Helm v. Rainbow City

          MEMORANDUM OPINION

          ANNEMARIE CARNEY AXON, UNITED STATES DISTRICT JUDGE

         On the 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.

         Specifically, Ms. Helm and T.D.H. assert the following claims:

(1) Officer Fazekas used excessive force against Ms. Helm (“Count One”);

(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. (“Count Five”);

(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 Thirteen”);

(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).

         The 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.

         The 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.

         The 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.

         Count 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.

         Finally, 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 restraining her.

         I. FACTS

         On a 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.

         The 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.).

         Second, 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).

         Third, 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 ¶¶ 9-10).

         Several Rainbow City police officers, including Defendants James Fazekas, George Morris, Justin Gilliland, and Timothy Kimbrough, were providing security for the concert that night.^[1] (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).

         As 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.

         The 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, ^[2] so 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 supports it.

         A. The Use of Force on T.D.H.

         Once in 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).

         About a 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).

         About 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).

         None of 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.^[3] (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).

         Shortly 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).

         It is 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).

         B. The Use of Force on Ms. Helm

         The 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 “crowd ...