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Underwood v. The City of Bessemer

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

September 12, 2019

THE CITY OF BESSEMER, et al., Defendants.

          MEMORANDUM OPINION [1], [2]


         Plaintiff 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 & 65).[3] For the reasons stated below, Defendants' motion for summary judgment is GRANTED, and Underwood's motion for summary judgment is DENIED.[4]

         I. Standard of Review

         Under 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 (1986).

         The 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).

         II. Evidentiary Objections

         Both 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 Cir. 2013).

         A. Lawdon H. Yates

         Defendants 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).

         Defendants 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.

         B. Christopher Lawrence

         Underwood 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.

         III. Summary Judgment Facts[5]


         On June 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:[6] Yes, there's been a domestic on Holbrook and -- between Holbrook and 17th and 16th Street, gunshots have been fired. They're arguing and -
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 see.
FEMALE DISPATCHER: And you - you hear the domestic going on?
SPEAKER 1: Right. We hear yelling, yelling and then two gunshots.
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 more shots.
SPEAKER 1: It sounds like a female and a male.

(Doc. 37-1 at Track 1;[7] doc. 37-2 at 2).

         Bessemer 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.[8] 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)).

         Officers Asarisi and Partridge were both working the “C” shift - between 10:00 p.m. and 6:00 a.m. - that night.[9] (Doc. 37-5 at 10 (34:2-9); doc. 37-6 at 4 (11:23-12:7)).[10] 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)).

         The 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)).

         About 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)).

         As 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)).

         As 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 22 (83:17-21)).

         Meanwhile, 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)).

         Underwood 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.[11] (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)).

         Officer 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)).[12]

         Officer 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).[13] 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).[14] 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 4).[15]

         Underwood's vehicle struck Officer Partridge, but did not injure him.[16] (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.[17] (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 (62:6-14)).

         With five bullet wounds, Underwood continued to drive, ultimately crashing his vehicle into a neighbor's home a short distance away.[18] (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)).

         On 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, 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.[19] 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 doc. 22.

         Subsequent Investigation

         Chief 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 ...

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