Borton v. Dothan

• Decision Date: 24 August 2010
• Docket Number: Case No. 1:08-CV-654-WKW [WO]
• Citation: 734 F.Supp.2d 1237
• Parties: Pamela BORTON, Plaintiff, v. The CITY OF DOTHAN, a municipality, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

734 F.Supp.2d 1237

Pamela BORTON, Plaintiff,

v.The CITY OF DOTHAN, a municipality, et al., Defendants.

Case No. 1:08-CV-654-WKW [WO].

United States District Court,

M.D. Alabama,

Southern Division.

Aug. 24, 2010.

Gary A. Hudgins, Gary A. Hudgins, Attorney at Law, Dothan, AL, for Plaintiff.

Derel Kevan Kelly, The City of Dothan, Dothan, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

W. KEITH WATKINS, District Judge.

I. INTRODUCTION

In this lawsuit, Plaintiff Pamela Borton claims that an officer with the Dothan Police Department unlawfully tased her three times while she was strapped to a gurney, after she had been transported involuntarily by an ambulance to a medical center for mental health treatment, and that another officer failed to prevent the tasing. She brings this action against Jeff Schulmerich and Jason Weed, individually and in their official capacities as officers employed by the Dothan Police Department; John R. Powell, in his official capacity as the chief of police; and the City of Dothan. Ms. Borton alleges 42 U.S.C. § 1983 claims against Defendants for alleged violations of her Fourth, Fifth and Eighth Amendment rights, as well as various state law claims. Her claims arise from both the actions of the individual officers and the policies and customs of the Dothan Police Department, which is run by the City of Dothan.

Before the court is Defendants' motion for summary judgment (Doc. # 66), which is accompanied by a memorandum and an evidentiary submission. (Docs. # 66, 67.) Ms. Borton filed a response in opposition and an evidentiary submission, to which Defendants replied. (Docs. # 73, 74.) After careful consideration of the arguments of counsel, the applicable law and the record as a whole, the court finds that the motion is due to be granted in part and denied in part.

II. JURISDICTION AND VENUE

The court properly exercises subject matter jurisdiction over this action, pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1343 (civil rights jurisdiction), and 28 U.S.C. § 1367 (supplemental jurisdiction). Personal jurisdiction and venue are adequately pleaded and not contested.

III. STANDARD OF REVIEW

"Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir.2007) ( per curiam ) (citation and internal quotation marks omitted); see Fed.R.Civ.P. 56(c) (Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."). The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant may meet this burden by presenting evidence indicating there is no dispute of material fact or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-24, 106 S.Ct. 2548.

If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish, with evidence beyond the pleadings, that a genuine issue materialto each of its claims for relief exists. Fed.R.Civ.P. 56(e)(2); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). What is material is determined by the substantive law applicable to the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Lofton v. Sec'y of the Dep't of Children & Family Servs., 358 F.3d 804, 809 (11th Cir.2004) ("Only factual disputes that are material under the substantive law governing the case will preclude entry of summary judgment."). Furthermore, "[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir.2003) ( per curiam ) (citation and internal quotation marks omitted).

A genuine issue of material fact exists when the nonmoving party produces evidence that would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F.3d at 1263; Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir.2001). However, if the evidence on which the nonmoving party relies "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 242, 106 S.Ct. 2505 (citations omitted). "A mere 'scintilla' of evidence supporting the [nonmovant's] position will not suffice; there must be enough of a showing that the [trier of fact] could reasonably find for that party," Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990), and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine issue of material fact and do not suffice to oppose a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n. 6 (11th Cir.1997) ( per curiam ) (A plaintiff's "conclusory assertions ... in the absence of supporting evidence, are insufficient to withstand summary judgment."). Hence, when a plaintiff fails to set forth specific facts supported by appropriate evidence sufficient to establish the existence of an element essential to his case and on which the plaintiff will bear the burden of proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 ("[F]ailure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.").

Thus, in cases where the evidence before the court is admissible on its face or can be reduced to admissible form and indicates there is no genuine issue of material fact, and where the party moving for summary judgment is entitled to it as a matter of law, summary judgment is proper. Celotex Corp., 477 U.S. at 323-24, 106 S.Ct. 2548 (summary judgment appropriate where pleadings, evidentiary materials and affidavits before the court show there is no genuine issue as to a requisite material fact).

IV. FACTS ¹

While the material facts surrounding the tasing are hotly contested, at this juncture,Plaintiff Pamela Borton's ("Borton") version of the events occurring on August 15, 2006, is credited.²

Ms. Borton suffers from bipolar disorder, and on August 15, 2006, she was at her home in Midland City, Alabama, in an unmedicated "manic state." ³ (Pl. Dep. 18, 19, 26-27.) When she is in a manic state, she loses touch with reality and has no sense of time; "hours run into days, days run into weeks." (Pl. Dep. 19, 20.) Ms. Borton feels like she can "conquer the world" and exhibits symptoms of grandiosity. (Pl. Dep. 19.) On this particular day, it is not clear exactly what type of behavior Ms. Borton was exhibiting. It is undisputed, however, that her behavior ultimately resulted in a 911 call by a family member.⁴ (Pl. Dep. 22-23.)

Paramedics and Midland City, Alabama, police officers responded to the call, arriving at Ms. Borton's residence between 2:00 p.m. and 2:30 p.m. on August 15. The paramedics intended to transport Ms. Borton to Southeast Alabama Medical Center ("SAMC"), the closest facility with a mental health ward, to be admitted as a patient for mental health treatment. (Alex Watson Dep. 14.) She did not want to go to the hospital or leave her house, and she refused to go with the paramedics. (Pl. Dep. 27; Whitfield Dep. 11.) At some point during the paramedics' coaxing, Ms. Borton "broke and ran" from the house, and held onto a tree in the front yard. (Whitfield Dep. 14; Pl. Dep. 26.) One of the officers described Ms. Borton as "agitated and confused," and reported that, notwithstanding her petite build,⁵ it took two police officers and two paramedics to restrain her "due to her extremely violent resistance." (Bradley Shaw Aff. 2.) Finally, after about fifteen minutes of intense struggle, Ms. Borton was secured face down to a gurney. (Pl. Dep. 27, 29; Whitfield Dep. 14; Watson Dep. 17.) Her wrists were handcuffed on each side of the gurney, and her legs were restrained with "sheets and straps." ⁶ (Pl. Dep. 29.) In the ambulance while secured to the gurney,Ms. Borton "continued to struggle violently, kicking and screaming." (Shaw Aff. 2.)

The ambulance ride from Midland City to SAMC took between ten and fifteen minutes.⁷ (Watson Dep. 20.) Upon arriving at SAMC's emergency room entrance, Ms. Borton was removed from the ambulance, still secured face down to the gurney.⁸ Also on the scene were Dothan Police Officers Jeff Schulmerich ("Schulmerich"), Jason Weed ("Weed") and a third officer,⁹ who had been dispatched to SAMC to assist the ambulance personnel with a "disorderly patient." (Schulmerich Aff. 2; Weed Dep. 9.) At this time, Ms. Borton was loud and boisterous. (Pretrial Order 4 (Pl. Contentions).)

Officers Schulmerich and Weed were walking alongside the gurney. (Pl. Dep. 76; Watson Dep. 38.) As Ms. Borton was wheeled into the emergency room still strapped to the gurney, Officer Schulmerich, without warning, tased her on her right leg. (Pl. Dep. 31, 36, 76.) Officer Schulmerich deployed the taser in the "drive stun" mode. In this mode,...