United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE.
April 19, 2016, Defendants City of Pleasant Grove, Alabama,
Chief Robert Knight, Officer Allen Bagwell, and Officer Bill
Vick removed this action from the Circuit Court of Jefferson
Count, Alabama. (Doc. 1). In the amended complaint, Plaintiff
Glenn Elliott (“Elliott”) asserts claims pursuant
to 42 U.S.C. § 1983 against Officer Bagwell and Officer
Vick for unlawful seizure and excessive force and state law
claims for intentional inflection of emotional distress,
negligence, false imprisonment, false arrest, and assault and
battery against the officers. (Doc. 1-2). Elliott also
asserts § 1983 claims against the City and Chief Knight
alleging failure to train or supervise and a failure to
enforce polices or procedures. (Id.). Defendants
move for summary judgment as to all of Elliott's claims.
(Doc. 13). The motion is fully briefed and ripe for review.
(Docs. 13, 15, & 18). For the reasons stated more fully
below, the motion for summary judgment (doc. 13) is
Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “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.” Rule 56
“mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 447 U.S. 317, 322 (1986).
The moving party bears the initial burden of proving the
absence of a genuine issue of material fact. Id. at
323. The burden then shifts to the nonmoving party, who is
required to “go beyond the pleadings” to
establish there is a “genuine issue for trial.”
Id. at 324. (citation and internal quotation marks
omitted). A dispute about a material fact is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Court must construe the evidence and all reasonable
inferences arising from it in the light most favorable to the
non-moving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157, (1970); see also Anderson, 477
U.S. at 255 (all justifiable inferences must be drawn in the
non-moving party's favor). Any factual disputes will be
resolved in Plaintiff's favor when sufficient competent
evidence supports Plaintiff's version of the disputed
facts. See Pace v. Capobianco, 283 F.3d 1275,
1276-78 (11th Cir. 2002) (a court is not required to resolve
disputes in the non-moving party's favor when that
party's version of the events is supported by
insufficient evidence). However, “mere conclusions and
unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per
curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836
F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere
‘scintilla' of evidence supporting the opposing
party's position will not suffice; there must be enough
of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577
(11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
Summary Judgment Facts
The Incident at the Chevron Gas Station
allegations in the complaint arise from an altercation that
occurred on November 6, 2013. (Doc. 13-2, conventionally
filed CD with security camera footage of the incident).
Elliott testified that, on the evening in question, he
believed he had a flea infestation in his home. (Doc. 13-4 at
13 (46:18-22)). To dispose of the fleas, he purchased
“bug bombs” to set off throughout his house.
(Id. (47:11-19)). Due to the toxicity of the bug
bombs, Elliott and his wife were staying at his mother's
house that night. (Id. (47:20-23)). That evening,
Elliot and his wife had dinner at Elliott's mother's
house, and afterwards Elliott went back home to set off the
bug bombs - around 10:00 PM. (Id. (47:15-19,
to leaving his house, Elliott went to his refrigerator to get
a Mountain Dew. (Doc. 13-4 at (48:16-20)). He saw a handgun,
a Kel-Tec .380 caliber pistol, sitting on top of the
refrigerator, and he decided to take it with him.
(Id. (48:16-22)). Elliott testified: “[I] just
stuck it in my back pocket and went out the door.”
(Id. at 14 (52:16-17)). On the way back to his
mother's house, Elliott decided to go to the Pleasant
Grove Chevron to buy two more Mountain Dews and a pack of
cigarettes. (Id. at 41 (157:8-10)).
entire encounter between Elliot and the officers was captured
on Chevron's video surveillance system. (Doc. 13-2).
Elliott testified that “the tape pictures pretty much
tell the story.” (Doc. 13-3 at 54 (212:13-14)). At
approximately 10:58 PM, Elliott entered the Chevron. (Doc.
13-2). The barrel of a .380 caliber handgun was visibly
handing out of a hole in his back-right pocket.
(Id.). Michael Wood, the gas station attendant,
attested: “Elliot entered the store, and it was
immediately apparent that he had a pistol hanging out of a
hole in his back right pocket.” (Doc. 13-7 at 2). As
Elliott moved through the store, he stopped in front of what
appears to be a refrigerator filled with bottled drinks.
(Doc. 13-1). Officer Vick alerted Officer Bagwell to the gun
in Elliott's pocket. (Doc. 13-6 at 2). As Elliot bent
over to remove a drink from the refrigerator, the angle of
the gun was such that it was on a horizontal plane and
pointing in a (presumably) unsafe direction. (Doc. 13-2;
see doc. 13-3 at 2). Officer Vick noticed the
handgun and observed that it was pointed in his general
direction, Officer Bagwell's general direction, and could
possibly be pointed at any member of the public who would
walk into the gas station, as well as individuals outside the
station pumping gas. (Doc. 13-5 at 2, doc. 13-6 at 2). There
were three or four other people in the gas station store.
(Doc. 13-4 at 35 (134:4-5)). One of the officers said
“hey you, ” and Elliott testifies he did not know
who the officer was talking to. (Id. at (134:4-9)).
Bagwell and Officer Vick approached Elliot to talk to him
about the public safety risk that his unsecured weapon
presented, and Officer Bagwell asked Elliott to keep his
hands on the counter. (Doc. 13-5 at 2-3). One of the officers
asked Elliott what was in his back pocket. (Doc. 13-4 at 35
(134:19-21)). Officer Bagwell attests that Elliott then
“reached for his firearm.” (Doc. 13-5 at 3).
Officer Vick attests that “Elliot then reached for his
right back pocket, where the gun was located.” (Doc.
13-6 at 3). Elliott testified: “I made a move. I
wasn't going to pull it out, I was going to pat my back
pocket.” (Doc. 13-4 at 35 (134:22-23)).
that Elliott was reaching toward his weapon, Officer Bagwell
restrained Elliott by the right arm. (Doc. 13-5 at 2)
(“I applied control to the arm by pulling up on the
elbow and using my left arm to control his wrist.”).
Elliott fought back against Officer Bagwell's hold. (Doc.
13- 7 at 3). Elliott testified he “was debating on
tangling” with Officer Bagwell, but denied
“siz[ing] him up.” (Doc. 13-4 at 47 (183:20 -
184:6)). Elliott explains “he grabbed me by the arm and
twisted it up” and “ended up bending me over the
counter.” (Doc. 13-4 at 35 (135:1,
10-11)).Officer Vick disarmed Elliott, removed the
magazine from the pistol, and cleared the bullet from the
chamber of the pistol. (Doc. 13-6 at 3). Elliott testified
that the gun “wasn't loaded, ” but
“[h]ad a clip in it, but no round [in the
chamber].” ((Doc. 13-4 at 19 (72:14-21)). Officer Vick
placed the magazine, pistol, and single bullet on top of a
case of sodas siting on the gas station counter. (Doc. 13-2;
doc. 13-6 at 3). Elliot told the officers he had a concealed
carry permit. (Doc. 13-4 at 44 (170:1-5)). Officer Vick
removed Elliott's wallet and verified that he did have a
concealed carry permit. (Doc. 13-6 at 3).
Bagwell released Elliott at approximately 11:00 PM, being
restrained by the officers for less than two minutes. (Doc.
13-2). Elliott then paid for the items he had brought to the
counter. (Doc. 13-7 at 3). Elliott picked up his bag of
Mountain Dews with his right hand. (Id.). Elliott
testified he had no problem with the officers checking his
concealed carry permit. (Doc. 13-4 at 36 (137:18-20)). The
store clerk did not hear Elliott tell the officers of any
injury or pain resulting from the encounter. (Doc. 13-7 at
Bagwell and Officer Vick walked Elliott out of the gas
station. (Doc. 13-5 at 3). When they reached Elliott's
vehicle, Officer Vick returned Elliott's magazine,
pistol, and bullet. (Id.; doc. 13-6 at 3). Elliott
testified that at this point he was “free to go”
and that he “could have left anytime.” (Doc. 13-4
at 45 (176:2-4)). Elliott spoke with the officers about the
other guns in his collection and about how he liked the gun
he was carrying. (Id.at 35-36 (136:9 - 137:13)). The
officers walked back into the store at approximately 11:03
PM. (Doc. 13-2). Elliott can be seen driving away from the
Chevron in a green pickup truck at approximately 11:04 PM.
(Id.). The entire encounter between Elliott and the
officers lasted less than five minutes. (Id.).
testified he owns “about a hundred” firearms.
(Doc. 13-4 at 16 (58:11-16)). He testified he regularly
carries the Kel-Tec .380 pistol that he was carrying on
November 6, 2013 (carrying it every day to work), as well as
a Glock .45 caliber handgun that he normally carries in a
shoulder holster. (Id. at 14, 45 (50:4-8,
173:15-22)). Although Elliott testified he never had taken a
firearm safety class, he did state that he was trained by his
father, who was a reserve police officer for the City of
Pleasant Grove, in the proper way to handle firearms and had
hunted (with guns) for years. (Id. at 15-16, 19
(50:6-12, 54: 8-12, 59:14-22, 72:5-7)). Elliott testified he
imparted the same rules for gun handling to his children when
teaching them the lessons of proper firearm safety.
(Id. at 16 (59:5-13)). Among the lessons his father
taught him was not to “point [a gun] at nobody and
always treat it as if it was loaded, ” “[a]lways
be sure what you are shooting at[; that] [t]here is nothing
behind you or past you that might be . . . in that line of
fire” and that you should always be sure of where the
muzzle of the pistol is pointing because it is always
dangerous for a firearm to be pointed at someone.
(Id. at 20 (73:10-23, 74:1-5). Elliott testified he
was taught to carry firearms in a secure manner and that it
was important to follow firearm safety rules for the benefit
of public safety. (Id. at 21-22 (77:5-17.
Elliott's Medical History
has a history of chronic and acute health issues,
particularly of the knee and lower back. (Doc. 13-4 at 12
(41:3-13)). He broke his back, near his tailbone, twice
playing football in school, which subsequently contributed to
arthritis of the lower back. (Id. at 9 (29:19 -
30:10)). Also, Elliot was in an accident while riding his
motorcycle when he was seventeen, breaking bones and severely
injuring his shoulder, which he never had repaired.
(Id. at 7 (22:21 - 23:11)). Subsequent treatment at
Lloyd Nolan hospital led Elliot to an addiction to morphine
and pain pills, which lasted until June 2016. (Id.
at 11 (37:7 - 40:8)). About twenty years ago, Elliott had
another motorcycle accident that “shattered his knee
joint” causing a shortening of his right leg, which has
negatively affected his left hip and his back. (Id.
at 7, 12-13 (22:2-11, 43:15 - 45:13)). Elliot underwent back
surgery due to spinal stenosis within the past several years.
(Doc. 13-4 at 8-9 (28:12 - 28:1)).
years ago, Elliot had his first heart attack and had been in
the care of a cardiologist since that time. (Doc. 13-4 at 7
(24:14-16)). Since that time, he has had a quadruple bypass
and numerous stints put in. (Id. at 8 (27:9 -
28:11)). Elliott, who left his job due to his heart
condition, testified: “I was having so much trouble
with it and my artery disease, whatnot, that I just got to
where I couldn't walk in the amount of stuff that
it'd take to do the job I was doing.” (Id.
at 25 (95:7-11, 96:21-22)).
testified his arm hurt and he couldn't lift his arm as
high. (Id. (99:20-22)). Although explaining he was
having an issue with his arm staying numb two weeks prior to
the incident, (id. at 9 (31:8-15), Elliott testified
nothing was wrong with his shoulder before the incident.
(Id. at 36 (140:1-3)). Elliott testified that he
lives on a fixed-income, (id. at 25 (93:16-17)), and
that he did not believe he had enough money to seek further
medical treatment, (id at 27 (101:13-23)). Although
he was evaluated by his neurosurgeon (who Elliott says
recommended further testing and possibly an MRI),
(id. (101:13-17), Elliott does not allege any
medical bills as damages, as he testified “as of right
now, I don't have any bills that tie to this.
(Id. (103:1 - 104:1)).
City Police Training and Policy
testified he does not know what type of training Officer
Bagwell and Officer Vick received. (Doc. 13-4 at 30
(116:16-19)). Elliott also testified he has “no
idea” about the “policies and procedures”
and “rules and regulations” of the city,
(id. at 33 (126:18-21)), and that he does not know
anything about the City's use of force policy,
(id. at 40 (154:5-9)). As to Chief Knight, Elliott
testified he doesn't have any evidence that Chief Knight
had knowledge of any alleged issue with any of the City's
officers. (Id., at 39 (151:3-17)).
clarifying that Officer Vick could have helped to prevent
what happened, Elliott agreed that he had no complaint
against Officer Vick, (id. at 51 (197:11-20), and
had no complaint against Chief Knight, (id. at 39
of Elliott's complaint alleges violation of his rights
guaranteed by the Fourth, Fifth, and Fourteenth Amendments
against Officer Bagwell and Officer Vick, specifically the
prohibition against the use of excessive force and unlawful
seizure. (Doc. 1-2 at ¶10). Elliott also asserts state
law claims against Officer Bagwell and Officer Vick including
Count II for intentional infliction of emotional distress
(id. at ¶ 13), Count III for negligence (i.e.,
negligently breaching their duty “not to touch
[Elliott] in the manner they did”) (id. at
¶ 16), Count IV for false imprisonment (id.at
¶ 16), and Count V for assault and battery (id.
at ¶ 21). Counts VI and Count VII ...