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Mitchell v. City of Mobile

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

May 3, 2017

ANN MITCHELL, Personal Representative of the Estate of Ray Anson Mitchell, Deceased, Plaintiff,
v.
CITY OF MOBILE, ALABAMA, et al., Defendants.

          ORDER

          CALLIE V. S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE

         This 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. 82).[1] 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 LaDoris Cordell.

         I. NATURE OF THE CASE

         This 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.[2] 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.

         Early 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 consideration.

         II. MOTION TO STRIKE

         Before 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.

         Federal 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).

         If a 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).

         Here, 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.

         Defendants 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.[3] 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 harmless.

         Moreover, 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.

         III. FACTUAL BACKGROUND [4]

         The 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).

         On the 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.

         Fearing 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).

         After 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.

         Chandler 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.

         As of 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.

         Chandler 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.

         Wilson 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).

         Both 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).

         The MPD 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.

         About 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).

         Chandler 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.

         From 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).

         Wilson and Palmer pursued Mitchell to the Frye front porch.[5] 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).

         Mr. and 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. 23, 30).

         Chandler 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. 44-45).

         Trapped 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.

         After 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.

         Both 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.

         Taser 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 died.

         General 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.

         Mitchell's 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. at 10.

         IV. STANDARD OF REVIEW

         Federal 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).

         Once 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 ...


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