United States District Court, N.D. Alabama, Middle Division
MICHELLE LEE HELM, individually and as Guardian and next friend of T.D.H., a minor child, Plaintiffs,
RAINBOW CITY, ALABAMA, et al., Defendants.
ANNEMARIE CARNEY AXON, UNITED STATES DISTRICT JUDGE
evening of January 16, 2015, Rainbow City police officers
James Fazekas, George Morris, Justin Gilliland, and Timothy
Kimbrough were involved in the tasing of Michelle Lee Helm
(“Ms. Helm”) and her minor daughter, T.D.H.,
while T.D.H. was having a grand mal seizure. Ms. Helm, on
behalf of herself and her daughter, filed this suit under 42
U.S.C. § 1983, alleging that the four police officers,
the City of Rainbow City, Alabama (the “City”),
the City's police chief, Greg Carroll, and a number of
fictitious defendants violated their constitutional rights.
Ms. Helm and T.D.H. assert the following claims:
(1) Officer Fazekas used excessive force against Ms. Helm
(2) Office Fazekas failed to intervene in the use of
excessive force against Ms. Helm and T.D.H. (“Counts
Two and Three”);
(3) Officer Morris used excessive force against T.D.H.
(4) Officer Gilliland failed to intervene in the use of
excessive force against Ms. Helm and T.D.H. (“Counts
Six and Eight”);
(5) Officer Kimbrough failed to intervene in the use of
excessive force against Ms. Helm and T.D.H. (“Counts
Ten and Eleven”);
(6) Chief Carroll failed to intervene in the use of excessive
force against Ms. Helm and T.D.H. (“Counts Twelve and
(7) Chief Carroll and the City failed to appropriately train
and supervise the City's police officers (“Counts
Fourteen and Fifteen”);
(8) Officer Fazekas falsely imprisoned or falsely arrested
Ms. Helm (“Count Twenty-One”); and
(9) Officer Morris falsely imprisoned or falsely arrested
T.D.H. (“Count Twenty-Two”).
(Doc. 26 at 25-31, 33-39, 40-42, 44-56, 62-65).
case comes before the court on three motions for summary
judgment: one jointly filed by Chief Carroll and Officers
Fazekas, Kimbrough, and Morris; one filed by Officer
Gilliland; and one filed by the City. (Docs. 83, 87, 89). The
court WILL GRANT the City's motion for summary judgment
and WILL ENTER SUMMARY JUDGMENT in favor of the City and
against Ms. Helm and T.D.H. on Count Fifteen, because they
have not presented any evidence that the City has a policy or
custom of officers using excessive force or that it has
failed to adequately train its officers.
court WILL GRANT IN PART and WILL DENY IN PART the two
remaining motions for summary judgment filed by the
individual officers. The court WILL DENY the motion for
summary judgment on Counts One and Two because disputes of
material fact exist about whether Officer Fazekas is entitled
to qualified immunity on the claims that he used excessive
force and failed to intervene in the use of excessive force
against Ms. Helm. The court WILL ENTER SUMMARY JUDGMENT in
favor of Officer Fazekas and against T.D.H. on Count Three
because the undisputed facts show that he did not have an
opportunity to intervene in the use of force against her.
court WILL DENY the motion for summary judgment on Count Five
because genuine disputes of fact exist about whether Officer
Morris is entitled to qualified immunity. The court WILL
ENTER SUMMARY JUDGMENT in favor of Officer Gilliland and
against Ms. Helm on Count Six; in favor of Officer Kimbrough
and against Helm on Count Ten; and in favor of Chief Carroll
and against Helm on Count Thirteen, because the undisputed
evidence is that those officers had no opportunity to
intervene in the uses of force at issue on those counts. The
court WILL DENY the motion for summary judgment on Counts
Eight and Eleven because genuine disputes of material fact
exist about whether Officer Gilliland and Officer Kimbrough
could have intervened before the use of force against T.D.H.
Twelve relates to Chief Carroll's alleged failure to
intervene in three separate tasings of T.D.H. The court WILL
DENY the motion for summary judgment as to the first tasing
because genuine disputes of material fact exist about whether
Chief Carroll could have intervened in that use of force, but
the court WILL GRANT the motion and WILL ENTER SUMMARY
JUDGMENT in favor of Chief Carroll and against T.D.H. as to
the second and third tasings because the undisputed evidence
is that he did not have an opportunity to intervene before
those uses of force. The court WILL GRANT the motion and WILL
ENTER SUMMARY JUDGMENT in favor of Chief Carroll and against
Plaintiffs on Counts Fourteen because they did not establish
a causal connection between Chief Carroll's actions and
any constitutional deprivations.
the court WILL GRANT summary judgment in favor of Officer
Fazekas and against Ms. Helm on Count Twenty-One because she
has presented no evidence that he was involved in the
decision to arrest or restrain her. As for Count Twenty-Two,
to the extent T.D.H. has asserted a false arrest claim
against Officer Morris, the court WILL GRANT summary judgment
in his favor because she has not presented any evidence that
she was arrested. But the court WILL DENY him summary
judgment on the false imprisonment claim because disputes of
fact exist about whether Officer Morris assisted in
motion for summary judgment, the court “draw[s] all
inferences and review[s] all evidence in the light most
favorable to the non-moving party.” Hamilton v.
Southland Christian Sch., Inc., 680 F.3d 1316, 1318
(11th Cir. 2012) (quotation marks omitted). The court will
describe the facts in that light, noting that “facts,
as accepted at the summary judgment stage of the proceedings,
may not be the actual facts of the case.” Oliver v.
Fiorino, 586 F.3d 898, 901 (11th Cir. 2009) (quotation
marks omitted). That is especially true in a case like this,
where not only do the opposing parties disagree on what
happened, but the witnesses on behalf of the plaintiffs also
disagree in irreconcilable ways about what happened.
facts on which everyone agrees are few and far between.
First, everyone agrees that this case involves three
applications of a Taser in “drive stun mode” on
T.D.H. and one application of a Taser in “drive stun
mode” on Ms. Helm. (Doc. 26 at 9 ¶ 33, 11
¶¶ 44-45). Drive stun mode is used as a pain
compliance weapon. (Doc. 95-3 at 29) (citing Hoyt v.
Cooks, 672 F.3d 972, 976 n.5 (11th Cir. 2012)). In drive
stun mode, the Taser probes do not enter the individual's
body. (Doc. 95-3 at 28-29). Instead, the weapon is pressed
against a person's body and pulling the trigger releases
an electric current. (Id. at 29). The electric
current causes a burning sensation but does not disrupt
muscle control. (Id.). In this way, drive stun
tasing is a lesser use of force than the more common type of
tasing, in which electro-muscular disrupter probes enter the
body, overriding the central nervous system and making muscle
control impossible. (Id.).
everyone agrees that T.D.H. suffers from a seizure disorder.
Her seizures typically cause her arms and legs to flail about
and saliva to run from her mouth. (Doc. 101-8 at 1 ¶ 6;
Doc. 101-5 at 23). On “waking” from a grand mal
seizure, T.D.H. does not know where she is and it takes a
minute to get her bearings. (Doc. 101-4 at 14).
everyone agrees that on January 16, 2015, T.D.H. and her
sister, D.H., went to a concert in Rainbow City, Alabama. At
the end of the concert T.D.H. had a grand mal seizure. As a
crowd began to gather, D.H. knelt beside T.D.H. and held
T.D.H.'s head-a procedure D.H. had been instructed to
perform whenever T.D.H. had a seizure. (Doc. 101-8 at 2
Rainbow City police officers, including Defendants James
Fazekas, George Morris, Justin Gilliland, and Timothy
Kimbrough, were providing security for the concert that
night. (Doc. 101-3 at 9). Officer Gilliland was
the first officer to reach T.D.H. (Doc. 101-8 at 2
¶¶ 11-12). D.H. told Officer Gilliland that T.D.H.
was having a seizure and needed help. (Id. at 2
¶ 13). Officer Gilliland then held T.D.H.'s head so
that she would not slam it into the ground or injure herself.
(Doc. 101-1 at 21; Doc. 91-24 at 2; Doc. 91-25 at 3).
Officer Gilliland held T.D.H.'s head, Officer Fazekas
arrived and tried to move the crowd back. (Doc. 91-24 at 2;
Doc. 91-25 at 3). Officer Gilliland told Officer Fazekas that
T.D.H. was having a seizure and they “needed to make
sure she did not harm herself.” (Doc. 91-24 at 2-3;
Doc. 101-1 at 18). Eventually, someone picked T.D.H. up,
carried her to the lobby of the concert facility, and placed
her in a chair. (Doc. 101-8 at 2 ¶ 14; Doc. 91-24 at 3;
Doc. 91-25 at 3; Doc. 91-26 at 2). D.H., Officer Gilliland,
and Officer Fazekas followed behind.
parties' agreement on the facts ends here and they
present sharply conflicting evidence about what followed.
There is no video evidence of any of the tasings at issue,
the court is left with only witness testimony. The
defendants' recollections largely match each other, but
differ from the recollections of T.D.H., D.H., and Ms. Helm.
Meanwhile, T.D.H., D.H., and Ms. Helm recall the events
differently from each other, save their unanimous memory that
neither T.D.H. nor Ms. Helm did anything wrong. Yet no
evidence conclusively establishes which of the multiple
versions is correct, and at the summary judgment stage
“the [court's] function is not . . . to weigh the
evidence.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986); Holifield v. Reno, 115
F.3d 1555, 1561 (11th Cir. 1997) (holding that on a motion
for summary judgment, “[t]he court may not weigh
evidence to resolve a factual dispute”). Thus, for
purposes of this motion, the court must set out the version
most favorable to T.D.H. and Ms. Helm if any evidence
The Use of Force on T.D.H.
the lobby, T.D.H. stopped seizing and asked D.H. what had
happened. (Doc. 101-8 at 3 ¶ 16). D.H. told T.D.H. that
she had a seizure and was in the lobby. (Id. at 3
¶ 17). By that time, other officers-including the
City's Chief of Police, Greg Carroll-were present and
assisting T.D.H. (Id. at 3 ¶ 16; Doc. 91-6 at
18; Doc. 91-25 at 3). Officer Gilliland directed the other
officers to call the paramedics. (Doc. 91-24 at 3).
minute after she stopped seizing, T.D.H. began having another
seizure and fell onto the floor. (Doc. 101-8 at 3 ¶ 18;
Doc. 91-25 at 3; Doc. 91-24 at 3). D.H. told Officer
Gilliland that T.D.H. was having another seizure (doc. 101-8
at 3 ¶ 18), and he in turn told the other officers that
she was having another seizure and they needed to make sure
that she did not hurt herself. (Id. at 3 ¶ 18;
Doc. 91-24 at 3; Doc. 83-3 at 19). All of the officers,
including Officer Gilliland, Officer Fazekas, Officer
Kimbrough, and Chief Carroll, restrained T.D.H. to protect
her from injury. (Doc. 91-21 at 2; Doc. 91-25 at 3; Doc.
91-26 at 2; Doc. 101-3 at 52). Officer Fazekas then left
T.D.H. and went to open the doors to give T.D.H. fresh air.
(Doc. 83-2 at 18).
two minutes after T.D.H. started having her second seizure,
Officer Morris arrived in the lobby. (Doc. 101-8 at 3 ¶
20). Officer Gilliland told Officer Morris that T.D.H. was
having a seizure and required medical attention.
(Id. at 3 ¶ 21). Standing at T.D.H.'s feet,
Officer Morris began yelling at T.D.H. that if she did not
calm down he would tase her. (Id. at 3-4
¶¶ 22, 24). Officer Gilliland heard Officer Morris
make the threat. (Doc. 101-1 at 17). Officer Morris then took
out his Taser, waved it in front of T.D.H. and repeated his
threat to tase her. (Doc. 101-8 at 4 ¶ 27; see
also Doc. 101-1 at 17).
the officers present stopped Officer Morris (doc. 101-2 at
12, 26; doc. 101-8 at 4 ¶ 26; doc. 101-1 at 16-17), and
he followed through on his threat, tasing the immobilized
T.D.H. using “drive stun” mode. (Doc. 101-2 at
10; Doc. 101-3 at 21; Doc. 101-8 at 4 ¶¶ 25, 29,
30). Chief Carroll, concerned that the paramedics were taking
too long and not knowing if T.D.H.'s seizure was drug or
alcohol related, walked away after the tasing to find out
where the paramedics were. (Doc. 101-3 at 22).
after the first tasing, Officer Morris told T.D.H. that he
was going to tase her again if she didn't stop fighting.
(Doc. 101-8 at 5 ¶ 37). Officer Gilliland, who heard the
threat, did not believe that T.D.H. was any threat to Officer
Morris. (Doc. 101-1 at 22-23). It is unclear whether T.D.H.
herself heard Officer Morris' threat. She testified that
she did not (doc. 101-4 at 21), but her sister testified that
T.D.H. screamed “what's going on? Please let me
go” (doc. 101-8 at 5 ¶ 37). Either way, Officer
Morris again followed through on his threat and tased T.D.H.
twice more in quick succession. (Id. at 6
¶¶ 40-41; Doc. 101-4 at 83). All told, Officer
Morris tased T.D.H. in the chest three times. And all three
tases occurred while police officers were holding T.D.H.
down. (Doc. 101-1 at 18, 23; Doc. 101-8 at 6 ¶ 41).
After the third tasing, T.D.H. blacked out. (Doc. 101-4 at
21). She regained consciousness on a gurney (id. at
67), and was later transported to a hospital (see
Id. at 25). She was never arrested or charged with any
crime. (Doc. 101-2 at 28).
undisputed that T.D.H. was not a flight risk at the time
Officer Morris tased her. (Doc. 101-2 at 33). It is also
undisputed that T.D.H. was not a threat to Officer Morris or,
for that matter, to anyone else. (Doc. 101-1 at 23; Doc.
101-2 at 16, 37). Officer Morris testified that he decided to
tase T.D.H. in order to get her to comply with his commands
and to calm down. (Doc. 101-2 at 37).
The Use of Force on Ms. Helm
same evening, Ms. Helm received a phone call informing her
that T.D.H. was having a seizure. After she received the
call, Ms. Helm immediately got into her car and drove to the
concert venue, still dressed in her pajamas and slippers.
(Doc. 101-5 at 28; Doc. 101-8 at 5 ¶ 32). When she
arrived, she saw T.D.H. seizing (doc. 101-5 at 28), with a