United States District Court, S.D. Alabama, Southern Division
ANN MITCHELL, Personal Representative of the Estate of Ray Anson Mitchell, Deceased, Plaintiff,
CITY OF MOBILE, ALABAMA, et al., Defendants.
V. S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Steven Chandler's
(“Chandler”) Motion for Summary Judgment (Doc.
73) and Memorandum in Support (Doc. 75); Defendant Miranda
Wilson's (“Wilson”) Motion for Summary
Judgment (Doc. 78) and Memorandum in Support (Doc. 80); and
Defendant City of Mobile, Alabama's (“the
City”) Motion for Summary Judgment (Doc.
Plaintiff Ann Mitchell (“Plaintiff”) responded in
opposition (Doc. 89), to which Chandler and Wilson replied
(Doc. 94 and Doc. 99, respectively). The City adopted
Chandler's and Wilson's replies. (Doc. 97). Also
before the Court is a joint motion to strike the expert
report of retired Judge LaDoris Cordell filed by Defendants.
(Doc. 98). For the reasons stated below, the Court GRANTS the
motions for summary judgment filed by Defendants and GRANTS
the motion to strike the expert report of retired Judge
NATURE OF THE CASE
case arises out of a police shooting that took the life of
Ray Anson Mitchell (“Mitchell”). His mother,
Plaintiff Ann Mitchell, personal representative of
Mitchell's estate, brought the present action against the
police officers involved, Chandler and Wilson, and their
employer, the City. The Complaint contains five separate
counts. See (Doc. 1). Plaintiff alleges in Count I,
pursuant to 42 U.S.C. § 1983, that Chandler and Wilson
“unlawfully used excessive, unreasonable[, ] and
unnecessary deadly force” in violation of “the
Fourth, Fifth, and/or Fourteenth Amendment to the United
States Constitution.” Id. at 5. From the best
the Court can surmise, Count II alleges Chandler and Wilson
assaulted and battered Mitchell, while a third officer,
Patrick Palmer, neglected, or refused to prevent, their
actions. Id. at 5-6. Count III alleges the City
conducted an improper investigation into the death of
Mitchell. Id. at 6. Count IV alleges the City failed
to properly train, investigate, supervise, or discipline its
officers. Id. at 6. Count V alleges Defendants are
liable for the wrongful death of Mitchell under Alabama law.
Id. at 7.
on, the City moved to dismiss Count Five against it due to
Plaintiff's noncompliance with Alabama Code §
11-47-23 (“All claims against the municipality …
shall be presented to the clerk for payment within two years
from the accrual of said claim or shall be barred. Claims for
damages growing out of torts shall be presented within six
months from the accrual thereof or shall be barred.”)
and § 11-47-192 (“No recovery shall be had against
any city or town on a claim for personal injury received,
unless a sworn statement be filed with the clerk by the party
injured or his personal representative in case of his death
stating substantially the manner in which the injury was
received, the day and time and the place where the accident
occurred and the damages claim.”) (Doc. 9). The Court
granted the motion and dismissed Count Five inasmuch as it
applied to the City. (Doc. 21). Defendants now move for
summary judgment on the remaining counts. The parties having
fully briefed the issues, this matter is ripe for
MOTION TO STRIKE
addressing the substantive issues of Defendants' summary
judgment motions, it is necessary to decide the joint motion
to strike Plaintiff's expert report filed by Defendants.
(Doc. 98). Defendants offer three bases to strike the expert
report of retired Judge LaDoris Cordell. First, Defendants
contend that the expert report of retired Judge Cordell does
not comply with the basic requirements of an affidavit or
declaration and, therefore, is improper. Id. at 1.
Second, Defendants contend that expert reports are
inadmissible at the summary judgment stage. Id. at
2. Third, Defendants contend that the expert report of
retired Judge Cordell is untimely under the Federal Rules of
Civil Procedure and, therefore, inappropriate evidence upon
which she may overcome summary judgment. Id.
Furthermore, Defendants argue that, due to her untimely
disclosure, Plaintiff should be barred from calling retired
Judge Cordell as an expert witness should this matter proceed
to trial. Id. at 7. Plaintiff filed no response to
Defendants' motion. Since this issue can be decided on
Defendants' first and third bases, the Court does not
address Defendants' contention that expert reports are
inadmissible at the summary judgment stage.
Rule of Civil Procedure 26(a)(2) “requires a party to
disclose to the other parties the identity of any expert
witness it may use at trial to present evidence and
‘[e]xcept as otherwise stipulated or directed by the
court, this disclosure [must] … be accompanied by a
written report-prepared and signed by the
witness.'” OFS Fitel, LLC v. Epstein, Becker
and Green, P.C., 549 F.3d 1344, 1360-61 (11th Cir. 2008)
(citing Fed.R.Civ.P. 26(a)(2)). Disclosure of the expert
report must comply with “the times” and
“the sequence that the court orders.”
Fed.R.Civ.P. 26(a)(2)(D). Compliance with a set deadline is
necessary because “the expert witness discovery rules
are designed to allow both sides in a case to prepare their
cases adequately and to prevent surprise, compliance with the
requirements of Rule 26 is not merely aspirational.”
Cooper v. S. Co., 390 F.3d 695, 728 (11th Cir.
2004), overruled on other grounds, Ash v. Tyson
Foods, Inc., 546 U.S. 454, 457-58 (2006).
party fails to make expert disclosures in accordance with a
court's order, “the party is not allowed to use
that information or witness to supply evidence on a motion,
at a hearing, or at trial, unless the failure was
substantially justified or harmless.” Fed.R.Civ.P.
37(c)(1). Substantial justification is “justification
to a degree that could satisfy a reasonable person that
parties could differ as to whether the party was required to
comply with the disclosure request.” Hewitt v.
Liberty Mut. Grp., Inc., 268 F.R.D. 681, 682 (M.D. Fla.
2010). A failure to timely make the required disclosures is
harmless when there is no prejudice to the party entitled to
receive disclosure. Id. at 683. The party failing to
comply with Rule 26(a) bears the burden of establishing that
its nondisclosure was either substantially justified or
harmless. Id. It is within a court's discretion
to preclude a party from relying on an expert's report to
overcome summary judgment and preclude said expert from
testifying at trial when the party fails to comply with Rule
26(a)(2) or carry its burden under Rule 37(c)(1). Reese
v. Herbert, 527 F.3d 1253, 1266 (11th Cir. 2008).
the original scheduling order required Plaintiff provide any
expert disclosure to Defendant no later than April 22, 2016.
(Doc. 32, p. 2). Upon motion by Plaintiff (Doc. 54), the
Court extended the initial deadline to allow Plaintiff to
file any expert disclosure no later than July 22, 2016 (Doc.
58, p. 1). Just three days prior to this extended deadline,
Plaintiff again moved for an extension of, among other
things, her expert report disclosure deadline due to medical
issues her counsel faced. (Doc. 71). The Court extended
Plaintiff's Rule 26(a)(2) deadline until September 30,
2016, concluding that such a deadline was sufficient for
Plaintiff to disclose any expert report for any expert
Plaintiff had presumably garnered. (Doc. 72, p. 2). Indeed,
it at least appears, based upon Defendants'
representation, that Plaintiff had already garnered retired
Jude Cordell as an expert witness as far back as December
2015 since her initial discovery disclosure listed retired
Judge Cordell as an expert witness. (Doc. 98, p. 4 n.1).
However, Defendants note all Plaintiff provided was the
expert's name and curriculum vitae. Id.
Plaintiff disclosed, at that time, retired Judge Cordell had
yet to reach a final opinion. Id.
state that September 30, 2016, came and went with no expert
disclosure by Plaintiff. (Doc. 98, p. 3). It was not until
Plaintiff filed her response to Defendants' motions for
summary judgment that she provided retired Judge
Cordell's expert report, approximately ten weeks after
the September deadline. (Doc. 93-3, pp. 1-14). Plaintiff
cannot show reasonable justification for missing the
September deadline. Her awareness of her required disclosure
compliance is evidenced by the fact that she requested the
deadline be extended on two separate occasions. See
Hewitt, 268 F.R.D. at 682. Additionally, Plaintiff's
untimely expert disclosure cannot be said to be harmless or
render no prejudice upon Defendants. It was reasonable for
Defendants to move for summary judgment with the expectation
Plaintiff abandoned any intentions to rely on expert evidence
given she failed to meet the necessary deadline. But now,
Plaintiff attempts to refute Defendants' position based
upon an expert conclusion Defendants were afforded no
opportunity to cross-examine or refute. Moreover, several
months have passed since Defendants moved to strike retired
Judge Cordell's expert report and Plaintiff has offered
no basis for the Court to extend its September 30, 2016,
deadline. Therefore, the Court finds Plaintiff failed to show
that its nondisclosure was either substantially justified or
even if the report were timely, its still suffers another
shortcoming. A review of the report provided shows it neither
names nor is signed by the author, (presumably Judge
Cordell). The only indication that retired Judge Cordell
authored the report is Plaintiff's table of contents to
her evidentiary material provided in opposition to summary
judgment. (Doc. 92, p. 2). Therefore, the Court concludes
that Plaintiff's expert report fails to comply with the
minimum content requirements of Rule 26(a)(2). Given this,
the Court GRANTS the motion to strike the expert report of
retired Judge LaDoris Cordell filed by Defendants. The report
will not be considered in deciding the present motion, nor
would retired Judge LaDoris Cordell be permitted to testify
if this matter were to proceed to trial.
FACTUAL BACKGROUND 
shooting in question occurred during the pre-dawn hours of
September 6, 2013, at the home of Kevin and Yansean Frye,
located at 785 Bonneville Drive, Mobile, Alabama. That date
was not Mitchell's first time at the Frye residence. And
Mitchell was no stranger to the Fryes. During most, if not
all, of Mitchell's childhood, Mrs. Frye was married to
Mitchell's uncle, Marion Malley, and Mitchell would
regularly visit the Frye residence in order to spend time
with his cousin M.J., Mrs. Frye's son. (Doc. 81-3, pp.
5-6). But M.J. grew up and moved out. Mitchell struggled to
understand that his cousin no longer resided at the
Bonneville Drive home. For instance, in May 2013, Mitchell
appeared, uninvited, at the Frye residence looking for M.J.
Mr. Frye attempted to explain to Mitchell that M.J. no longer
resided there and requested he leave. Mitchell, however,
refused the request. Not wanting an altercation, Mr. Frye
called for police assistance in having Mitchell removed from
the premises. (Doc. 81-2, pp. 5-7).
morning in question, Mr. Frye awoke due to shoulder pain, got
out of bed, and went to take a pain reliever. (Doc. 81-2, pp.
18-19). While trying to find relief for his shoulder, Mr.
Frye heard what sounded like someone trying to open his front
door. Id. at 4, 17. Upon looking out the picture
window to the left of the front door when facing the house,
Mr. Frye saw Mitchell standing on his front porch with a
knapsack-type bag over his shoulder. Id. at 17.
Mitchell did not knock or announce his presence. Instead, Mr.
Frye watched Mitchell turn, walk off the porch, and begin
making his way to the back of the Frye residence.
Id. Mr. Frye followed Mitchell's progress
window-to-window until Mitchell reached Mr. Frye's
backyard. Once in the backyard, Mitchell sat down in a corner
by the air conditioning unit. Id. at 18. Mr. Frye
woke his wife and asked her to “call somebody to come
get” Mitchell. Id.
Mitchell's presence, Mrs. Frye called Mitchell's aunt
who in turn tried to contact Plaintiff but was unable to do
so. (Doc. 81-3, pp. 11-12). When questioned about why she
feared Mitchell, Mrs. Frye explained that she thought
Mitchell “had lost his mind” and kept coming back
to her house uninvited. (Doc. 81-3, p. 10; Doc. 92-2, p. 2;
Doc. 92-3, p. 3). Mrs. Frye explained that Mitchell had not
exhibited this mental problem as a child but, later in life,
“went somewhere and came back” not the same.
(Doc. 81-3, p. 10; Doc. 92-2, p. 3).
Ms. Frye was unable to reach Mitchell's mother, she
called the Mobile Police Department (“the MPD”).
She informed the MPD dispatcher that a man was on her
property whose “mind took a leave of absence” and
requested an officer “come get him to leave.”
(Doc. 81-3, p. 12). At approximately 4:30 a.m. September 6,
2013, Chandler was dispatched as the primary unit responding
to Mrs. Frye's call, and Wilson was dispatched as the
backing unit. (Doc. 81-4, pp. 6, 20). Being less than a mile
from the Frye residence, Chandler was the first officer on
scene. Id. at 5. Pulling up to the Frye residence,
Chandler made contact with Mrs. Frye, who informed him of the
situation, Mitchell's location, and discussed
Mitchell's mental issues with Chandler. (Doc. 81-4, p. 7;
Doc. 81-3, pp. 14, 34). Although Mitchell's “mind
took a leave of absence” and he needed to be probated,
Mrs. Frye explained that Mitchell had not disturbed or harmed
anyone. (Doc. 81-3, pp. 14, 15, 34). But Mitchell scared Mrs.
Frye, so she wanted the officers to remove Mitchell from her
property. Id. at 16.
informed Mrs. Frye the best he could do is arrest Mitchell
for trespassing if she was willing to sign for a trespassing
warrant with the magistrate. (Doc. 81-3, p. 35; Doc. 92-3,
pp. 3, 19). To this Mrs. Frye agreed. (Doc. 81-3, p. 35).
Chandler testified that, at this point, he felt he had to
arrest Mitchell for trespassing. (Doc. 81-4, pp. 18-19).
Wilson arrived at the Frye residence sometime during this
exchange between Chandler and Mrs. Frye, which lasted
approximately one and a half minutes. As the two officers
made their way to the back of the Frye residence, Chandler
informed Wilson that they were dealing with a potential
Signal 31, which is the MPD's code for someone with
mental problems. Id. at 17-18.
the date in question, the MPD had in place Memorandum Order
MO-2011-03 to “enhance an officers' ability to
recognize, understand and deal with a person with mental
illness.” (Doc. 81-8, p. 17). The memorandum order
advises officers to gather as much information as possible
about the individual's mental issue, “events that
may have precipitated the person's behavior, and the
presence of weapons.” Id. Such information can
be obtained from “the subject, their family members,
neighbors, prior involvement, etc.” Id. The
memorandum order guides officers in the best practice
“dos and don'ts” for approaching and
interacting with a person with mental illness. Id.
at 17-18. Although the memorandum order provides a list of
symptoms persons with mental illness may demonstrate, the
information provided is merely a guideline. Id. at
20. Police officers are “not expected to identify or
diagnose specific mental disorders, ” and such function
should be left to proper medical professionals. Id.
at 19-20. Additionally, as Chief of Police James Barber
explained, “[T]here are times when force must be
employed in order to place a suspect under arrest, regardless
of whether that suspect may be mentally ill or emotionally
disturbed.” Id. at 5-6.
and Wilson cautiously made their way to the back of the Frye
residence. (Doc. 81-4, pp. 22, 24; Doc. 81-5, p. 7). The
officers located Mitchell ducked down in the corner of the
house. Id. Mitchell was only visible from shoulders
up due to a barbeque grill blocking their view. Id.
The pair of officers identified themselves as police. (Doc.
81-2, p. 25). Wilson asked Mitchell what he was doing behind
the Frye's house, to which Mitchell responded,
“These my kinfolks.” (Doc. 81-5, p. 22). Chandler
asked Mitchell to raise his hands, and Mitchell raised his
hands and stood up. (Doc. 81-4, p. 24). Chandler described
Mitchell's facial expression as one of fear or panic, as
if he had taken some substance that causes a stupor, under
the influence of alcohol, or just committed a crime and been
caught. Id. at 12.
informed Mitchell that the officers were going to pat him
down for weapons in order to secure the safety of the
officers and Mitchell. (Doc. 81-5, p. 23). In response,
Mitchell again responded, “These my kinfolks.”
Id. As the officers approached, Chandler began
patting down Mitchell's right side and Wilson
Mitchell's left. Id. at 10, 12. Chandler removed
a knife clipped to Mitchell's front right pocket he had
earlier identified and placed it out of reach on the
barbeque. (Doc. 81-4, p. 2). Mitchell was to be placed under
arrest after the pat down for weapons was complete.
Id. at 40. But almost as quick as the pat down
began, Mitchell took off running northerly before either
officer completed the pat down. (Doc. 81-4, p. 31; Doc. 81-5,
p. 13). When Mitchell made it to the corner of the house, he
turned westerly and began running out the Frye driveway
toward Bonneville Drive. Up to the point he ran, Wilson
described the encounter with Mitchell as lasting no more than
thirty seconds. (Doc. 81-5, p. 24).
Chandler and Wilson pursued Mitchell out the Frye driveway
then north on Bonneville Drive when Mitchell turned and ran
right as he exited the driveway. (Doc. 81-4, p. 35; Doc.
81-5, p. 13). As they pursued Mitchell, Wilson led the two
officers with Chandler some feet behind. (Doc. 81-4, p. 35).
Before exiting the driveway, Wilson unholstered her Taser as
she ran and fired upon Mitchell in an attempt to subdue
Mitchell but missed. (Doc. 81-4, p. 35; Doc. 81-5, p. 15).
utilizes and provides qualified officers with a Taser
manufactured by Air Taser International. (Doc. 81-8, p. 8).
An officer may carry one of two models, which have slight
differences, but both function in the same two modes. (Doc.
81-7, p. 3). One mode fires from a cartridge attached to the
Taser two projectiles with prongs connected to twenty-one
feet of lead wire. Id. The projectiles are intended
to attach to the target's clothing or skin. If both
projectiles properly attach, this mode incapacitates the
target by interfering with the target's central nervous
system for the skeletal muscles between where the two
projectiles land. Id. at 4. The second mode is
referred to as “drive stun” or “touch
tase.” The touch tase mode is a pain compliance mode
that only affects the area touched. Id. at 4-5. In
either mode, the Taser cycles for five seconds, “unless
manually stopped or the trigger is held.” Id.
at 4. The MPD maintains its own police academy to provide
training for its officers. (Doc. 81-8, p. 3). Each officer,
including the two in question, learns minimum standards of
policing, as well as the use of force. Id. This
training includes the proper use of an electronic control
device or Taser and Memorandum Order No. 2010-01, dated
January 26, 2010, which addresses the use of Tasers and
reporting of their use. Id. at 8-16. The use of a
Taser constitutes use of force. Id. at 12. A Taser
may be used by an officer when, among other considerations,
“the officer reasonably believes the suspect is a
credible threat, ” the “suspect actively
resist[s] arrest, ” or the “[c]ircumstances are
tense, uncertain, and rapidly evolving.” Id.
the time Mitchell was running down the driveway, Officer
Patrick Palmer arrived and began getting out of his patrol
car to offer any assistance necessary, although he was not
specifically dispatched to Bonneville Drive. Before getting
far from his patrol car, Palmer saw Mitchell run down the
driveway and turn north on Bonneville Drive, all the while
being chased by Chandler and Wilson, one of which was yelling
for Mitchell to stop. (Doc. 81-6, p. 6; Doc. 93-1, p. 16).
Palmer got back in his patrol car, which was facing south,
turned around and began pursuing Mitchell, Wilson, and
Chandler north on Bonneville Drive until he cut Mitchell off
at the next street to his right, Pawnee Circle. (Doc. 81-6,
pp. 8-9; Doc. 93-1, p. 16). Unable to continue north,
Mitchell turned up another driveway and doubled back south,
now running through yards with Wilson and Chandler continuing
their foot pursuit. (Doc. 81-4, p. 41; Doc. 81-5, pp. 20, 21,
26; Doc. 81-6, p. 9).
had fallen behind Mitchell and Wilson and was far enough back
to see Mitchell running back his way. Chandler had already
unholstered his Taser, and, at this point, Chandler fired at
Mitchell as he ran by but missed. (Doc. 81-4, pp. 39, 44,
47). Mitchell continued his southerly trek back toward the
Frye residence. Id. As Chandler fired his Taser, he
tripped and fell on his own Taser wires, momentarily tasing
himself. Id. at 50.
their front porch, the Fryes saw Mitchell running back toward
their house. (Doc. 81-3, p. 15). Seeing the chase headed
their way, both Mr. and Mrs. Frye made their way inside their
house and locked the door behind them. (Doc. 81-2, p. 13;
Doc. 81-3, p. 16). Mitchell ran back to the Frye's front
porch. The Fryes testified that Mitchell attempted to open
their door when he ran back onto their porch. (Doc. 81-2, p.
27; Doc. 81-3, p. 17).
and Palmer pursued Mitchell to the Frye front
porch. Both officers explained that they
attempted to place Mitchell in handcuffs, but Mitchell
actively resisted their efforts and commands to get down with
his hands behind his back. (Doc. 81-6, p. 15). Wilson
described Mitchell as “ripping” his arms away
when she tried to pull them behind his back and handcuff him.
(Doc. 81-5, p. 32; Doc. 92-3, p. 10). At some point in the
front porch fracas, Wilson touch tased Mitchell at least one
time due to his noncompliance. (Doc. 81-5, p. 34). Aware of
Mitchell's noncompliance, Palmer testified that he
attempted to get Mitchell's left arm behind his back but
could not because Mitchell was too strong. (Doc. 81-6, pp.
15-17, 19- 20). Palmer wrapped Mitchell in a bear hug around
the last time Wilson tased Mitchell on the porch and the
three fell into the bushes to the right of the porch when
facing the Frye residence. (Doc. 81-5, p. 34; Doc. 81-6, p.
20). When Palmer fell into the bushes, he could feel the
effects of a Taser but was unaware who had the Taser. (Doc.
81-6, p. 28). Wilson heard Palmer's voice but was unaware
of his location. (Doc. 81-5, pp. 36-37).
Mrs. Frye watched the front porch fracas between Mitchell,
Wilson, and Palmer through their front porch picture window.
Mrs. Frye described Mitchell as “uncontrollable”
to investigators after the incident. (Doc. 92-2, p. 8).
Although uncontrollable, she described Mitchell's
resistance and noncombative and more an effort to avoid being
held by officers. (Doc. 81-3, pp. 25, 58; Doc. 92-3, p. 4).
Both Mr. and Mrs. Frye heard the officers commanding Mitchell
to get on his knees with his hands behind his back. (Doc.
81-2, p. 14; Doc. 81-3, p. 18; Doc. 93-2, p. 12). And Mr.
Frye described the front porch fracas differently from Wilson
and Palmer. He testified that Palmer had Mitchell on his
knees about to handcuff Mitchell when Wilson tasered
Mitchell. (Doc. 81-2, pp. 14, 30, 31). Mr. Frye explained
that Wilson tasered Mitchell after telling him to get down
and put his hands on his head. Id. at 30. After
being tased, Mitchell stood up and the three fell into the
bushes. Id. at 31-32. When Mitchell, Wilson, and
Palmer fell off the porch into the bushes, Mr. and Mrs. Frye
could not see the remainder of the incident, except for
Palmer for a brief moment. (Doc. 81-2, p. 15; Doc. 81-3, pp.
made his way up to the Frye residence not long before
Mitchell, Wilson, and Palmer fell into the bushes. As he
approached, Chandler saw Palmer wrap Mitchell up in a bear
hug. (Doc. 81-4, pp. 52-53). Chandler observed the clump of
people wrestling in the bushes but was unable to make out who
was who until he got closer, whereupon he saw Mitchell on top
of Wilson and Palmer on his side. Id. at 57-58. When
Palmer fell, his protective vest was pushed up over his head,
which forced him to let go of Mitchell. (Doc. 81-6, p. 24).
This forced Palmer on his side away from Mitchell and Wilson.
Palmer was unable to see what was going on until he untangled
himself from the bushes and removed his vest. Id.
With Mitchell on top of her, Wilson attempted to tase
Mitchell since she still held her Taser in her right hand.
(Doc. 81-5, pp. 40). Wilson's attempts were unsuccessful
because her right arm was trapped “between [Mitchell],
the bushes, and the house, it was lodged.” Id.
Chandler described Mitchell and Wilson at this point as
“wrestling with each other” but not seeing
Mitchell punch or kick anyone. (Doc. 81-4, p. 59). Wilson
explained that she felt elbows and arms hitting her but
cannot say whether the hits were deliberate. (Doc. 81-5, pp.
under Mitchell, Wilson lost control of her Taser, someone
picked it up, and she “quickly felt the Taser on [her]
arm.” (Doc. 81-5, pp. 51, 68, 69). While under the
Taser's affects, Wilson explained she did not know what
was happening and was physically immobilized except for some
shaking. Id. at 67, 69. Chandler saw that Mitchell
had his left arm wrapped around Wilson's waist or stomach
and had “her Taser in his hand and had it stuck to
her.” (Doc. 81-4, p. 60). Chandler could not see if
Mitchell was pulling the Taser trigger but thought Wilson was
acting like she was being tased. Id. About this
time, the Fryes heard Wilson scream in pain while they were
inside their house. (Doc. 81-2, p. 16; Doc. 81-3, p. 29).
Chandler attempted to pull Wilson away from Mitchell but was
himself shocked so he stepped two to three feet away and drew
his handgun. (Doc. 81-4, p. 61). Chandler explained that all
of this happened very fast. Id. at 62.
Chandler backed away, Mitchell got off Wilson and moved away
from the officers. The exact distance Mitchell moved away is
unknown, but Mitchell made his way south, away from Chandler,
Wilson, and Palmer. (Doc. 81-4, p. 66) (Chandler testifying
that Mitchell took seven to eight steps, which put him
approximately fifteen to twenty feet away); (Doc. 81-5, p.
49) (Wilson testifying that there was eight to ten feet
between herself and Mitchell when she got out of the bushes).
At this point, Mitchell turned to face the three officers
with Wilson's Taser in his hand. (Doc. 81-4, p. 66; Doc.
81-5, p. 51; Doc. 81-6, p. 28). Both Chandler and Palmer
described Mitchell's stance as aggressive. (Doc. 81-4, p.
66; Doc. 81-6, p. 54). Palmer drew his Taser. (Doc. 81-5, p.
59; Doc. 81-6, pp. 31-32). In another attempt to subdue
Mitchell, Palmer fired his Taser upon Mitchell. Palmer
testified that Mitchell “did lower himself down and
turn left, ” as if struck, after Palmer fired his
Taser, but Mitchell “then came back up.”
Id. at 33.
Chandler and Wilson testified that they ordered Mitchell to
“drop the Taser.” (Doc. 81-4, p. 70; Doc. 81-5,
p. 60). Wilson drew her handgun as she ordered Mitchell to
“drop the Taser.” (Doc. 81-5, p. 60). At this
time, Mitchell had Wilson's Taser pointed at Wilson's
center mass. (Doc. 81-4, p. 68; Doc. 81-5, p. 57). Chandler
and Wilson testified that they again ordered Mitchell to
“drop the Taser.” (Doc. 81-4, pp. 69-70; Doc.
81-5, p. 60). Conversely, the Fryes testified that Chandler
and Wilson gave no commands to Mitchell prior to firing their
handguns. (Doc. 81-2, p. 36; Doc. 91-2, p. 10; Doc. 92-3, p.
4). Palmer testified that he only remembered Chandler using
the word “transition” in some manner immediately
before the shooting. (Doc. 81-6, pp. 30-31). But Palmer
explained that he had just gotten out of the bushes and was
trying to figure out what was happening. Id.
still in hand, Mitchell moved toward Wilson. Chandler
described Mitchell's movement as “two fast steps as
if you're going to take off to catch a pass in
football.” (Doc. 81-4, p. 70). In other words,
“[a] rapid push-off step forward, followed by a second
step.” Id. Wilson described Mitchell's
movement as “a pretty brisk walk” from eight to
ten feet away with the Taser pointed at her. (Doc. 81-5, p.
61, 63). Palmer described Mitchell's movement as his
upper body was moving but his feet and legs were stationary.
(Doc. 81-6, p. 32). And Mitchell was out of the view of Mr.
and Mrs. Frye at this point. Chandler fired his handgun one
time, and Wilson fired her handgun three times. (Doc. 81-4,
p. 72; Doc. 81-5, p. 63). Wilson testified that Mitchell was
approximately four to six feet away after her third shot.
(Doc. 81-5, pp. 64-64). Mitchell fell to the ground after
being shot, and Chandler kicked Wilson's Taser from
Mitchell's hand. (Doc. 81-3, p. 73). The officers called
for medical assistance for Mitchell, but, tragically, he
Order #1 of the MPD addresses when an officer may use deadly
force. Therein, the order explains that “[o]fficers are
expected to achieve control, and to the extent possible,
exhaust other reasonable means before resorting to the use of
deadly force.” (Doc. 81-8, p. 27). An officer has
probable cause to use deadly force when, among other
circumstances, (1) “[t]he subject possesses a weapon or
is attempting to gain access to a weapon under circumstances
indicating an intention to use it against the officer or
citizens” or (2) “[a] subject with the capability
of inflicting death or serious injury-or otherwise
incapacitating the officer-without a deadly weapon is
demonstrating an intention to do so.” Id. The
order further instructs that officers shall provide a verbal
warning “of the intent to use deadly force” when
circumstances permit. Id.
autopsy indicates his cause of death was two gunshot wounds,
one to his chest and one to his torso. (Doc. 81-1, p. 3). A
forensic analysis was performed on the bullets recovered from
Mitchell's body. The analysis, however, was unable to
match the bullets recovered to either Chandler's or
Wilson's gun “due to insufficient corresponding
individual microscopic characteristics.” Id.
STANDARD OF REVIEW
Rule of Civil Procedure 56(a) provides that summary judgment
shall be granted: “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.” The trial
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 v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The mere
existence of a factual dispute will not automatically
necessitate denial; rather, only factual disputes that are
material preclude entry of summary judgment. Lofton v.
Sec'y of Dep't of Children & Family Servs.,
358 F.3d 804, 809 (11th Cir. 2004). "If the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted." Anderson, at 249-250.
(internal citations omitted).
the movant satisfies his initial burden under Rule 56(c), the
non-moving party "must make a sufficient showing to
establish the existence of each essential element to that
party's case, and on which that party will bear the
burden of proof at trial." Howard v. BP Oil
Company, 32 F.3d 520, 524 (11th Cir. 1994)(citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
Otherwise stated, the non-movant must “demonstrate that
there is indeed a material issue of fact that precludes
summary judgment.” See Clark v. Coats & Clark,
Inc., 929 F.2d 604, 608 (11th Cir. 1991). The non-moving
party “may not rely merely on allegations or denials in
its own pleading; rather, its response .... must be by
affidavits or as otherwise provided in this rule be set out
specific facts showing a genuine issue for trial.”
Vega v. Invsco Group, Ltd., 2011 WL 2533755, at *2
(11th Cir. 2011). In reviewing whether a non-moving party has
met its burden, the Court must draw all justifiable
inferences in favor of the non-moving party. Tipton v.
Bergrohr GMBH-Siegen, 965 F.2d 994, 998 - 99 ...