to which the parties have expressly cited. Likewise, "[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment, " Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995), and the Court accordingly limits its review to those arguments the parties have expressly advanced.
In deciding a motion for summary judgment, "[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant...." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). Therefore, the plaintiff's version of the facts (to the extent supported by the record) controls, though that version can be supplemented by additional material cited by the defendants and not in tension with the plaintiff's version.
A. Evidentiary Challenges.
The City has filed an objection to four of the plaintiff's exhibits and a motion to strike one of the four. (Docs. 158, 159). The Court, construing the objection as a motion to exclude, provided the plaintiff an opportunity to respond to both motions, which she did. (Docs. 176, 177). Because the City challenges the declaration of George Kirkham in both motions, the Court considers it only under the City's motion to strike, which contains a more detailed argument.
1. Motion to exclude.
The Court agrees that the plaintiff cannot rely on the recorded statement of Kristie Adams, (Doc. 148-2), because it is unsworn. "Unsworn statements do not meet the requirements of Fed. Rule Civ. Proc. 56(e) and cannot be considered by a district court in ruling on a summary judgment motion." Carr v. Tartangelo, 338 F.3d 1259, 1273 n.26 (11th Cir. 2003) (internal quotes omitted); accord Southern Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1248 n.8 (11th Cir. 2009). As this Court has noted, "[w]hile these cases were decided under a previous version of Rule 56, the Eleventh Circuit has continued to apply the rule under the current version." Jackson v. Lee, 2014 WL 4829552 at *2 n.5 (S.D. Ala. 2014) (citing cases). The plaintiff, who challenges the City's hearsay objection to Adams' statement but not its objection to the statement's unsworn nature, (Doc. 176 at 1-3), has offered the Court no reason to stray from its decision in Jackson.
The City objects to certain portions of Tiffany Brown's declaration as hearsay. Brown heard Greg say, "Don't do it again, " and "Stop, " and she heard one of the officers say, "Man, what is wrong with you?" Brown also said to her husband, "They are beating him!" (Doc. 148-8). Hearsay is a statement that "the declarant does not make while testifying at the current trial or hearing" and that "a party offers in evidence to prove the truth of the matter asserted in the statement." Fed.R.Evid. 801(c). A statement by a party opponent offered against that party is not hearsay. Id. Rule 801(d)(2)(A). The officers are party opponents and Brown is the declarant, so their statements cannot be hearsay. Greg's statements may be hearsay,  but they fall easily within the "excited utterance" exception to hearsay, since they were made "relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused." Fed.R.Evid. 803(2). Even if they did not, they would be admissible under Rule 807.
The City also objects to Brown's statement that, "[i]n [her] opinion, the officers were hitting the man completely unnecessarily, " as an opinion she is unqualified to provide. The plaintiff concedes that Brown is not an expert on the use of force but argues she may give a lay opinion. (Doc. 176 at 4-5). A lay opinion must be "helpful to clearly understanding the witness's testimony or to determining a fact in issue." Fed.R.Evid. 701(b). Brown's factual testimony is quite clear as to what she observed, including statements that she did not observe Greg fight, threaten, struggle with or oppose the officers, so her opinion is not helpful to clearly understanding her testimony. Even if the "necessity" of force is a fact in issue, Brown's factual testimony provides every basis for resolving the issue, and her personal opinion as to its proper resolution does not advance its determination.
The City objects to a "report of interview" of Nicole Phillips, (Doc. 148-13 at 4), arguing it is hearsay because it is in the form of an investigator's report of what Phillips told him. Phillips, however, declared under penalty of perjury that the interview account is true and correct, ( id. ), making it her own statement. At any rate, the document contains nothing that is not also contained in Phillips' declaration, ( id. at 2-3), to which the City does not object.
In summary, the motion to exclude is granted with respect to the unsworn statement of Kristie Adams and the opinion of Tiffany Brown, denied as moot with respect to the declaration of George Kirkham, and denied in all other respects.
2. Motions to strike.
The plaintiff has offered evidence from Kirkham, its police operations expert, in three formats: (1) letter report; (2) deposition testimony; and (3) declaration. (Doc. 148-20 to -22). The City moves to strike the declaration on the grounds that it represents an untimely expansion of Kirkham's opinions and support therefor. The plaintiff describes the declaration as presenting the opinions expressed in the report and deposition testimony, only "in a more concise and readable format." (Doc. 177 at 8). The plaintiff further asserts that Kirkham's report and deposition, independent of his declaration, "provid[e] support for Plaintiff's opposition brief." (Id. ). Because the plaintiff represents that Kirkham's declaration does not affect the proper resolution of the motions for summary judgment, the Court will not consider it, and the motions to strike the declaration are thus denied as moot.
B. Statement of the Evidence.
McCann and Jackson were dispatched to the Rachel home at approximately 3:11 a.m. in response to Amy's request for 911 assistance. Amy had fled to a neighbor's house across the street after Greg assaulted her, and the officers spoke with her there. She advised them that Greg had "flipped out, " was "talking crazy" and had tried to kill her by breaking her neck. The officers also observed marks on Amy's face and an injury to her hand.
The officers recognized that Greg was an emotionally disturbed person. They intended to enter the Rachel home and arrest Greg for the crime of second degree domestic violence. However, Sergeant Ripple told them by telephone not to approach the residence but to secure the scene until he and Lieutenant Elia arrived.
Several minutes later, but before backup arrived, Greg exited the front door of the residence and stood in the front yard, a cell phone in one hand and a drink in the other. He raised his hands to the sky and screamed "weird stuff, " including repeatedly crying out to "protect [him] from Obama." He then threw away his phone, set down his drink, and lay on his back in the yard, still yelling.
The officers at this point crossed the street and approached Greg, tasers drawn, loudly ordering him to stay on the ground. But Greg returned to his feet, the officers five to ten feet away, and assumed a fighting pose or aggressive stance. The officers yelled at Greg repeatedly to get back on the ground, but he began walking towards them purposefully and with his fists closed, still yelling crazy things, including about protecting him from Obama. The officers, tasers still drawn, repeatedly yelled at Greg to stop where he was and to get on the ground. Greg did not comply, and Jackson tased him. Greg went to the ground but got right back up, seemingly unfazed, and McCann quickly tased him. Greg again went to the ground and again immediately got back up. He began pulling out the probes as he stumbled towards the street, the officers closely following while repeatedly ordering Greg to get on the ground. Near a ditch paralleling the street, Greg fell to the ground and was on his back. At or about this time, McCann called in a "Code Zebra, " which is required by department policy when a taser is deployed and which prompts the dispatcher to send paramedics.
From his supine position near the ditch, Greg rose to his knees, back erect, and moaned, "Don't do it again." One of the officers responded, "Man, what is wrong with you?" The officers then discharged their tasers two to five times, but without apparent effect. Two of these tases were in "touch-tase" mode. Jackson then tried to wrestle Greg to the ground while Greg tried to punch at him, and McCann struck Greg several times in the thighs with his baton. Greg remained on his knees and raised his hands in a submissive manner, moaning "Stop."
At that point, one of the officers struck Greg near the shoulder blades with a baton, and Greg went down on all fours. The officer struck Greg again in the same place, and Greg went completely prone, yelling, "Stop!" Greg from that point was totally submissive and did not kick, struggle or do anything to get up or oppose the officers. Nevertheless, both officers began kicking him. They kicked him at least two or three times each, including at least once each in the head. They also hit him many times with their fists and batons, including at least three to five times in the legs with a baton. The officers appeared agitated by Greg's resistance.
After this, the officers attempted to handcuff Greg, but his arms were under his body and he resisted their efforts. Using a baton for leverage, Jackson was able to force Greg's left arm out from under his body. Jackson then handcuffed Greg's left hand and pulled his left arm behind his back. McCann, however, could not extract Greg's right arm. Because they were getting tired and Greg was still struggling, the officers sat, knelt or lay on the prone Greg to await the arrival of backup. Greg cursed the officers, yelled at them to get off him, and squirmed so forcefully as to rotate his body 180 degrees.
When Sergeant Ripple arrived, Greg was still lying prone on the ground. McCann was on Greg's legs to secure them, and Jackson was on Greg's left side. Ripple moved to the right side and tried to dislodge Greg's right arm from under his body, but Greg locked it in and refused commands to surrender it. Ripple then punched Greg in the lower back three to five times in an effort to knock the wind out of him and distract him enough to allow Ripple to pull out his right arm. These blows had no effect on Greg. Lieutenant Elia then arrived and tried three times to apply a brachial stun to Greg's neck, but this was ineffective because he kept hitting Ripple on his downswing. Using his knee as leverage on Greg's right shoulder, Ripple was then able to extract Greg's right arm and complete handcuffing within a minute or so of his arrival.
Once handcuffed, Greg continued to kick and try to get the officers off him, prompting Riddle to have him hog-tied. While McCann put his knee in Greg's upper back to keep him from rolling over, Ripple retrieved leg shackles and applied them to Greg's ankles. He then connected the handcuffs to the leg shackles with a second set of handcuffs. The result of this four-point restraint was to bend Greg backwards into a "U" or "V" position.
The defendants left Greg on his stomach in the hog-tied position, and one officer sat on him for several minutes in that position. At some point Greg yelled, "Gestapo!, " "seized, " and went suddenly quiet and unconscious. All three officers observed this. Greg, who never moved again, remained passed out for five minutes, during which time none of the officers checked on him or his breathing. They then lifted him by his limbs and carried him, face down, towards a patrol car. When they set him down to rest, one of them questioned if Greg was still breathing. Ripple checked and discovered he was not, and that his pupils were dilated.
A neighbor watching from across the street saw the officers carrying Greg and noticed he was completely limp. She told her husband she thought Greg was "playing dead." Her husband, an EMT,  left the house with no equipment, walked across the road, identified himself as an EMT, and asked the officers if they needed any help. Greg was still lying face down. The EMT rolled Greg on his back and checked for pulse but found none. He asked the officers to remove the handcuffs and leg shackles, which they did. He then began chest compressions, unsuccessfully. After the EMT began the compressions, Ripple called for paramedics. At no previous point did any of the officers call for medical assistance.
II. Qualified Immunity.
"[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages 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 (1982). "[T]he burden is first on the defendant to establish that the allegedly unconstitutional conduct occurred while he was acting within the scope of his discretionary authority." Harbert International v. James, 157 F.3d 1271, 1281 (11th Cir. 1998). The burden then shifts to the plaintiff to show that the defendant's conduct "violated a clearly established statutory or constitutional right." Grayden v. Rhodes, 345 F.3d 1225, 1231 (11th Cir. 2003).
A. Discretionary Authority.
"[T]he burden is first on the defendant to establish that the allegedly unconstitutional conduct occurred while he was acting within the scope of his discretionary authority.... If, and only if, the defendant does that will the burden shift to the plaintiff to establish that the defendant violated clearly established law." Harbert, 157 F.3d at 1281 (emphasis added). The reason is that an official acting outside the scope of his discretionary authority "ceases to act as a government official and instead acts on his own behalf, " so that "the policies underlying the doctrine of qualified immunity no longer support its application." Id.
For purposes of federal qualified immunity analysis, a defendant acts within his discretionary authority when "his actions were undertaken pursuant to the performance of his duties and within the scope of his authority." Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988) (internal quotes omitted). For this inquiry, "[w]e ask whether the government employee was (a) performing a legitimate job-related function (that is, pursuing a job-related goal), (b) through means that were within his power to utilize." Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004).
The first prong of this test requires that the defendant "have been performing a function that, but for the alleged unconstitutional infirmity, would have fallen within his legitimate job description." Holloman, 370 F.3d at 1266 (emphasis omitted). "The inquiry is not whether it was within the defendant's authority to commit the allegedly illegal act, " but "whether the act complained of, if done for a proper purpose, would be within, or reasonably related to, the outer perimeter of an official's discretionary duties." Harbert, 157 F.3d at 1282 (internal quotes omitted).
As for the second prong, "[e]ach government employee is given only a certain arsenal' of powers with which to accomplish her goals." Holloman, 370 F.3d at 1267. "Pursuing a job-related goal through means that fall outside the range of discretion that comes with an employee's job is not protected by qualified immunity." Id.
The quantum and quality of evidence necessary to meet the defendant's burden "vary in proportion to the degree of discretion inherent in the defendant's office, " Harbert, 157 F.3d at 1282 (internal quotes omitted), but ordinarily "there must be a showing by competent summary judgment materials of objective circumstances that would compel th[e] conclusion" that the defendant acted within his discretionary authority. Id. (internal quotes omitted). Certainly "[a] bald assertion that the acts were taken pursuant to the performance of duties and within the scope of duties will not suffice" to meet the defendant's burden of proof. Id. (internal quotes omitted). However, when it is "undisputed... that the [defendants] were acting ...