737 F.2d 894 (11th Cir. 1984), 82-8457, Gilmere v. City of Atlanta, Ga.

Docket Nº:82-8457, 82-8760.
Citation:737 F.2d 894
Party Name:Emma F. GILMERE, individually and as Administratrix of the Estate of Thomas E. Patillo and for the benefit of his next of kin, Plaintiff-Appellee, Cross- Appellant, v. CITY OF ATLANTA, GEORGIA, et al., Defendants-Appellants, Cross-Appellees. Emma F. GILMERE, Plaintiff-Appellee, Cross-Appellant, v. CITY OF ATLANTA, et al., Defendants-Appellants, Cro
Case Date:July 09, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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737 F.2d 894 (11th Cir. 1984)

Emma F. GILMERE, individually and as Administratrix of the

Estate of Thomas E. Patillo and for the benefit of

his next of kin, Plaintiff-Appellee,

Cross- Appellant,


CITY OF ATLANTA, GEORGIA, et al., Defendants-Appellants,


Emma F. GILMERE, Plaintiff-Appellee, Cross-Appellant,


CITY OF ATLANTA, et al., Defendants-Appellants, Cross-Appellees.

Nos. 82-8457, 82-8760.

United States Court of Appeals, Eleventh Circuit

July 9, 1984

Opinion on Granting Rehearing En Banc Oct. 1, 1984.

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Marva Jones Brooks, Mary Carole Cooney, Laurice Mayes Pope, George R. Ference, Atlanta, Ga., for City of Atlanta & R.C. Sampson.

J.M. Raffauf, Decatur, Ga., for Gilmere.

Appeals from the United States District Court for the Northern District of Georgia.

Before TJOFLAT and HILL, Circuit Judges, and LYNNE [*], District Judge.

TJOFLAT, Circuit Judge:

This is a survival action 1 brought by the administratrix of the estate of a man injured, and killed, in a police-citizen encounter. We determine the sufficiency of the plaintiff's damages claims under 42 U.S.C. Sec. 1983 (1982), 2 and state tort law, against the City of Atlanta, three officials of the City's Police Department, and two uniformed police officers under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); and Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). We conclude on the basis of the district court's findings of fact and conclusions of law that the plaintiff failed to establish a 42 U.S.C. Sec. 1983 (1982) claim against any of these defendants. We also conclude that plaintiff failed to establish state law claims of false arrest or false imprisonment against any defendant. The district court's findings and conclusions on plaintiff's state law claim against the individual defendants for assault and battery are inadequate to permit us to render a decision as to their sufficiency; consequently, we remand that claim for further proceedings.


The plaintiff's claims in this case grew out of a New Year's Day celebration. We recite the salient facts as the district court found them.

Thomas Patillo, the plaintiff's decedent, spent the afternoon of January 1, 1980, driving about Atlanta with a male companion, visiting friends and drinking quite heavily. 3 He came home around 5:00 p.m.

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and pulled into a service station across the street from his house to buy some gas. As he was driving out of the station he almost hit a red van also leaving the station. Patillo and the driver of the van got out of their vehicles and exchanged words. Patillo pulled a handgun from his trunk and threatened the driver. The driver, in turn, ran for a telephone and called the police. Atlanta Police Officers C.C. Craig and R.C. Sampson responded to the call. By this time, Patillo had gone home and parked his car in front of his house. The two officers, accompanied by the driver of the van, walked to Patillo's front porch and knocked on the door. A friend of Patillo's answered the door, and Officer Sampson asked for the driver of the car parked out front. Patillo then came to the door, and the driver of the red van said, "That's him, he's the one." 4 Patillo's friends began to gather about, and the officers decided to question Patillo away from his house.

Officer Sampson grabbed Patillo 5 to steady him as they walked down the porch steps; Patillo was quite drunk. 6 Upon reaching the sidewalk Patillo bolted. Sampson caught him and held him by the back of the belt while Officer Craig grabbed his arm. They decided to take him to their patrol car which was parked in an adjacent parking lot. One of Patillo's friends followed the officers, shouting and excoriating them; they warned him to stand back, and he withdrew. Once again Patillo tried to escape, flailing his arms at the officers. In the struggle that ensued, the officers struck Patillo about the head a number of times with their hands. 7

The officers eventually got Patillo to their patrol car. It was parked parallel to a Chevrolet Camaro; the fronts of both cars were against a building. When Officers Craig and Sampson and Patillo entered the space between these two cars Patillo broke away and grabbed Craig's holstered revolver. The revolver became dislodged and fell to the ground. Patillo lunged at Sampson, who, fearing that Patillo had the gun, reacted by pulling his revolver and firing two shots into Patillo's abdomen. Patillo collapsed and was declared dead thirty minutes later.

The shooting and the circumstances surrounding it were reviewed by the Internal Affairs Division and the Firearms Review Board of the Atlanta Police Department. Neither found any misconduct on the part of the officers. The Fulton County Grand Jury and the Federal Bureau of Investigation also reviewed the incident and recommended that no action be taken.

Plaintiff, as administratrix of Patillo's estate, then filed this suit against the City of Atlanta, its Mayor, Public Safety Director, and Chief of Police, and Officers Craig and Sampson. She sought to recover against these defendants, jointly and severally, the money damages her decedent, Patillo, allegedly would have been entitled to recover had he survived. 8 Her complaint

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set forth, in separate counts, four discrete causes of action. Count one, the claim that gave the district court subject matter jurisdiction of the case, was brought under 42 U.S.C. Sec. 1983 (1982); plaintiff alleged that the defendants, acting under color of state law, had deprived Patillo of his life 9 and liberty without due process of law, in violation of the fourteenth amendment, and had subjected him to an unreasonable seizure and cruel and unusual punishment, in violation of the fourth, eighth and fourteenth amendments. 10 The City allegedly deprived Patillo of these rights by promulgating a policy that permitted the deployment of untrained police officers and the use of excessive force in police-citizen encounters; the Mayor, Public Safety Director and Chief of Police (the supervisors) were allegedly liable because they implemented this policy in a general way. Officers Craig and Sampson deprived Patillo of his rights by beating and shooting him.

Counts two, three, and four presented pendent state law claims. 11 Count two sought money damages for assault and battery; count three for false imprisonment; count four for false arrest.

The defendants filed a joint answer to plaintiff's complaint. They denied the material allegations of the complaint and alleged, as affirmative defenses, that no count of the complaint stated a claim for relief and that they had at all times maintained a reasonable good faith belief in the legality of their actions.

The case was tried to the court. At the close of the plaintiff's case, the defendants moved for dismissal pursuant to Fed.R.Civ.P. 41(b). The court declined to render judgment until the close of all the evidence and therefore denied their motion. At the conclusion of the trial, the court asked the parties to brief the question of whether Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), barred plaintiff's count one section 1983 claim against any of the defendants. The parties submitted their briefs, but, inexplicably, the court did not deal with the Parratt question

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in its dispositive findings of fact and conclusions of law.

In its dispositive order, the district court dealt with count one first. The court denied as meritless plaintiff's fourth and eighth amendment claims. 12 It upheld, however, plaintiff's section 1983 fourteenth amendment due process claim, concluding that the City and Officers Craig and Sampson had deprived Patillo of a protected liberty interest, 13 the right to be free from the infliction of unnecessary physical force against one's person in a police-citizen encounter. The court held that one or more of these three defendants had deprived Patillo of this interest on two occasions: when he was struck about the head and when he was shot. The court concluded that Officers Craig and Sampson were the wrongdoers on the first occasion and held them liable for $1,000 in compensatory damages and $4,000 in punitive damages. The court held Sampson and the City liable for the shooting--Sampson because he performed the act, the City because it had trained him in a grossly negligent manner--and assessed $20,000 in compensatory damages against them. The court refused to assess punitive damages against either of these defendants because Sampson had acted in good faith, subjectively believing that Patillo had Craig's revolver in hand, and the City was immune from punitive damage liability under City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). The court found no liability upon the part of the supervisors for violating any of Patillo's federal constitutional rights because plaintiff failed to prove an "affirmative link" between the supervisors' conduct and the constitutional injury, as required by Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976).

The district court disposed of plaintiff's state law claims summarily. The court denied her assault and battery claim on the theory that that claim was identical to, and duplicative of, her count one section 1983 due process claim. The court denied plaintiff's false imprisonment (count three) and false arrest (count four) claims because the officers had probable cause to arrest and detain Patillo. In a supplemental proceeding, the court awarded plaintiff $28,464.00 in attorney's fees pursuant to 42 U.S.C. Sec. 1988 (1982). 14

The City and the officers appeal, contending that...

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