United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION , 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE.
Marcus Underwood (“Underwood” or
“Plaintiff”) brings this action pursuant to 42
U.S.C. § 1983 against Defendants the City of Bessemer
(“Bessemer”); Bessemer Chief of Police Nathaniel
Rutledge (“Chief Rutledge”), in both his
individual and official capacity; Bessemer Police Department
Officer Daniel Cecil Partridge (“Officer
Partridge”), in both his individual and official
capacity; and Bessemer Police Officer Christopher Asarisi
(“Officer Asarisi”), in both his individual and
official capacity (collectively, the
“Defendants”). Defendants have moved for summary
judgment on all of Underwood's claims, (doc. 43), and
Underwood has moved for partial summary judgment, (doc. 45).
Additionally, the parties have each moved to exclude
evidence, (docs. 31 & 39), and Defendants have moved to
strike the evidence submitted by Underwood that is the
subject of their evidentiary motion, (doc. 51). Finally,
Defendants have moved for sanctions against Underwood. (Doc.
50). Each of those motions is fully briefed and ripe for
review. (Docs. 36, 42, 53-1, 54, 55, 56, 57, 58, 59, 64 &
For the reasons stated below, Defendants' motion for
summary judgment is GRANTED, and
Underwood's motion for summary judgment is
Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” “Rule
56(c) mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 447 U.S. 317, 322 (1986).
The moving party bears the initial burden of proving the
absence of a genuine issue of material fact. Id. at
323. The burden then shifts to the nonmoving party, who is
required to “go beyond the pleadings” to
establish that there is a “genuine issue for
trial.” Id. at 324. (citation and internal
quotation marks omitted). A dispute about a material fact is
genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
Court must construe the evidence and all reasonable
inferences arising from it in the light most favorable to the
non-moving party. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970); see also Anderson, 477
U.S. at 255 (all justifiable inferences must be drawn in the
non-moving party's favor). Any factual disputes will be
resolved in Plaintiffs favor when sufficient competent
evidence supports Plaintiffs version of the disputed facts.
See Pace v. Capobianco, 283 F.3d 1275, 1276-78 (11th
Cir. 2002) (a court is not required to resolve disputes in
the non-moving party's favor when that party's
version of the events is supported by insufficient evidence).
However, “mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary
judgment motion.” Ellis v. England, 432 F.3d
1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald
Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th
Cir. 1989)). Moreover, “[a] mere ‘scintilla'
of evidence supporting the opposing party's position will
not suffice; there must be enough of a showing that the jury
could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing
Anderson, 477 U.S. at 252).
parties have presented motions to strike summary judgment
evidence, as well as other challenges to opposing evidence.
(Docs. 31, 39 & 51). With the December 1, 2010 rules
change to Rule 56 of the Federal Rules of Civil Procedure,
motions to strike submitted on summary judgment are no longer
appropriate. Revised Rule 56(c)(2) provides that “[a]
party may object that the material cited to support or
dispute a fact cannot be presented in a form that would be
admissible in evidence.” The Advisory Committee Notes
specify as follows:
Subdivision (c)(2) provides that a party may object that
material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence. The
objection functions much as an objection at trial, adjusted
for the pretrial setting. The burden is on the proponent to
show that the material is admissible as presented or to
explain the admissible form that is anticipated. There is no
need to make a separate motion to strike. If the case goes to
trial, failure to challenge admissibility at the
summary-judgment stage does not forfeit the right to
challenge admissibility at trial.
Fed. R. Civ. P. 56, Adv. Comm. Notes, “Subdivision
(c)” (2010 Amendments). “Before this amendment,
parties properly challenged evidence used in a summary
judgment motion by filing a motion to strike. The plain
meaning of these provisions shows that objecting to the
admissibility of evidence supporting a summary judgment
motion is now a part of summary judgment procedure, rather
than a separate motion to be handled preliminarily.”
Campbell v. Shinseki, 546 Fed.Appx. 874, 879 (11th
Lawdon H. Yates
seek to exclude testimony or evidence from Underwood's
expert Lawdon H. Yates. (Doc. 31). Defendants state Underwood
failed to disclose Yates's report by the scheduling
order's deadline for disclosure of expert reports.
(Id.). Underwood argues Yates was not timely
disclosed because he did not intend to use Yates as a
testifying expert, but rather as a consulting expert, and in
any event Defendants have not been harmed by the late
disclosure because he “does not intend to use
Yates's report in support [of] or opposition to any
dispositive motions due to be filed” in this case.
(Doc. 36). Contrary to this representation, though,
Underwood's initially-submitted summary judgment brief
contains a paragraph relying on Yates's conclusions,
(doc. 46 at 11-12, ¶ 28), and his summary judgment
evidence contains Yates's expert report, (doc. 47-10).
have moved to strike the paragraph and the report. (Doc. 51).
Underwood concedes the motion is well-taken; therefore, he
has withdrawn the exhibit and submitted a corrected summary
judgment brief, omitting the paragraph that references Yates.
(Docs. 53 & 53-1). Consequently, Defendants' motion
to strike, (doc. 51), is DENIED AS MOOT. The
remainder of Defendants' evidentiary objections, as well
as Defendants' motion for sanctions, are not relevant to
the resolution of the motions for summary judgment, and the
undersigned declines to address them.
objects to the report of Defendants' use of force expert,
Christopher Lawrence, on the following grounds: (1)
Lawrence's report is founded on the version of events
relayed by Officers Asarisi and Partridge, rather than the
totality of the circumstances; (2) Lawrence is unqualified to
offer opinion evidence on general police procedures, given
Bessemer's official policy; (3) Lawrence's opinions
on the turning radius of the vehicle driven by Underwood at
the time of the incident at issue fail to account for
variables at the scene; (4) a study relied upon by Lawrence
for his opinion on police officers' reduced mobility in
full gear fails to account for variables at the scene; (5)
Lawrence's opinion on “looming” fails to
account for variables at the scene; (6) Lawrence's
opinions on officers' focus of attention does not account
for the reliability of the studies that Lawrence relies upon;
(7) Lawrence's opinions on stress response unreasonably
credits the accounts of Officers Asarisi and Partridge over
other witnesses; and (8) Lawrence's opinions on reaction
times have no bearing on the facts at issue in this case and
are based on a computer program whose reliability he fails to
discuss. (Doc. 39). Because none of the opinions Underwood
challenges are necessary to resolve the motions for summary
judgment, the undersigned declines to address the evidentiary
objection and will consider the motions for summary judgment
without reference to Lawrence's report.
Summary Judgment Facts
14, 2014, around midnight, Elizabeth “Lee”
Harrington (“Harrington”), a resident of Holbrook
Avenue in Bessemer, Alabama, was awakened from her sleep by
her partner, Dana Darby (“Darby”), who told her
she had heard people arguing loudly across the street and
“two pops.” (Doc. 37-3 at 4 (14:1-2), 6
(23:18-24:3)). Harrington called 911, and the following
exchange took place:
DISPATCHER: Bessemer 911, 2 state your emergency.
SPEAKER 1: Yes, there's been a domestic on
Holbrook and -- between Holbrook and 17th and 16th Street,
gunshots have been fired. They're arguing and -
FEMALE DISPATCHER: Anybody hurt?
SPEAKER 1: I don't know, I don't know. I don't
want to go outside and see, in other words. We're just
hearing arguments and just yelling and gunshots.
FEMALE DISPATCHER: Is it between a male and a female?
SPEAKER 1: I don't know, I'm not going outside to
FEMALE DISPATCHER: And you - you hear the domestic going on?
SPEAKER 1: Right. We hear yelling, yelling and then two
FEMALE DISPATCHER: Bessemer is coming. I made a call,
that's where the caller lives. You said 16th and 17th
Holbrook Avenue right?
SPEAKER 1: Right, in between, yeah. I can still hear the
yelling, okay, so.
FEMALE DISPATCHER: Is it male and female, or do you hear two
males or --
SPEAKER 1: I can't -- I can't tell.
FEMALE DISPATCHER: I'm going to stay on the phone with
you until they get there. Just let me know if you hear any
SPEAKER 1: It sounds like a female and a male.
(Doc. 37-1 at Track 1; doc. 37-2 at 2).
Police Department (“BPD”) dispatcher Bess Griffin
transmitted the following: “208, 208 respond to
Holbrook Avenue, 17th and 18th Holbrook Avenue -- correction,
17th and 16th. It's going to be a domestic, shots fired.
Domestic, shots fired, 10-33. It's going to be yelling and
involved two shots fired. Yelling involved, two shots fired,
unknown if anybody is down.” (Doc. 37-1 at 1-2, Track
2; doc. 37-2 at 5). After indicating units were responding to
the scene, the dispatcher also stated: “it sounds as if
it is between a female and a male, a female and a
male.” (Doc. 47-4 at 6 (2:1-3)).
Asarisi and Partridge were both working the “C”
shift - between 10:00 p.m. and 6:00 a.m. - that
night. (Doc. 37-5 at 10 (34:2-9); doc. 37-6 at 4
(11:23-12:7)). Both responded to the domestic violence
call. Both officers were driving BPD patrol vehicles, and
both were in uniform and wearing their duty belts (consisting
of a firearm, handcuffs, a baton, pepper spray, a radio, and
a flashlight). (Doc. 37-5 at 15 (56:4-12), 18 (67:24-68:7)).
On the way to the scene, each officer initially had his
lights and siren on, but each turned off his lights and siren
as he approached the scene; Officer Asarisi testified he did
so because he wanted to avoid broadcasting his presence due
to the report of shots fired, while Officer Partridge stated
he “didn't want [a suspect] to take off running and
try to leave the scene when they hear us coming.” (Doc.
37-5 at 18 (66:9-67:2); doc. 37-6 at 12 (44:10-23)).
portion of Holbrook Avenue where the incident occurred is a
two-lane residential street, with houses on both sides and a
grassy median separating the northbound lane from the
southbound lane. (See doc. 47-5). Arriving on the
scene, Officer Asarisi parked “just into the median,
” and Officer Partridge, who arrived shortly
afterwards, parked on the street roughly ten or fifteen feet
behind Officer Asarisi's vehicle. (Doc. 37-5 at 19
(71:22-72:25), 23 (87:7-12); doc. 37-6 at 13 (6-23)).
fifteen or twenty feet in front of Officer Asarisi's
vehicle, parked in the street, was a Nissan Maxima with its
engine running and its headlights on. (Doc. 37-5 at 20
(74:13-20); doc. 37-6 at 13 (47:20-23)). Two black males -
Underwood and Ray Merquell James (“James”), (doc.
19 at ¶ 15) - were behind the Nissan, talking loudly in
what Officer Asarisi testified sounded like an argument.
(Doc. 37-5 at 20 (74:13-75:7)). Officer Asarisi could see
both men from the waist up, but did not notice whether either
had a weapon in his hand. (Doc. 37-5 at 20 (75:22-76:2)).
Officer Partridge was also unable to judge whether the men
had anything in their hands. (Doc. 37-6 at 13 (49:14-17)).
Officer Asarisi exited his patrol vehicle, Underwood began
walking towards the Nissan. (Doc. 37-5 at 20 (76:9-77:24)).
As he made his way to the Nissan, Underwood saw Officer
Asarisi and his patrol vehicle and told Officer Asarisi that
James was “clowning.” (Doc. 37-5 at 20
(76:9-15)). After he exited his own vehicle, Officer
Partridge observed James, who was between two houses on
Holbrook, walk from one house towards the other. (Doc. 37-6
at 13 (49:3-13)). Officer Asariri did not perceive either
man's actions as threatening towards him, but rather as
an indication that “they both did not want to be there
around [Officer Asarisi] and were making an attempt to get
away from [him].” (Doc. 37-5 at 20 (76:25-77:6)). To
avoid “rush[ing] into a situation where someone
possibly has a gun, ” the officers were hanging back at
their vehicles. (Doc. 37-5 at 28 (106:2-6)).
Underwood walked to the Nissan's driver's side door,
Officer Asarisi instructed Underwood not to get into the car.
(Doc. 37-5 at 20 (77:13-24)). Underwood, continuing to insist
James was “clowning, ” got into the car. (Doc.
37-5 at 20 (77:21-24)). Officer Asarisi testified there was
nothing illegal about the running car at this time beyond
that it was parked in the middle of the street. (Doc. 37-5 at
seconds onto the scene, Officer Partridge's attention was
on James, and he was walking across the street to get him.
(Doc. 37-5 at 27 (106:6-22); doc. 37-6 at 13-14 (49:19-21,
50:24-51:1)). Officer Partridge shined his flashlight on
James and began to cross the street, yelling to Officer
Asarisi to “watch it” (in reference to James).
(Doc. 37-6 at 13-14 (49:19-51:1)). Officer Partridge did not
recall whether he had made it fully across the street as he
did so. (Doc. 37-6 at 14 (50:23)).
put the Nissan in drive and took his foot off the brake,
causing the car to begin rolling forward under its own power,
but not accelerating, towards Officer Asarisi, who was
standing beside his patrol vehicle. (Doc. 37-5 at 23
(89:1-8), 24 (91:1-3), 26 (100:25-101:10)). Initially,
Officer Asarisi did not find this to be threatening; instead,
it appeared as though Underwood was attempting to flee the
scene. (Doc. 37-5 at 23 (89:9-23)). As the Nissan approached
Officer Asarisi, he screamed at Underwood to “stop the
fucking car, ” and slapped the front of the vehicle.
(Doc. 37-5 at 23-24 (89:24-90:16), 27 (103:14-17)).
Harrington heard Officer Asarisi yell “stop” from
across the street. (Doc. 19 at ¶ 18; doc. 37-3 at 15
(58:19-59:7)). As Underwood passed Officer Asarisi, Officer
Asarisi pressed his body against his patrol vehicle; although
the Nissan came close to him, it did not hit or injure
him. (Doc. 37-5 at 24 (91:5-14)). Underwood
did not accelerate the vehicle towards Officer Asarisi during
this process. (Doc. 37-5 at 25 (97:8-16)).
Partridge also yelled at Underwood to stop his vehicle. (Doc.
37-5 at 28 (107:10-108:2); doc. 37-6 at 14 (56:9-10)).
Underwood did not stop. (Doc. 37-3 at 15 (60:9-10); doc. 37-6
at 15-16 (56:14-58:11)). Instead, Officer Partridge testified
that Underwood slowed his vehicle down to the point that it
appeared to Officer Partridge that he was going to stop, but
never actually stopped moving. (Doc. 19 at ¶ 18; doc.
37-2 at 13; doc. 37-3 at 15 (60:9-10); doc. 37-6 at 15
(56:14-17)). When Officer Partridge realized Underwood's
car was moving towards him, he drew his service weapon. (Doc.
37-6 at 15 (55:22-24); doc. 19 at ¶ 19; doc. 44-1 at
3-4)). Officer Partridge testified he did so because the
vehicle was still moving towards him, and it was a deadly
weapon. (Doc. 37-6 at 15 (59:24-60: 6)). The Nissan was about
eight feet away from Officer Partridge when Underwood slowed
down to the point Officer Partridge believed Underwood was
going to stop; Officer Partridge was in front of the car but
walking back across the road towards the Nissan's
driver's side. (Doc. 37-6 at 15 (56:14-25), 16
(60:7-18)). From his vantage point close to the back
driver's side window of the Nissan, Officer Asarisi could
see Officer Partridge in the middle of the street, directly
in front of the vehicle, when he pointed his weapon at
Underwood. (Doc. 37-5 at 27-28 (105:13-107:7)).
Partridge stated in a post-incident interview that after he
heard Officer Asarisi tell Underwood to stop:
[t]he car was rolling towards me. I stopped, grabbed my
attention to the car. The guy slows down almost to a stop. I
holstered my flashlight and pulled my service weapon and
pointed my light on it at - my light's directly in his
face, he looks directly at me and hits the gas, as I was then
telling him to stop.
(Doc. 47-7 at 3 (3:13-18)). As Underwood accelerated, in
Officer Partridge's account, he was coming straight
towards Officer Partridge. (Doc. 44-1 at 4). Neither Officer
Partridge nor Officer Asarisi could judge the speed of the
Nissan beyond Officer Asarisi's assertion it was
“accelerating quickly.” (Doc. 37-5 at 26
(100:9-16); doc. 37-6 at 16 (58:4-5)). Contrary to both
officers' account, Harrington testified that the Nissan
was moving at the same speed the entire time. (Doc. 37-3 at
17 (65:11-66:8). In his affidavit in support of
Defendants' motion for summary judgment, Officer
Partridge stated he was concerned Underwood may have had a
gun, concerns that grew stronger after Underwood failed to
stop the car in response to the officers' instructions.
(Doc. 44-1 at 3). Officer Partridge testified Underwood
driving towards him made him believe that Underwood was using
deadly force against him; in other words, “trying to
kill” him. (Doc. 37-6 at 24 (92:20-93:23); Doc. 44-1
at). In response to the oncoming vehicle,
Officer Partridge testified he began “firing into the
vehicle because it was a deadly weapon coming at
[him].” (Doc. 37-6 at 17 (63:20-24); doc. 44-1 at
vehicle struck Officer Partridge, but did not injure
him. (Doc. 37-6 at 16 (60:22-61:8)). Officer
Partridge continued to fire at the car as it drove past,
firing a total of nine shots. (Doc. 37-6 at 16-17
(61:18-62:3)). At about the time the vehicle struck Officer
Partridge, Officer Asarisi began firing his
weapon. (Doc. 37-5 at 28 (111:12-22)). Officer
Asarisi fired approximately eleven rounds. (Doc. 37-5 at 29
(111:23-112:4), 32124:14-18)). The officers continued firing
over a matter of about five seconds. (Doc. 37-1 Track 1 at
00:03:20-00:03:25). Around the time of the shooting, an
unidentified 911 caller reported that “the police were
telling him to stop and the guy in the car wouldn't stop
and that's when . . . bang, bang, bang, bang, bang . . .
the police were shooting at him.” (Doc. 37-2 at 13).
Once Officer Partridge “realized Underwood was no
longer a threat and continuing to flee, [he] holstered [his]
weapon and ran to [his] patrol car.” (Doc. 37-6 at 17
five bullet wounds, Underwood continued to drive, ultimately
crashing his vehicle into a neighbor's home a short
distance away. (Doc. 19 at ¶ 21). Underwood then
exited his vehicle, seeking assistance at another
neighbor's house. (Doc. 19 at ¶ 23). Officer
Partridge and approximately six other officers discovered him
there, secured him, and transferred him to the UAB Hospital.
(Doc. 19 at ¶ 28; doc. 37-6 at 20 (74:23-25)).
January 30, 2015, Underwood was indicted by a Jefferson
County grand jury on charges of attempted murder and
attempting to flee or elude a law enforcement officer.
See https://v2.alacourt.com, State of Alabama v.
Marcus Keonnie Underwood, No. 68-CC-2015-000377.00
(“Underwood I”) at doc. 1; State of
Alabama v. Marcus Keonnie Underwood, No.
68-CC-2015-00378.00 (“Underwood II”) at
doc. 1. On March 4, 2016, the district attorney
moved to dismiss the charges without prejudice due to the
unavailability of a witness and to amend the indictment to
include additional facts. (Doc. 37-13); Underwood I
at doc. 25; Underwood II at doc. 20. The state court
granted those motions on April 5, 2016 and April 8, 2016.
See Underwood I at doc. 29; Underwood II at
Rutledge testified that, per BPD policy, an internal affairs
investigation of a citizen complaint or officer-involved
shooting is conducted through interviews of all the people
identified in the complaint and taking statements of all
relevant witnesses. (Id. at 9 (25:19-26:17)). Once
all interviews are completed, internal affairs offers
conclusions as to what occurred and renders one of four
possible decisions as to the outcome: exonerated, sustained,
not sustained, or unfounded. (Id. (26:18-22); doc.
47-15 at 18 (90:2-11)). Chief Rutledge testified he did not