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Bryant v. City of Dothan

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

July 12, 2018

JETAVIAN BRYANT, Plaintiff,
v.
CITY OF DOTHAN, ALABAMA, et. al., Defendants.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff brings this action pursuant to 42 U.S.C. §§ 1983 and 1988 alleging that his constitutional rights were violated when the Defendants used excessive force against him during his arrest and also subjected him to an unlawful search by conducting a body cavity/strip search of him in the parking lot where he was arrested. He also alleges a state law claim for assault resulting from the Defendants' actions during his arrest. He sues the City of Dothan, a municipal corporation, the Chief of Police, Steve Parrish, and police officers Robert Cole, Thomas Davis, Matt Krabbe, and David Saxon (collectively “the Defendant Officers”). He sues the Chief of Police and Defendant Officers in their individual capacities. (Doc. 29, Plaintiff's Second Amended Complaint). Pursuant to 28 U.S.C. § 636(b)(1) this case was referred to the undersigned United States Magistrate Judge for review and submission of a report with recommended findings of fact and conclusions of law. (Doc. 21).

         Now pending before the Court are Defendants City of Dothan and Steve Parrish's Motion for Summary Judgment (Doc. 42), Supporting Brief (Doc. 43), and Defendants Robert Cole, Thomas Davis, Matt Krabbe, and David Saxon's (collectively “the Defendant Officers”) Motion for Summary Judgment (Doc. 44), Supporting Brief and Evidentiary Filings (Doc. 45) and Plaintiff's Responses to the Motions including Evidentiary Filings (Docs. 51 and 52) and the Defendant Officers' Reply Brief (Doc. 55). The Court has carefully reviewed the motions for summary judgment, the briefs filed in support of and in opposition to the motions, and the supporting and opposing evidentiary materials. For good cause, it is the RECOMMENDATION of the Magistrate Judge that Defendant City of Dothan and Steve Parrish's Motion for Summary Judgment (Doc. 42) be GRANTED and that the Defendant Officers' Motion for Summary Judgment (Doc. 44) be GRANTED in part and DENIED in part.

         II. SUMMARY JUDGMENT STANDARD

         Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where Athere is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.@ This standard can be met by the movant, in a case in which the ultimate burden of persuasion at trial rests on the nonmovant, either by submitting affirmative evidence negating an essential element of the nonmovant's claim, or by demonstrating that the nonmovant's evidence itself is insufficient to establish an essential element of his or her claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Jeffery v Sarasota White Sox, Inc., 64 F.3d 590, 593 (11th Cir. 1995); Edwards v. Wallace Cmty Coll, 49 F.3d 1517, 1521 (11th Cir. 1995). The burden then shifts to the nonmovant to make a showing sufficient to establish the existence of an essential element of his claims, and on which he bears the burden of proof at trial. Id. To satisfy this burden, the nonmovant cannot rest on the pleadings, but must, by affidavit or other means, set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e).

         The court's function in deciding a motion for summary judgment is to determine whether there exist genuine, material issues of fact to be tried; and if not, whether the movant is entitled to judgment as a matter of law. See Dominick v. Dixie Nat t Life Ins. Co., 809 F.2d 1559 (11th Cir. 1987). It is substantive law that identifies those facts which are material on motions for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 258 (1986); See also DeLong Equip. Co. v. Washington Mills Abrasive Co., 887 F.2d 1499 (11th Cir. 1989).

         When the court considers a motion for summary judgment, it must refrain from deciding any material factual issues. All the evidence and the inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmovant. Earley v. Champion Intl Corp., 907 F.2d 1077, 1080 (11th Cir. 1990). See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The movant bears Athe exacting burden of demonstrating that there is no dispute as to any material fact in the case." Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983).

         III. FACTUAL HISTORY

         The facts of this matter are largely in dispute. The law is clear; this Court must take the evidence in the light most favorable to the nonmovant. Early, 907 F.2d. at 1080. Indeed, the United States Supreme Court has recently reaffirmed this principle in precisely the same factual context as the instant action. See, Tolan v. Cotton, 134 S.Ct. 1861(2014)(Vacating and remanding Fifth Circuit's opinion affirming grant of summary judgment against Plaintiff suspect in a § 1983 action brought against Defendant police officer alleging the use of excessive force in violation of the Fourth Amendment.). Thus, while the statement of facts in this opinion may not ultimately be the facts proven at trial, the Court must and has drawn all inferences in favor of Bryant for purposes of deciding Defendants' Motions for Summary Judgment. In sum, the Court, as it is required to do, has accepted Bryant's version of the facts as testified to by him at deposition and in his affidavit and leaves credibility determinations to the jury. See Strickland v. Norfolk Southern Ry. Co., 692 F.3d 1151, 1162 (11th Cir. 2012) (“Where a fact-finder is required to weigh a deponent's credibility, summary judgment is simply improper.”).

         It is undisputed that on November 21, 2014, Dothan police officers Matthew Krabbe, Thomas Davis, David Saxon, Robert Cole (“the Defendant officers”) and Jonathan Godwin were conducting surveillance in the parking lot of the Crossings Apartments in Dothan, Alabama. Officer Krabbe had received information from a confidential informant that Jetavian Bryant would be traveling to these apartments on this date in a newer model, silver, Lexus vehicle and have in his possession methamphetamine. Officer Krabbe had relayed this information to the other officers. (Doc. 45; Krabbe Affid. Ex. A, Davis Affid. Ex. B, Saxon Affid. Ex. C, Cole Affid. Ex. D, Godwin Affid. Ex. E). About 1:00 p.m. a silver, newer model Lexus drove into the parking lot carrying Bryant whom the officers recognized. After the Lexus parked, the five officers approached on foot. Bryant was seated in the right rear passenger seat behind a female who was seated in the front passenger seat. Another female sat in the driver's seat. (Doc. 45; Krabbe Affid. Ex. A). From this point the Plaintiff's and Defendants' versions of fact sharply diverge.

         The Defendant officers claim that as they approached the car, Bryant, who was seated in the backseat of the car, was seen making suspicious movements with his hands. (Doc. 45; Krabbe Affid. Ex. A; Davis Affid. Ex.B). They further claim that as Officer Krabbe opened Bryant's car door, Officer Saxon, who saw Bryant holding a handgun, yelled “that he had a gun”. (Doc. 45; Saxon Affid. Ex C at p. 3). Next, the officers “pull him and he stands up” to get out of the vehicle. (Doc. 51; Krabbe Depo. Ex. 3 at pp. 49:16-20). The officers claim, however, that Bryant resisted giving them control of his hands and he “pulled his hands away from us.” (Doc. 51; Krabbe Depo. Ex. 3 at pp. 50-51:14-16).

         Bryant, however, testified at deposition that as the officers approached the vehicle, he put the gun on the floorboard of the car and exited the car, turning his body towards the car and placing both of his hands on top of the roof of the car. (Doc. 51; Bryant Depo. Ex. 1 at pp. 58-61). He further stated in his Affidavit that “[a]t no time did I resist arrest.” (Doc. 51; Bryant Affid. Ex 9 at p. 1). Specifically, he stated that as he got out of his car, the officers exited their cars and were running toward him. (Doc. 51; Bryant Depo. Ex. 1 at pp. 61:15-18; 63:7-14). He further testified that the officers did not say anything and gave no commands; and even though he was “already in surrender mode”, they ran up to him and started punching and hitting him. (Doc. 51; Bryant Depo. Ex. 1 at p. 62:9-11; Bryant Affid. Ex.9).

         Bryant never testified at deposition what he did with his hands after the put them on the car. He did testify, however, that he could not count how many times the officers punched him while “yelling hit him with the gun, hit him with the flashlight, knock him out. All that shit, and give me your hands at the same time.” (Doc. 51; Bryant Depo. Ex. 1 at p. 65:9-12). This testimony is in direct conflict with Plaintiff's preceding testimony that the officers did not say anything to him. Further, this testimony is the only time Plaintiff testified about the state of his hands following his placing them on the car.

         To the contrary, Officer Krabbe testified that he got out of his car and approached the passenger side of Bryant's vehicle. He opened the backdoor to Bryant's vehicle and when he heard Saxon yell gun, Krabbe grabbed both of Bryant's hands. (Doc. 51; Krabbe Depo. Ex. 3 at pp. 42-45.) At no time did Officer Saxon ever inform the other officers that the gun remained in the car. (Doc. 51, Saxon Depo. Ex. 2 at pp. 44-45). The officers state that Bryant refused to get out of the car, to get on the ground, to surrender his hands and resisted the officer's efforts to force him to the ground to be hand cuffed. (Doc. 45; Krabbe Affid. Ex. A; Davis Affid, Ex. B; and Saxon Affid. Ex. C). Officer Krabbe admits to striking Bryant in his arms in an effort to get his hands cuffed behind his back and he admits that he “gave him a couple knee strikes, too.” (Doc. 51; Krabbe Depo. Ex. 3 at pp. 53, 56:20-21).

         After the officers got Bryant out of the car, Officer Davis testified that while the other officers were trying to get Bryant's hands behind him to be handcuffed, he “grabbed them all and just did a hip toss and then . . . everyone went to the ground at that time.” (Doc. 51; Davis Depo. Ex. 4 at pp. 60-61.) Officer Godwin fell on top of Bryant. (Doc. 51; Davis Depo. Ex.4 at p. 67). Officer Godwin admits that in an attempt to get Bryant hand cuffed, he “g[a]ve him a palm heel strike to his left shoulder.” (Doc. 51; Godwin Depo. Ex. 5 at p. 26:15-16). The Defendant officers admit to striking Bryant's body with hands or knees in to force him to let the officers pull his hands out from under his body. (Doc. 51; Krabbe Depo. Ex. 3 at pp. 61-62, 80; Cole Depo. Ex. 6 at pp. 41, 42; Use of force Report Ex. 7.) Officer Davis admits that he put his hand on Bryant's head “because he was trying to get up” and “held [his head] against the ground.” (Doc. 51; Davis Depo. Ex. 4 at p. 68:4-5, 65:19). Bryant claims that while he was on the ground Davis punched and choked him “squeezing my larynx” and “[h]e told me that he was going to kill me.” (Doc. 51; Bryant Depo. Ex. 1 at p. 64).

         After Bryant was handcuffed, Krabbe patted him down to check for weapons because they still did not know where the gun was. Then Bryant was placed in the back of the vehicle. (Doc. 51; Krabbe Depo. Ex. 3 at pp. 62-64). Bryant told the officers that he threw a brown bag out of the window, so Krabbe and Saxon went to look for it. (Doc. 51, Bryant Depo. Ex. 1 at p. 75:21-24; Krabbe Depo. Ex. 3 at pp. 64-66; Davis Depo. Ex. 4 at pp. 80-81; Cole Depo. Ex. 6 at pp. 41-42). However, one of the women accompanying Bryant in the car told Officer Krabbe that she did not see Bryant throw anything out of the window. (Doc. 51, Krabbe Depo. Ex. 3 at p. 69:14-18). After failing to find the brown bag, Davis took Bryant, who was still handcuffed, out of the car and put him on the ground. (Doc. 51; Davis Depo. Ex. 4 at pp. 85-87). Davis testified that “[b]ased upon [his] experience in narcotics investigations, [he] knew that drug dealers and users like Mr. Bryant often hide their drugs down their pants.” (Doc. 45-7, Davis Affid., Ex. B.) Davis further testified that he “checked him, patted him down, patted down his groin. . . . he had his pants and his boxers on. I took his boxers, lifted them up and I could see a plastic bag sticking in between his butt cheeks.” Thereafter, Davis got gloves, and pulled out the bag, which contained narcotics. (Doc. 51; Davis Depo. Ex. 4 at pp. 88-89). Further Davis testified that he never pulled Bryant's pants down and that during this search the female officers were not nearby. However, he also testified that a female apartment manager “walked by” during his search of Bryant. (Doc. 51; Davis Depo. Ex. 4 at pp. 89-90).

         To the contrary, Bryant testified that “[t]hey slammed me down and stepped -- one of them stepped on my face. One stepped on my back.” (Doc. 51; Bryant Depo. Ex. 1 at pp. 66). He further claims that Davis “went in my rectum” . . .”with his fingers in my ass” to the retrieve the plastic bag. (Doc. 51; Bryant Depo. Ex. 1 at pp. 67-68).

         The remainder of the facts are not in dispute. Bryant was transported to the Dothan City Jail and booked for unlawful possession of a controlled substance and possession of marijuana, first degree. (Doc. 45; Krabbe Affid. Ex. A, Davis Affid. Ex. B, Saxon Affid. Ex. C, Cole Affid. Ex. D.) Upon making and signing his complaint, Bryant was transported to the Southeast Alabama Medical Center where he arrived at 1700 hours. (Doc. 45; Krabbe Affid. Ex. A and A-2, Affid. of Custodian of Hospital Records, Ex. F). Bryant claims that he “suffered broken blood vessels in [his] eye, bruises, cuts and soreness.” (Doc. 51; Bryant Affid. Ex. 9 at ¶ 2). He further testified at deposition that “[i]t took [him] about two months for [his] arm and shoulder to heal up and for [him] to lift stuff again.” (Doc. 51; Bryant Depo. Ex.1 at p. 73:21-23. Bryant's x-rays were normal; he was given Anaprox and was discharged at approximately 2000 hours. (Doc. 45; Affid. of Custodian of Hospital Records, Ex. F). Bryant was returned to the Dothan City Jail. (Doc. 45; Krabbe Affid. Ex. A-1). Bryant pleaded guilty to the charges in this case on May 22, 2017. (Doc. 45; Krabbe Affid. Ex. A-4 and A-5).

         IV. DISCUSSION

         A. Refining the Causes of Action in the Complaint

         The Eleventh Circuit has counseled a factual distinction based upon when the use of force occurred in relationship to when the suspect was handcuffed. See Lloyd v. Van Tassell, 318 Fed. App'x. 755, 758 (11th Cir. 2009)(“[F]orce is more likely to be unlawful if it occurred after a suspect was already secured, the arrest effected, and danger vitiated, as opposed to force that occurred while the officer was still securing a suspect.”) citing Lee v. Ferraro, 284 F.3d 1188, 1199-1200 (11th Cir. 2002). Thus, for the purposes of this opinion, the Court will evaluate Plaintiff's claims in the context of this factual distinction. Indeed, Plaintiff alleges multiple claims arising from two distinct factual scenarios involving allegations of excessive force and an unreasonable body cavity search. The first scenario began when the Officers approached Bryant's car and ended once Bryant was placed in handcuffs. The second scenario began when Officer Davis removed Bryant, who was subdued and in handcuffs, from the police car and allegedly conducted a body cavity search on Plaintiff to locate the drugs. (Doc. 29).

         Count I[1] alleges that the Defendant Officers were deliberately indifferent to the Plaintiff's constitutional rights to be free from excessive force during an arrest based upon the Defendant Officer's “unofficial practice” of using excessive force and the customs and policies concerning training. (Doc. 29 at p. 6) Plaintiff admits that summary judgment is due to be granted on this claim against the City of Dothan and Steve Parrish. As a result, the Court understands this claim to be one for excessive force against the Defendant Officers based upon an “unofficial practice” and as such it is essentially a general statement of the more specific allegations contained in Claims II, III and IV, which all raise Fourth Amendment excessive force claims brought pursuant to 42 U.S.C. § 1983.

         Count II alleges that Defendant Davis violated Bryant's Fourth Amendment rights to be free from an unlawful search and seizure when he conducted the strip search and body cavity search of Plaintiff. Count III[2] alleges that Defendant Officers violated Bryant's Fourth Amendment rights to be free from excessive force. Count IV alleges that Defendants Krabbe, Saxon, and Cole violated Bryant's Fourth Amendment rights by failing to prevent excessive and unreasonable force during the arrest.

         Counts V, VI, VII, VIII and X allege claims only against Defendants City of Dothan and Chief of Police Parrish. Since Plaintiff has specifically conceded summary judgment is due to be granted on Counts VI, VII, VIII and X against the City of Dothan and Defendant Parrish, (Doc. 52), the Court concludes that summary judgment is due to be entered on these claims and these claims dismissed in full. The Court notes that Plaintiff does not specifically list Count V in the claims where he agrees summary judgment is due to be entered. However, Count V, like the other claims, is a claim brought solely against the City of Dothan and Defendant Parrish. Based on Plaintiff's Response to the Defendants' City of Dothan and Steve Parrish wherein he offers no argument against summary judgment on Count V and concedes all other claims against these Defendants are due to be dismissed, (Doc. 52), the Court concludes summary judgment is also due to be entered on Count V. See A.L v. Jackson County School Bd., 635 Fed. App'x. 774, 787 (11th Cir. 2015) (“Appellants waived their claims by failing to brief them, failing to respond to the Board's motion for summary judgment.”)

         Count IX alleges state law claims for assault and battery/intentional infliction of emotional distress against Defendants Davis, Krabbe, Saxon, and Cole. However, Plaintiff provides argument in his Response to the Defendant Officers' Motion for Summary Judgment solely as to the claim for assault. Accordingly, the Court concludes that Plaintiff has waived any other state law claims that he may have attempted to bring in his Second Amended Complaint. (Doc. 29). See A.L, 635 Fed. App'x at 787. The Defendants argue that Bryant is collaterally estopped from raising these claims and that state law immunity requires summary judgment be entered on the assault claim.

         B. Claims for Excessive Force - Counts I, II, and III

         The Defendant Officers argue that summary judgment is due to be granted on claims I, II, and III because (1) Bryant can not establish a violation of his Fourth Amendment rights under Graham v. Conner, 490 U.S. 386 (1989); (2) there was only a de minimus amount of force and injury; and (3) the Defendant Officers are entitled to qualified immunity.

         At the outset the Court recognizes the Eleventh Circuit has clearly stated that “[a] law enforcement officer's right to arrest necessarily carries with it the ability to use some force in making the arrest.” Brown v. City of Huntsville, 608 F.3d 724, 740 (11th Cir. 2010) (Officer's conduct in forcibly removing Plaintiff from car would not support a claim for excessive force). In determining what constitutes excessive force, the United States Supreme Court has counseled a reasonableness standard. Graham, 490 U.S. at 396. Indeed, the Graham Court stated that the proper application of the reasonableness inquiry

“requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”

Id. Defendant Officers argue that because Plaintiff suffered only a de minimus amount of injury, this Court should conclude that the force used was objectively reasonable. The Eleventh Circuit has made clear that “a minimal amount of force and injury . . . will not defeat an officer's qualified immunity in an excessive force case.” See Nolin v. Isbell, 207 F.3d 1253, 1258 (11th Cir. 2000)(Reversing the district court's denial of summary judgment for Defendant officer on the basis that de minimis force will not support a claim for excessive force under the Fourth Amendment).

         However, the Eleventh Circuit has explained that “the relationship between the need and the amount of force used, and the extent of the injury inflicted” is a factor to be considered in making the “objectively reasonable” determination but is not “determinative”. Lloyd, 318 Fed. App'x at 757-58 citing Lee, 284 F.3d 1198. Indeed, the Eleventh Circuit further explained

“[t]he extent of the injury is not determinative, because reasonable force does not become excessive merely because it aggravates a pre-exiting condition of which the officer was unaware. Lee, 284 F.3d at 1200. Conversely, objectively unreasonable force does not become reasonable or de minimis merely because the plaintiff only suffered minimal harm. Id.”

Lloyd, 318 Fed. App'x at 758. (Emphasis added). Thus, the Court will consider the amount of Plaintiff's injury as a factor to be considered alongside the Graham factors in determining whether the force used in this case was excessive. To do so, the Court must consider these factors in the context of the Defendant Officer's argument that they are entitled to qualified immunity.

         The United States Supreme Court has counseled that resolution of the qualified immunity involves a two-part inquiry.

The first asks whether the facts ‘[t]aken in the light most favorable to the party asserting the injury . . . show the officer's conduct violated a [federal] right[.]' . . . The second prong of the qualified-immunity analysis asks whether the right in question was ‘clearly established' at the time of the violation.

Tolan v. Cotton, 134 S.Ct. 1861, 1865-66 (2014). There is no question that at the time of Bryant's arrest, November 21, 2014, the Eleventh Circuit had made clear “gratuitous use of force when a criminal suspect is not resisting arrest constitutes excessive force.” See Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008). Thus, the question upon which this Court will focus its attention is whether taking the facts in the most favorable light to Bryant, the Defendant Officers' conduct violated Graham, 490 U.S. 386 (1989). With this background in mind, the Court now turns its attention to Bryant's specific claims of excessive force which the Court will view in two parts - (1)the actions of the officers before Bryant was handcuffed and (2)the actions of the officers after Bryant was handcuffed.

         1. Events Before Bryant was Handcuffed.

         As this Court has previously noted, the Defendant Officers' testimony of the events occurring before Bryant is handcuffed differ sharply from Bryant's own testimony. This Court may not resolve genuine issues of material fact in favor of the Officers nor can it make credibility determinations on summary judgment, see Tolan, 134 S.Ct. at 1866; thus, the Court must accept Bryant's version of the facts. Bryant testified at deposition that he was parked in the parking lot of the Crossings Apartments in Dothan, Alabama in a silver Lexis with two women. He was seated in the backseat on the passenger side and admits that he was there to sell drugs. He stated that he was carrying the drugs in his rectum and he had a gun. When he saw the police pull in behind him and before they had gotten out of ...


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