Bessinger v. Mulvaney

• Decision Date: 22 August 2016
• Docket Number: Civil Action No. 7:14-CV-116 (HL)
• Parties: CHRISTOPHER MATTHEW BESSINGER, Plaintiff, v. INVESTIGATOR JOHN MULVANEY, JR.; SERGEANT TERESA FISHER; CORPORAL BRANDON TINSLEY; and the CITY OF REMERTON, GEORGIA, Defendants.
• Court: U.S. District Court — Middle District of Georgia

CHRISTOPHER MATTHEW BESSINGER, Plaintiff, v. INVESTIGATOR JOHN MULVANEY, JR.; SERGEANT TERESA FISHER;CORPORAL BRANDON TINSLEY; and the CITY OF REMERTON, GEORGIA, Defendants.

Civil Action No. 7:14-CV-116 (HL)

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA VALDOSTA DIVISION

August 22, 2016

ORDER

Before the Court is Defendants' Motion for Summary Judgment. (Doc. 28). After reviewing the pleadings, briefs, affidavits, and other evidentiary materials presented, the Court GRANTS summary judgment on Plaintiff's claims asserted against Defendants Teresa Fisher, Brandon Tinsley, and the City of Remerton. The Court GRANTS IN PART and DENIES IN PART Defendants' motion as it relates to Plaintiff's claims against Defendant John Mulvaney, Jr.

I. FACTUAL BACKGROUND

Events Preceding Police Encounter

The parties do not materially dispute the initial sequence of events. July 22, 2012 began uneventfully for Plaintiff Christopher Matthew Bessinger ("Bessinger"). Bessinger, who at that time was enlisted in the United States Air Force and stationed at Moody Air Force Base in Valdosta, Georgia, had recently undergone surgery to repair a work-related injury to his left shoulder. (Doc. 23, p. 17, 21-22, 70; Doc. 37-1, ¶¶ 3, 6). He spent the majority of the afternoon in his apartment with his wife Nastassia Cueto Bessinger ("Nastassia") and his friend Cody Nunn ("Nunn") playing video games. (Doc. 23, p. 105; Doc. 37-1, ¶ 4). Between approximately 3:30 or 4:00 p.m. and 9:00 p.m., Bessinger consumed three to five Bud Light beers. (Doc. 23, p. 106; Doc. 24, p. 15).

Sometime between 9:00 and 10:00 p.m., Bessinger, along with Nastassia and Nunn, left the apartment to go to Buffalo Wild Wings. (Doc. 23, p. 107; Doc. 24, p. 17). Bessinger consumed one, maybe two, two Bud Lights. (Doc. 23, p. 109; Doc. 24, p. 18). The group remained at the restaurant for approximately one hour before departing for Milltown, a bar located in the City of Remerton.¹ (Doc. 23, p. 107; Doc. 24, p. 19). Upon arriving at Milltown, the bar was crowded, so Bessinger, Nastassia, and Nunn made the decision to go to the back porch. (Doc. 23, p. 116; Doc. 24, p. 21). While Nunn stood in line at the outside bar to purchase beers for himself and Bessinger, Bessinger excused himself to go to the restroom. (Doc. 23, p. 117).

When Bessinger returned to the porch, Nastassia was not present. (Doc. 23, p. 117). Bessinger asked Nunn where his wife had gone. (Doc. 23, p. 117).Nunn informed him that Nastassia went to retrieve her cigarettes from the car. (Doc. 23, p. 117; Doc. 24, p. 24). Bessinger attempted to call Nastassia to check on her, but the volume level of the surrounding environment made it difficult to communicate, so Bessinger decided to walk out to the parking lot to check on his wife. (Doc. 23, pp. 117-18). Bessinger walked out of the bar and headed toward the parking lot holding his open container of beer. (Doc. 23, p. 119, 121, 124-25; Doc. 37-1, ¶ 5). Any agreement between the parties relating to the facts in this case ends at this point.²

Bessinger's Version of Events

According to Bessinger, as he approached the parking lot, he made eye contact with Corporal Brandon Tinsley ("Tinsley") of the City of Remerton Police Department. (Doc. 23, p. 121-22, 124). Tinsley and Investigator John Mulvaney, Jr. ("Mulvaney")³ called to Plaintiff to come over to them. (Doc. 23, p. 122); Doc.37-1, ¶ 5). Tinsley informed Bessinger that he was in violation of the City of Remerton's open container ordinance and began writing Bessinger a ticket for the infraction. (Doc. 23, p. 122). Bessinger explained that he was not aware that it was illegal to have an open container of alcohol and apologized to the officers. (Doc. 23, p. 122; Doc. 37-1, ¶ 5). When Bessinger asked if he could return to the bar to dispose of the beer, Tinsley told him no and continued writing out a citation. (Doc. 23, p. 129-30). Bessinger then proceeded to pour out the beer and set the container on the ground by his and the officers' feet. (Doc. 23, p. 122, 130; Doc. 37-1, ¶ 5).

When asked for his identification, Bessinger produced both his South Carolina driver's license and his military identification. (Doc. 37-1, ¶ 5). Upon learning that Bessinger was in the military, Mulvaney purportedly remarked, "You guys think you can get away with everything just because you're military." (Doc. 23, p. 123; Doc. 37-1, ¶ 5). While Bessinger maintained a generally cordial rapport with Tinsley, tension with Mulvaney began to rise. (Doc. 23, p. 128). Bessinger was unable to provide his Valdosta address to the officers. (Doc. 23, p. 123). He and his wife had recently married and moved to a new apartment complex, and Bessinger could not recollect his new address. (Doc. 23, p. 123). He requested permission to reach into his pocket to retrieve his address or to consult with his wife, but the officers denied him permission to do so. (Doc. 23, p.123, 136). Bessinger denies refusing to answer any of the officers' questions. (Doc. 23, p. 137).

While Tinsley continued to gather Bessinger's personal information for the citation, Bessinger claims that Mulvaney became increasingly aggressive toward him. (Doc. 23, p. 123). At some point, Mulvaney asked Bessinger "what the fuck [he] was looking at." (Doc. 23, p. 123; Doc. 37-1, ¶ 6). Then, without provocation, Mulvaney said, "I'm going to fuck you up," (Doc. 30, Compact Disc of In-Camera Video from Patrol Car at 1:54), and charged at Bessinger, striking him in the face. (Doc. 23, p. 124, 144, 147, 158; Doc. 37-1, ¶ 7). Bessinger states that Mulvaney "grabbed me by the back of my polo shirt and he pulled me closer and then he fell backwards. And he continued to hit me in my sides, on my back, the back of my sides. And I had bruises there. And that's when I got handcuffed." (Doc. 23, p. 124, 148; Doc. 37-1, ¶ 7).

Bessinger admits that after Mulvaney cursed at him, he "was a little pissed off" himself. (Doc. 23, p. 137). However, Bessinger denies cursing at either Tinsley or Mulvaney or clinching his fists or assuming any sort of threatening posture. (Doc. 23, p. 138, 141-42; Doc. 37-1, ¶ 6). He further denies making any type of aggressive movement toward Mulvaney. (Doc. 23, p. 142; Doc. 37-1, ¶ 9). His hands and arms remained close to his body. (Doc. 23, p. 142-43). Bessinger explains "that [it] would be kind of pointless for me to even try to get in a fight witha cop knowing that I'm injured, you know. It doesn't make sense." (Doc. 23, p. 143; Doc. 37-1, ¶ 6).

Bessinger states that he was dazed by the initial blow to the face. (Doc. 23, p. 148). He never resisted and never fought back. (Doc. 23, p. 148, 150; Doc. 37-1, ¶ 9). When Bessinger attempted to get up, he asked Mulvaney, "Why did you do that? Why did you do that? Why did you do that? You hit me for no reason." (Doc. 23, p. 148-49, 151-52). But Mulvaney continued holding and punching him; he would not release Bessinger. (Doc. 23, p. 150). Eventually, Mulvaney got on top of Bessinger, handcuffed him behind his back, and placed him under arrest. (Doc. 23, p. 150-51, 152). At that point, Bessinger said something to the officers about having recently undergone shoulder surgery. (Doc. 23, p. 168). He requested that Mulvaney stop jerking his shoulders, but Mulvaney persisted, pulling Bessinger up by his shoulders while handcuffed. (Doc. 37-1, ¶ 8). Despite Bessinger's complaint about pain in his shoulders, none of the officers examined his injuries or offered him medical care. (Doc. 37-1, ¶¶ 8, 11). Bessinger admits that he did not notice the presence of Sergeant Teresa Fisher⁴ until after his altercation with Mulvaney. (Doc. 23, p. 131).

After his arrest, Bessinger was placed in the car of another Lowndes County Sheriff's deputy who was called to the scene. (Doc. 23, p. 162). This unnamed officer transported Bessinger to the Lowndes County jail. (Doc. 23, p. 162). Upon arriving at the jail, Bessinger informed officials that his face was hurt and his shoulder injured. (Doc. 23, p. 167). He denies receiving any medical care other than ice during the three days he spent in jail. (Doc. 37-1, ¶¶ 11, 12). Bessinger ultimately underwent surgery to repair damage to both of his shoulders, which he contends was the direct result of Mulvaney's physical assault. (Doc. 37-1, ¶ 8).

Defendants' Version of Events

The three officers relay a different account of the events that transpired on July 22, 2012. The officers claim that Mulvaney and Fisher, not Tinsley, made first contact with Bessinger. (Doc. 21, p. 13, 15; Doc. 22, p. 22; Doc. 26, p. 33; Doc. 27-1, ¶ 5; Doc. 27-2, ¶ 6; Doc. 27-4, ¶ 7). While on foot patrol in the Remerton Square parking lot, Mulvaney and Fisher encountered Bessinger, who was holding an open container of beer. (Doc. 22, p. 22; Doc. 26, p. 33; Doc. 27-4, ¶ 7). Mulvaney advised Bessinger of the open container violation and asked that Bessinger dispose of the beverage. (Doc. 22, p. 22). Bessinger poured out the beer and placed the container by Mulvaney's foot. (Doc. 22, p. 22). WhenMulvaney informed Bessinger that he now was littering, Bessinger "started getting smart-mouthed, smart alecky." (Doc. 22, p. 22).

Mulvaney requested Bessinger's driver's license, at which time Bessinger produced his military identification rather than his license. (Doc. 22, p. 23). According to Mulvaney, Bessinger was visibly intoxicated and was being evasive. (Doc. 22, p. 24). Around this time, Tinsley arrived. (Doc. 22, p. 23). Tinsley, who was patrolling the area in his police vehicle, previously noticed Bessinger crossing the street with an open container of beer. (Doc. 21, p. 13-14). Tinsley observed Bessinger, Mulvaney, and Fisher standing in the parking lot with an open beer bottle sitting on the ground. (Doc. 21, p. 16). Tinsley then began the process of issuing Bessinger a citation for violating the City of Remerton's open container ordinance. (Doc. 21, p. 16; Doc. 22, p. 23). Bessinger was reluctant to answer Tinsley's questions...