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Wardlow v. Whiten

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

March 29, 2017

LARRY WARDLOW, Plaintiff,
v.
MICHAEL WHITEN, et al., Defendants.

          MEMORANDUM OPINION [1]

          JOHN H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE

         Plaintiff Larry Wardlow (“Wardlow”) initiated this action against Officer Michael Whiten alleging federal claims pursuant to 42 U.S.C. § 1983 for excessive force, unlawful arrest, and malicious prosecution and state law claims for assault and battery and malicious prosecution. (Doc. 1). Wardlow amended his complaint to include allegations against Birmingham Chief of Police A.C. Roper in all but the state law assault and battery claim.[2] (Doc. 3). Defendants now move for summary judgment. (Doc. 35). The motion is fully briefed and ripe for review. (Docs. 36, 37, & 38). For the reasons stated below, Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART.

         I. Standard of Review

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper if the pleadings, the discovery, and disclosure materials on file, and any affidavits “show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” “Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 447 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks omitted). A dispute about a material fact 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).

         The Court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, (1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual disputes will be resolved in Plaintiff's favor when sufficient competent evidence supports Plaintiff's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276-78 (11th Cir. 2002) (a Court is not required to resolve disputes in the non-moving party's favor when that party's version of the events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mtn. Park, Ltd. V. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

         II. Summary Judgment Facts[3]

         Michael Whiten (“Whiten”) has been an officer with the Birmingham Police Department for eighteen years. (Doc. 35-1 at 4, 21). He has been arrested once, for assault and harassment following a bar fight with a former coworker, Chris Johnson, who had started dating Whiten's ex-girlfriend. (Id. at 21). Whiten was put on administrative duty. (Id.). Several months later, Johnson approached Whiten in a parking lot and they exchanged words. (Id.). After the conversation in the parking lot, Johnson filed harassment charges against Whiten. (Id.). Whiten was found guilty after a trial and placed on administrative duty for approximately sixteen months; the charges against him were nolle prossed after he attended counseling sessions. (Id. at 23, 43-44).

         In 2013, Whiten also worked security for Black Market Bar and Grill (“Black Market”), a private business, every other Friday evening. (Id. at 4-6). On Friday, March 1, 2013, Whiten worked his usual shift, from 8:30 a.m. to 5:00 p.m., in the detective bureau at the police department. (Id. at 6). He then went home until he had to start his security shift at Black Market at approximately 9:00 or 10:00 p.m. (Id. at 6-7). Once at Black Market, per his usual routine, Whiten poured himself a soda and stood at the end of the bar. (Id. at 7). Approximately forty-five minutes after he arrived, Whiten first saw Wardlow sitting a few barstools down from where he was standing. (Id.). To his knowledge, Whiten had not met Wardlow before that evening. (Id. at 20).

         The same day, Wardlow returned home from a trucking job and did some chores. (Doc. 36-3 at 7). At approximately 10:15 p.m., Wardlow walked a few blocks from his apartment to Black Market, where he had never been. (Id. at 7, 16). He took a seat near the end of the bar and, after ordering a beer, he introduced himself and made small talk with the people sitting around him. (Id. at 7-8).

         After periodically making eye contact with him, Wardlow asked if Whiten was drinking while on duty. (Doc. 35-1 at 8; doc. 36-3 at 8). Wardlow believed Whiten was drinking alcohol, and Whiten never told Wardlow he was not drinking. (Doc. 36-3 at 8).[4] Whiten grew angry that Wardlow had inquired about his drinking and responded that he could have Wardlow arrested for whatever he wanted. (Id.). Sensing possible tension, Wardlow excused himself to the restroom for a few minutes before returning to his seat, hoping things with Whiten had cooled. (Id. at 10).[5]

         When Wardlow returned to his seat from the restroom, Whiten walked out of the bar on his phone, and Wardlow thought he was leaving for the evening. (Doc. 36-3 at 11). Whiten returned a few minutes later with a blonde woman. (Id.). The blonde woman sat down beside Wardlow, who said hello to her. (Id.). At that point, Whiten “blew up” at Wardlow and made physical contact with him, causing Wardlow's face to hit the bar. (Id.). Wardlow did not remember leaving the bar or fighting Whiten, but the two somehow ended up outside, where Whiten picked up Wardlow, tackled him, and hit him in the face two or three times. (Doc. 36-1 at 8; doc. 36-3 at 12).[6]

         Wardlow remembered waking up in a CT scan machine, but he did not remember going to the hospital. (Doc. 36-3 at 12).[7] When he woke up and started moving, the nurse told him to remain still because they were scanning his fractured eye socket. (Id.). Wardlow could recalled speaking to the blonde woman and having his face smashed into the bar, which made him upset; he then got up, hobbled out of the room, and shouted at Whiten, demanding to know why Whiten had attacked him. (Id. at 14.). When Wardlow told Whiten he would be in trouble for attacking him when others saw the security footage, Whiten laughed and told him that the bar only had security videos at the front door, so the video did not get anything on him. (Id.). Whiten attempted to escort Wardlow back into the hospital room but both men “stuck [their] hands out, ” after which Whiten tripped Wardlow and handcuffed him. (Doc. 36-3 at 15).[8]

         Wardlow screamed at the bouncers and at Whiten, shouting at Whiten that he would wait on the sidewalk and would get him when his shift ended. (Id. at 9). After a few minutes of this behavior, Whiten walked outside to place Wardlow under arrest; he grabbed Wardlow by the left bicep and then Wardlow grabbed Whiten's throat with his right hand. (Id.). Whiten immediately let go of Wardlow's arm, at which point Wardlow used both arms to put Whiten in a headlock. (Id.). Whiten grabbed Wardlow's legs and tackled him to the ground; Whiten landed on top of him and struck him in the face maybe two or three times. (Id.). When Wardlow was still, Whiten rolled him over onto his stomach and handcuffed him. (Id.) Whiten then called for backup and for medics to examine Wardlow's bloody nose. (Id. at 10).

         Whiten left the hospital at approximately 6:00 a.m., after another officer came to take Wardlow to jail. (Doc. 35-1 at 18; doc. 36-3 at 16). Wardlow remained in jail for about one day. (Doc. 36-3 at 17). Wardlow ultimately pleaded guilty to police harassment for the incident in the hospital. (Doc. 36-3 at 16-17; doc. 36-6).

         III. Analysis

         A. Municipal Liability - Count A

         Defendants argue the City, through Chief Roper in his official capacity as Chief of Police, cannot be held liable under Count A, Wardlow's § 1983 claim for unreasonable or excessive force. (Doc. 35 at 7). “[A] municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v. Dep't of Soc. Serv.,436 U.S. 658, 691 (1978). This means that, “to impose liability on a municipality under § 1983[, a plaintiff must] identify a municipal ‘policy' or ‘custom' that caused the plaintiff s injury.” Bd. of County Com'rs of Bryan County, Okl. v. ...


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