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Potter v. City of Dothan

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

September 6, 2018

DAVID POTTER, Plaintiff,
CITY OF DOTHAN, ALABAMA, et al ., Defendants.



         Plaintiff David Potter filed this lawsuit on September 9, 2016, asserting claims arising out of the force used by City of Dothan police officers during his arrest. Now pending before the court are the Motion for Summary Judgment filed by Defendants City of Dothan and Steve Parrish (Doc. 57) and the Motion for Summary Judgment filed by Defendants Timothy Traynham and Ray Mock. Doc. 59. After careful consideration of the parties' submissions, the applicable law, and the record as a whole, and for reasons to be discussed, the Motion for Summary Judgment filed by the City Dothan and Parrish is due to be GRANTED in part and DENIED in part, and the Motion for Summary Judgment filed by Traynham and Mock is due to be DENIED.


         The court has subject-matter jurisdiction over the claims in this lawsuit pursuant to 28 U.S.C. §§ 1331 and 1367. The defendants do not contest personal jurisdiction or venue, and the court finds adequate allegations to support both.


         On September 10, 2014, several City of Dothan police officers responded to a domestic violence call involving Potter. Two of the officers responding were Traynham and Mock. Doc. 60-2 at 3. Parrish is the current Chief of Police for the City of Dothan, but was not the Chief of Police on the day in question. Doc. 58-2.

         William Glover states in an affidavit that he is an officer who responded to the domestic violence call and met Sergeant Wieczorek, who advised him that Potter had assaulted a victim and left the scene. Doc. 60-2 at 3. It was reported that gun shots had been heard and another officer recovered a spent shell casing at the scene. Doc. 60-2 at 3. The officers received advisories about Potter's past law enforcement interactions. Doc. 60-2 at 3.

         Officers then set up a perimeter at the residence of Helen Potter, Potter's mother, and they found Potter's vehicle at her home. Doc. 60-2 at 3. Two of the officers, Traynham and Mock, knocked at the door of the residence. Doc. 60-2 at 4. Helen Potter answered the door and allowed the officers to enter. Doc. 60-2 at 4. After entering the home, the officers found Potter in a bedroom. Doc. 60-2 at 5.

         Potter testified in his deposition that he laid on the floor on his stomach when the officers came in the room calling his name. Doc. 68-4 at 64:19-65:2. Potter maintains that he did not fall down, but laid down. Doc. 68-4 at 70:5-8. Potter further testified that Traynham kneed him in the face while he was on his stomach. Doc. 68-4 at 65:4-9. According to Potter, when he was kneed in the face while lying on his stomach he was not yet in handcuffs, but police officers were holding his hands behind his back while in the process of placing handcuffs on him. Doc. 68-4 at 70:1-17.[1] He testified that he was hit one “good hard time.” Doc. 68-4 at 69:12-14.[2]

         Glover states in his affidavit that he assisted Mock in handcuffing Potter. Doc. 60-2 at 5. The verified claim that Potter filed with the City of Dothan states that when his mother answered the door Potter was lying face down on the floor, two or three officers grabbed his arm, and Traynham punched him on the left side of his face and kneed him in his right eye. Doc. 60-1 at 23.

         Potter was transported to the hospital by Officer Clayton Reynolds and treated for injuries he received during his arrest. Doc. 60-6 at 4. The medical records document an “orbital floor fracture.” Doc. 68-5 at 21. The deposition testimony of Dr. Bolton has been provided to the court to explain this fracture. Doc. 60-7 at 4:14-15. Bolton testified that the weakest part of the orbit around the eye is the inner wall, where the bone is thinnest. Doc. 60-7 at 3:5-11. He further explained that Potter's bone fractured through the floor into the sinus as force was applied to the orbit. Doc. 60-7 at 3:12-14. When asked, Bolton agreed that the injury suffered by Potter generally occurs when a direct blow is received from the front to the eye, the orbital wall pressure is high, and the weakest wall, the orbit floor, breaks. Doc. 60-7 at 5:11-19. He also explained that this type of injury heals on its own. Doc. 60-7 at 4:1-2.

         After his discharge from the hospital, the officers took Potter to the Dothan City Jail. Doc. 60-4 at 6. Potter was charged with domestic violence and resisting arrest. Doc. 60-4 at 6. The domestic violence charge has been dismissed, and Potter was found guilty of resisting arrest at trial. Doc. 60-2 at 8.

         Potter brings claims in his amended complaint pursuant to 42 U.S.C. § 1983 for excessive force against Traynham and failure to intervene against Mock. Potter asserts additional counts against Parrish and the City of Dothan that are different theories of municipal liability-policymaker ratification; inadequate training, custom and practice; and supervisor liability. Additionally, Potter brings state-law claims that he labels as assault and battery/intentional infliction of emotional distress and for respondeat superior under state law. Doc. 23 at 6-12.


         A. Federal Claims

         1. Individual Defendants

         The individual defendants move for summary judgment on the federal claims against them on the basis of qualified immunity. Qualified immunity is a protection designed to allow government officials to avoid the expense and disruption of trial. Ansley v. Heinrich, 925 F.2d 1339, 1345 (11th Cir. 1991). As a preliminary matter, the court must determine whether the public official was acting within the scope of his discretionary authority at the time the allegedly wrongful acts occurred. See Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir. 1988). Potter does not dispute that the individual defendants were acting within their discretionary authority in this case.

         Once it is established that a defendant was acting within his discretionary authority, the court must determine whether “[t]aken in a light most favorable to the party asserting the injury . . . the facts alleged show the officer's conduct violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). “[I]f a constitutional right would have been violated under the plaintiff's version of the facts, ” the court must then determine “whether the right was clearly established.” Wood v. Kesler, 323 F.3d 872, 878 (11th Cir. 2003). Requiring that a constitutional right be clearly established means that liability attaches only if “[t]he contours of the right [violated are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” United States v. Lanier, 520 U.S. 259, 270 (1997). In other words, a defendant is entitled to “fair warning” that his conduct deprived his victim of a constitutional right. Hope v. Pelzer, 536 U.S. 730, 741 (2002).

         a. Excessive Force Claim

         Use of excessive force is an area of the law “in which the result depends very much on the facts of each case, ” and therefore police officers are entitled to qualified immunity unless existing precedent “squarely governs” the specific facts at issue. Kisela v. Hughes, 138 S.Ct. 1148, 1153 (2018).

         The Fourth Amendment's freedom from unreasonable seizures encompasses the right to be free from excessive force during the course of criminal apprehension. Graham v. Connor, 490 U.S. 386 (1989); Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009). Excessive force is measured by an objective reasonableness standard which balances the nature and quality of the intrusion on Fourth Amendment interests against the government interest at stake. Oliver, 586 F.2d at 905. Courts consider the Graham factors, which take into account the severity of the crime, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect actively resists arrest or attempts to evade arrest by flight. Id. Other factors to consider may include the need for application of force, the relationship between the need and the amount of force used, and the extent of the injury inflicted. Lee v. Ferraro, 284 F.3d 1188, 1198 n.7 (11th Cir. 2002).

         The defendants argue that Traynham is entitled to qualified immunity because there is no constitutional violation in the form of excessive force in this case. The defendants state that the first Graham factor weighs heavily in Traynham's favor because Potter had been reported for fleeing the scene after an allegation of domestic violence and firing a weapon. The defendants argue that the second favor weighs in Traynham's favor because Potter was reported as being in possession of and discharging a firearm. The defendants also contend that this court may disregard Potter's deposition testimony that he was not resisting arrest because he was convicted of that charge.

         The court begins with the last point-the evidence to be considered in the Graham analysis. The defendants take the position that the court may ignore Potter's deposition testimony that he did not resist arrest because he has been convicted of resisting arrest. In support, the defendants present a record from the Dothan Municipal Court which does reflect that Potter was convicted of resisting arrest. Doc. 60-2 at 8. The court has not, however, been provided with a transcript of that proceeding or any other evidence regarding the substance of the charge upon which Potter was convicted.

         The Eleventh Circuit addressed the effect of a state-court conviction for resisting arrest on a federal excessive force claim in Hadley v. Gutierrez, 526 F.3d 1324, 1331 (11th Cir. 2008). In Hadley, the plaintiff pleaded guilty to resisting arrest with violence in state court and also brought a federal claim asserting excessive use of force. Id. Applying Heck v. Humphrey, 512 U.S. 477 (1994), [3] the court explained that “[b]ecause of his guilty plea, we assume he resisted at some point during the night. What we do not definitively know, however, is whether the punch complained about occurred at a time when Hadley was resisting.” Id. at 1331. The court explained that there could be a constitutional violation that would not be barred by Heck if the officer used force at a time when the plaintiff was not resisting arrest. Id. The court applied a similar analysis to the defendant's invocation of collateral estoppel in that case, stating that the guilty plea did not necessarily resolve the issue of whether the officer used force while the plaintiff was resisting arrest. Id. at 1332; see also M.D. ex rel. Daniels v. Smith, 504 F.Supp.2d 1238, 1252 (M.D. Ala. 2007) (applying Alabama law and finding that collateral estoppel did not bar the excessive force claim because there is no evidence that the claim was actually litigated during the state proceedings), aff'd, 278 Fed.Appx. 987 (11th Cir. 2008).

         Consistent with Hadley, the court finds that it may consider Potter's testimony with respect to his claim of excessive force. There is no developed record before the court as to the factual basis of the charge upon which Potter was convicted. Potter could have been convicted of resisting arrest based on his actions before or after the application of force. Hadley, 526 F.3d at 1331; M.D. ex rel. Daniels, 504 F.Supp.2d at 1252. For this reason, the court is not compelled to ignore his testimony.

         The defendants also urge the court not to accept Potter's version of the events that he was lying on the floor because he stated in his deposition that he was hiding in the back room. The defendants cite to a portion of Potter's deposition testimony in which he says that he did not lie down immediately when the officers came to the house, but went to the back of the house. Doc. 60-1 at 48-51. They point out that in his verified complaint filed with the City of Dothan Potter said he laid on the floor immediately. Doc. 60-1 at 23. The defendants cite authority for the proposition that a plaintiff cannot create a question of fact with an affidavit that merely contradicts, without explanation, previously given testimony. See Jenkins & Assoc., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 984).

         However, Potter's testimony about his location when the officers arrived is not necessarily inconsistent with, and does not undermine, his deposition testimony that at the time he was kneed in the eye, he was on the ground on his stomach, his arms were restrained, and was not resisting arrest. Doc. 68-4 at 65:4-9. When asked about the difference in the verified complaint, Potter said he was confused and mad when he gave it. Doc. 60-1 at 50:3-7. Potter clarified in his deposition, however, that the verified complaint was partially true because “[o]nce they identified me and identified them I laid down on the floor” in the back of the house where he had been hiding. Doc. 60-1 at 50:14-51:13. The court does not find that the law requires Potter's deposition ...

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