O'NEAL v. DeKalb County, Ga.

• Citation: 667 F. Supp. 853
• Decision Date: 15 June 1987
• Docket Number: Civ. A. No. C85-4643A.
• Parties: George Washington O'NEAL, Jr.; Cynthia Diana O'Neal; Gale Elaine O'Neal a/k/a Gail Elaine O'Neal; and Sharod Montes O'Neal, Plaintiffs, v. DeKALB COUNTY, GEORGIA; F.D. Hand, Jr.; Robert T. Burgess, Sr.; Donald E. Farrar; R.E. Roseberry; S.W. Waits; Georgia Osteopathic Hospital, Inc. d/b/a Doctors Hospital, Defendants.
• Court: U.S. District Court — Northern District of Georgia

667 F. Supp. 853

George Washington O'NEAL, Jr.; Cynthia Diana O'Neal; Gale Elaine O'Neal a/k/a Gail Elaine O'Neal; and Sharod Montes O'Neal, Plaintiffs, v. DeKALB COUNTY, GEORGIA; F.D. Hand, Jr.; Robert T. Burgess, Sr.; Donald E. Farrar; R.E. Roseberry; S.W. Waits; Georgia Osteopathic Hospital, Inc. d/b/a Doctors Hospital, Defendants.

Civ. A. No. C85-4643A.

United States District Court, N.D. Georgia, Atlanta Division.

June 15, 1987.

James W. Howard, R. David Ware and Charles R. Floyd, Atlanta, Ga., for plaintiffs.

Judson Graves and Paul J. Quiner, Alston & Bird, Atlanta, Ga., Albert Sidney Johnson, Decatur, Ga., Wade H. Watson, III, Atlanta, Ga., for defendants.

ROBERT H. HALL, District Judge.

Plaintiffs bring this 42 U.S.C. § 1983 civil rights action seeking monetary damages. Federal jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1343. Plaintiffs also invoke this court's pendent jurisdiction to consider their state law claims for wrongful death and medical malpractice. The action is currently before the court on defendants' motions for summary judgment.

FACTS

The following facts are not disputed by the parties:

Plaintiffs are the sole surviving legitimate and lawful children of George Washington O'Neal, Sr. ("O'Neal" or "decedent") who was not married at the time of his death. Plaintiffs' Complaint ¶¶ 5, 6. At the time of the incident which gives rise to this action defendant Hand was the Director of Public Safety of Defendant DeKalb County, defendant Burgess was the Chief of Police of DeKalb County and defendant Farrar was the Assistant Chief of Police of DeKalb County in charge of the Uniformed Division. Id., ¶ 8; Affidavits of Donald E. Farrar, R.T. Burgess, Sr. and F.D. Hand, Jr. At all times material to this action, defendants Waits and Roseberry were police officers, employees of defendant DeKalb County, under the supervision and direction of defendants Hand, Burgess and Farrar. Complaint, ¶ 10. Defendant Georgia Osteopathic Hospital ("Doctors Hospital") is incorporated in the State of Georgia and, at the time material to this action, was treating the decedent who was registered as a patient at the Hospital. Id., ¶ 11.

On December 12, 1983 O'Neal was admitted to Doctors Hospital complaining of headaches and severe pain in the right arm and jaw and numbness in the index and third fingers. O'Neal had previously been hospitalized at Doctors Hospital from November 22, 1983 through December 6, 1983 when he was diagnosed as having, among other things, degenerative joint disease, hypertension and diabetes. See Defendant Hospital's Brief in Support of Motion for Summary Judgment, Exhibit "A". Until late in the evening of December 14, 1983, the Hospital staff noted that O'Neal appeared to sleep well and showed no signs of distress. See Id., "Nurses Progress Notes." Early in the morning of December 15, 1983, however, the nurses noted that O'Neal refused his medicine claiming it made him feel worse, complained of feeling short-winded, and appeared slightly confused. Id.

O'Neal was awake most of the night and in the morning his attending physician, Dr. Boecker, discontinued his medication and requested consultation by a Dr. Lara. Dr. Lara examined O'Neal on the afternoon of December 15, 1983 and found that, overall, O'Neal's confusional state was medication related and that he would do well over the next 48 hours after stopping all medicines. Id., "Neurological Consultation." At 4:00 p.m. that day, the nurses noted that O'Neal's color was good and he showed no distress. At 6:00 p.m., however, O'Neal again appeared confused and was up walking in the room. The nurses progress notes reflect that at 10:00 p.m., O'Neal was in bed resting quietly with his eyes closed. Id. "Nurses Progress Notes."

Shortly after 10:00 p.m. on the evening of December 15, 1983, O'Neal, after calling for a nurse on the speaker box, jumped up from the chair in which he was sitting, grabbed a pocket knife from a bedside table and chased the nurse out of the room. O'Neal then stabbed another nurse who was standing at the nurses station and subsequently stabbed five other people on the floor. See Deposition of Daryle Branch, pp. 87-88; Police Report, Plaintiffs' Exhibit 1, Exhibit "A" to Plaintiffs' Supplemental Response Memorandum; Complaint, ¶ 14. During the incident, the hospital phoned the DeKalb County Police requesting help.

The first officer to arrive at the scene was defendant Waits. The officer went to the second floor where he saw O'Neal standing holding the knife at approximately waist level. Waits could not tell what kind of knife it was but noted that the blade was approximately 4 inches long. Deposition of Steven W. Waits, pp. 14-15 ("Waits Depo."). Waits raised his service revolver to O'Neal and ordered him to drop the knife and lie on the floor. O'Neal motioned for Waits to approach him and waved the knife back and forth in front of his face. Id., p. 16. When Waits took a step toward O'Neal, the latter turned and ran down a corridor of the hospital. Id.

When Waits ran down the hallway in pursuit of O'Neal he observed "a lot of blood on the floor ... a piece of intral of some kind" and a person on the floor who appeared to have a bad wound in his stomach. Id., p. 54. After several minutes of pursuing O'Neal through the second floor corridors, Waits was backed-up by officer Roseberry who carried a shotgun. Upon his arrival, defendant Roseberry saw "blood all over the floor in just about the entire length of the hallway and what he believed to be intestines on the floor." Statement of R.E. Roseberry, Plaintiffs' Exhibit 2, Exhibit "B" to Plaintiffs' Supplemental Response Memorandum.

O'Neal was still running from Waits who continued to order O'Neal to stop and drop the knife. Finally, the two officers cornered O'Neal in an area of the floor where there appeared to be no bystanders. With their weapons raised, both officers repeatedly ordered O'Neal to drop the knife, surrender and lie on the floor. At one point O'Neal, who was turned toward Waits, began to lower the knife. Suddenly, however, he raised the knife, turned, and ran or walked quickly toward defendant Roseberry with the knife thrust in front of him. See Id.; Waits Depo., pp. 29-30. Both officers then fired their weapons at O'Neal. Although O'Neal was struck by both shots, he appeared to continue toward defendant Roseberry with the knife still raised. Roseberry then fired a second shot at O'Neal, whereupon O'Neal fell to the ground where he continued to wave the knife. Waits Depo., pp. 39-47.

Although defendant Waits called for help once O'Neal had fallen, O'Neal died as a result of the gunshot wounds. Plaintiffs do not dispute the facts surrounding the incident. The only fact they contend is in dispute is whether O'Neal, after being shot by both Waits and Roseberry, continued lunging toward Roseberry or whether he was actually falling in Roseberry's general direction. Plaintiffs, however, do not dispute that O'Neal had stabbed several people prior to the police arriving, that the police pursued O'Neal ordering him to halt and drop the knife or that O'Neal turned and moved quickly toward Roseberry with the knife raised at waist or head level.

In Count I of their complaint, plaintiffs contend that defendants Waits and Roseberry were in a position to disarm O'Neal with a minimum of violence and bodily harm and that, instead, the officers, acting pursuant to DeKalb County policy and in accord with the training and supervision of the other defendants, used unreasonable and excessive force, depriving O'Neal of his life in violation of the Constitution. In Count II, plaintiffs claim that defendants Waits and Roseberry used excessive force against decedent thereby causing his wrongful death in violation of state law. In Counts III and IV, plaintiffs claim the defendant Hospital caused the decedent to become mentally irrational and failed to restrain him, causing his wrongful death and in violation of the Georgia medical malpractice statute, Ga. Off'l Code Ann. § 51-1-27 (1982). Defendants deny all liability and bring motions for summary judgment in their favor. Further facts will be disclosed as necessary for discussion of the motions.

DISCUSSION

I. Plaintiffs' Section 1983 Claim

Plaintiffs contend that defendants Waits and Roseberry used unreasonable and excessive force in attempting to apprehend and disarm O'Neal. They argue that DeKalb County and the supervisor defendants, Hand, Burgess and Farrar, are equally liable for defendants Waits' and Roseberry's conduct because the officers were acting in accordance with the customs, policies and practices of the county and the training and supervision of the supervisors.

42 U.S.C. § 1983 provides that:

Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law....

The use of excessive or unreasonable force under color of state law may give rise to a cause of action under § 1983. See e.g., Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); Fundiller v. City of Cooper City, 777 F.2d 1436 (11th Cir.1985); Gilmere v. City of Atlanta, 774 F.2d 1495 (11th Cir.1985), cert. denied, ___ U.S. ___, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986); McQurter v. City of Atlanta, 572 F.Supp. 1401 (N.D.Ga.1983) (Forrester, J.), appeal dismissed, 724 F.2d 881 (1984). Section 1983, however, does not itself create substantive rights. Rather, the court must look to determine whether plaintiffs have been deprived of a right secured by the Constitution and laws. Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). Defendants cannot be liable under section 1983 merely for the common law tort of wrongful death. Defendants...