United States District Court, S.D. Alabama, Northern Division
WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE
matter is before the Court on the defendants' motion for
summary judgment. (Doc. 13). The parties have filed briefs
and evidentiary materials in support of their respective
positions, (Docs. 14, 21-23), and the motion is ripe for
resolution. After careful consideration, the Court concludes
the motion is due to be granted in part and denied in part.
defendants are the City of Camden ("the City") and
three police officers (Brassel, Powell and McGraw) employed
by the City. According to the complaint, (Doc. 1-1), on May
17, 2014, Officers Brassel and McGraw arrested the plaintiff,
handcuffed him, then placed him in the back of a patrol car.
The plaintiff retrieved his cell phone from a pocket, called
his mother, and asked Officer McGraw to speak with her.
Officer McGraw agreed and permitted the plaintiff to exit the
patrol car, at which point Officer Powell grabbed the cell
phone from the plaintiff, broke it in two, placed the
plaintiff in a chokehold, and tased him. Officers Brassel and
McGraw also tased him. At no time was the plaintiff resisting
arrest, attempting to flee or threatening violence, and he
was at all times handcuffed.
1, 3 and 5 are brought against the officers under Section
1983 for violation of the plaintiffs Fourth Amendment
rights. Counts 2, 4 and 6 allege state-law assault
and battery against the officers. Count 7 asserts a Section
1983 claim against the City based on its policies and customs
of deliberate indifference to the plaintiffs constitutional
rights, while Count 8 asserts a state-law claim against the
City for negligent and/or wanton training and
supervision. The defendants seek summary judgment as to
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).
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).
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
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 ....").
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 plaintiffs
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 plaintiffs version." Rachel v. City
of Mobile, 112 F.Supp.3d 1263, 1274 (S.D. Ala. 2015),
affd, 633 Fed.Appx. 784 (11th Cir. 2016).
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); accord Gennusa v.
Canova, 748 F.3d 1103, 1116 (11th Cir. 2014).
The Court accordingly limits its review to those arguments
the parties have expressly advanced.
complaint alleges that the officers engaged in an
unconstitutionally unreasonable search and seizure of the
plaintiff and that they employed unconstitutionally excessive
force against him. (Doc. 1-1 at 5-6).
Search and seizure.
the evidence in the light most favorable to the plaintiff,
Officers McGraw and Brassel were inside a general store when
the plaintiff entered and purchased a drink. As the plaintiff
exited the store, a drug dealer from whom the plaintiff had
previously purchased marijuana was nearing the entrance. As
the plaintiff approached the dealer to purchase marijuana,
the dealer pushed him. The officers saw the plaintiff
preparing to retaliate and intervened, with each officer
pulling a participant away from the other.
McGraw held the plaintiff, who moved towards his vehicle
while still jawing at the drug dealer. Officer Brassel
instructed the other participant to leave the premises, then
joined Officer McGraw. When they neared the plaintiffs
vehicle, the officers saw a leafy green substance in a clear
plastic bag sitting on the front seat of the plaintiffs car.
The plaintiff was thereupon arrested and handcuffed for
possession of marijuana (or possibly spice).
arrest is a seizure, and we assess the reasonableness of an
arrest by the presence of probable cause for the
arrest." Carter v. Butts County, 821 F.3d 1310,
1319 (11th Cir. 2016). That is, "[a]n arrest
without probable cause violates the Fourth Amendment."
Brown v. City of Huntsville, 608 F.3d 724, 734 n. 15
(11thCir. 2010). "Probable cause to arrest
exists if the facts and circumstances within the
officer's knowledge, of which he has reasonably
trustworthy information, would cause a prudent person to
believe, under the circumstances shown, that the suspect has
committed, is committing, or is about to commit an
offense." Carter, 821 F.3d at 1319 (internal
quotes omitted). Thus, "[w]hether an officer possesses
probable cause ... depends on the elements of the alleged
crime and the operative fact pattern." Brown,
608 F.3d at 735.
person commits the crime of unlawful possession of marihuana
in the second degree if, except as otherwise authorized, he
possesses marihuana for his personal use only." Ala.
Code § 13A-12-214(a). The question is whether, under the
facts and circumstances known to the arresting officers, a
prudent person would believe that the plaintiff possessed
marijuana for personal use.
is a green, leafy substance. Marijuana is commonly packaged in
clear plastic bags. The plaintiff smelled of marijuana. (Doc.
14-3 at 6-7). Officer Brassel knew that the plaintiff had a
reputation in town and among law enforcement officers for
involvement with drugs. (Id. at 4). Under these
circumstances, there was probable cause to believe the
substance in the plastic bag was marijuana.
order to establish the element of possession, the State must
show ... (1) actual or potential control, (2) intention to
exercise dominion, and (3) external manifestation of
intent." Boyington v. State, 748 So.2d 897,
901-02 (Ala.Crim.App.1999) (internal quotes omitted). The
marijuana was located in plain view on the front seat of the
plaintiffs vehicle, and the plaintiff was moving towards his
vehicle when the officers discovered it. Under these
circumstances, there was probable cause to believe the
plaintiff possessed the marijuana.
plaintiff possessed a single plastic bag of marijuana, and he
smelled of marijuana. Under these circumstances, there was
probable cause to believe the plaintiff possessed the
marijuana for personal use.
officers thus had probable cause to arrest the plaintiff,
defeating any Fourth Amendment claim based on the absence of
such probable cause. The plaintiff does not assert that the
officers violated his Fourth Amendment rights by observing
the plastic bag in his car or by basing probable cause on
what they observed. In any event, the officers clearly they
did not violate the plaintiffs Fourth Amendment rights by
seeing inside his vehicle or relying on what they saw.
"The plain view doctrine applies to articles which can
be seen through the door or window of an automobile."
United States v. McDaniel, 550 F.2d 214, 218
(5th Cir. 1977).
the officers possessed probable cause to arrest the
plaintiff, his arrest did not violate the Fourth Amendment.
Accordingly, the officers are entitled to summary judgment as
to this claim.
the evidence in the light most favorable to the plaintiff,
the officers effected the plaintiffs arrest by handcuffing
him behind his back and advising him he was under arrest. As
he was being placed in a patrol car, the plaintiff asked that
he be handcuffed with his hands in front; Officer McGraw
agreed and did so. The plaintiff entered the patrol car and
the doors were shut on him. The plaintiff remained compliant
and non-resisting throughout this process. The plaintiff then
retrieved a cell phone from his pocket and called his mother,
who asked to speak with Officer McGraw. The plaintiff told
Officer McGraw this and asked if he could step out of the
patrol car while Officer McGraw spoke with his mother.
Officer McGraw said "Sure, " opened the car door,
let the plaintiff out, and told him to just stand right
there. The plaintiff remained compliant and non-resisting
throughout this process. (Doc. 14-1 at 4-6).
time, Officer Powell had arrived on the scene. As the
plaintiff exited the vehicle and got ready to hand Officer
McGraw his phone, Officer Powell grabbed the phone, broke it,
pushed the plaintiff against the patrol car, and placed the
plaintiff in a chokehold with one hand while tasing the
plaintiff in the side with his other hand. The plaintiff in
response "threw [his] hands up" and said,
"[Y]'all see this? This police brutality."
Officer Powell tased the plaintiff three or four times, all
in drive-stun mode. Officer McGraw also tased the plaintiff
one time, in prong mode. In response to Officer McGraw's
tase, the plaintiff "threw my arms up again, " at
which point Officer Brassel tased him under his arm in prong
mode, causing the plaintiff to pass out and
collapse.Throughout this period, the plaintiff
cooperated fully with the officers. (Doc. 14-1 at 6-9).
defendants rely on a very different version of the facts.
According to them, when Officer McGraw observed the plaintiff
on his cell phone, he instructed Officer Powell to confiscate
it. Officer Powell attempted to do so but, when he opened the
patrol car door, the plaintiff without permission began to
exit the vehicle and struggled with Officer Powell over the
phone. Officer Powell ordered the plaintiff to get back in
the patrol car but the plaintiff refused, his legs remaining
outside and the plaintiff daring Officer Powell to break
them. Officer Powell pushed the plaintiff back into the
vehicle while Officer McGraw from the other side attempted to
pull the plaintiff back inside. When this effort failed,
Officer Brassel tased the plaintiff twice in drive-stun mode.
Rather than becoming compliant, the plaintiff shoved Officer
Brassel in the chest. Officer Brassel then tased the
plaintiff in prong mode. (Doc. 14 at 4-6).
officers assert that they did not employ unconstitutionally
excessive force and that, even if they did, they are
protected by qualified immunity. For purposes of evaluating
the defendants' motion for summary judgment, of course,
the Court must accept the plaintiffs version of events, not
the defendants' version.
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).
plaintiff alleges that three on-duty city police officers
employed excessive force in the course of arresting him. Such
conduct plainly lies within the defendants' discretionary
authority for purposes of qualified immunity analysis.
See Crosby v. Monroe County, 394 F.3d 1328, 1332
(11th Cir. 2004) ("Because making an arrest
is within the official responsibilities of a sheriffs deputy,
[the defendant] was performing a discretionary function when
he arrested [the plaintiff], " allegedly using excessive
force in the process); accord Vinyard v. Wilson, 311
F.3d 1340, 1346 (11th Cir. 2002) ("[[I]t is
clear that [a sheriffs deputy] was acting within the course
and scope of his discretionary authority when he arrested
[the plaintiff] and transported her to jail, " during
which he allegedly used excessive force). The plaintiff does
not deny that the defendants have met their threshold burden.
(Doc. 21 at 14). See McClish v. Nugent, 483 F.3d
1231, 1237 (11th Cir. 2007) (where the plaintiff
did not dispute that the deputy was acting within his
discretionary authority at the time of arrest, the burden
shifted to the plaintiff to overcome the qualified immunity
relevant, dispositive inquiry in determining whether a right
is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted." Saucier v. Katz, 533
U.S. 194, 202 (2001). "In other words, existing
precedent must have placed the statutory or constitutional
question beyond debate." Reichle v. Howards,132 S.Ct. 2088, 2093 (2012). "The salient question ...
is whether the state of the law at the time of an incident
provided fair warning to the defendants that their alleged
conduct was unconstitutional." Tolan v. Cotton,134 S.Ct. 1861, 1866 (2014). To attain that level, "the
right allegedly violated must be established, not as a broad
general proposition, ... but in a particularized sense so