United States District Court, M.D. Alabama, Southern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
F. MOORER UNITED STATES MAGISTRATE JUDGE
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).
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.
SUMMARY JUDGMENT STANDARD
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).
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
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).
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
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.
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
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).
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.
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).
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).
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).
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).
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).
Refining the Causes of Action in the Complaint
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).
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. §
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 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
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
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.
Claims for Excessive Force - Counts I, II, and III
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.
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
“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
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).
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.
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.
Events Before Bryant was Handcuffed.
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 ...