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Robinson v. Brassel

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

June 5, 2017

OFFICER BRASSEL, et al., Defendants.



         This 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.


         The 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.

         Counts 1, 3 and 5 are brought against the officers under Section 1983 for violation of the plaintiffs Fourth Amendment rights.[1] 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.[2] The defendants seek summary judgment as to all counts.


         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). "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).

         There is no burden on the Court to identify unreferenced evidence supporting a party's position.[3] 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.

         I. Federal Claims.

         A. Officers.

         The 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).

         1. Search and seizure.[4]

         Viewing 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.

         Officer 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).

         "An 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.

         "A 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.

         Marijuana is a green, leafy substance.[5] Marijuana is commonly packaged in clear plastic bags.[6] 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.

         "In 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.

         The 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.

         The 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.[7] 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).

         Because 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.

         2. Excessive force.

         Viewing 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).

         By this 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.[8]Throughout this period, the plaintiff cooperated fully with the officers. (Doc. 14-1 at 6-9).

         The 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).

         The 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.[9]

         "[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).

         The 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 defense).

         "The 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 that ...

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