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Elliott v. City of Pleasant Grove

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

March 22, 2018

GLENN ELLIOTT, Plaintiff,
v.
CITY OF PLEASANT GROVE, ALABAMA, et al., Defendants.

          MEMORANDUM OPINION [1]

          JOHN H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE.

         On 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 GRANTED.

         I. Standard of Review

         Under 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).

         The 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).

         II. Summary Judgment Facts

         A. The Incident at the Chevron Gas Station

         The 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, 48:3-9)).

         Prior 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)).

         The 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)).

         Officer 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)).

         Seeing 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)).[2]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).

         Officer 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 3).

         Officer 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.).

         Elliott 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. 83:15-17)).

         B. Elliott's Medical History

         Elliott 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)).

         Fifteen 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)).

         Elliott 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)).

         C. City Police Training and Policy

         Elliott 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)).

         Although 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 (149:6-12)).

         III. Analysis

         Count I 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 ΒΆ 21). Counts VI and Count VII ...


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