United States District Court, M.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
M. BORDEN UNITED STATES MAGISTRATE JUDGE.
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.
JURISDICTION AND VENUE
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.
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. He testified that
he was hit one “good hard time.” Doc. 68-4 at
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.
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.
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.
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.
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.
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,
Excessive Force Claim
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).
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).
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.
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.
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),  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).
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.
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.
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