Byrd v. Clark
| Decision Date | 03 March 1986 |
| Docket Number | No. 84-8175,84-8175 |
| Citation | 783 F.2d 1002 |
| Parties | Sun Cha BYRD, Plaintiff-Appellant, v. Tommy CLARK, Clifford Black, Larry Collins, Joey Whitley, Drew Solomon, and the City of Fitzgerald, Georgia, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
G.G. Joseph Kunes, Jr., Tifton, Ga., for plaintiff-appellant.
James V. Davis, Richard D. Hall, Albany, Ga., Robert E. Sherrell, Fitzgerald, Ga., for defendants-appellees.
Appeal from the United States District Court for the Middle District of Georgia.
Before VANCE and ANDERSON, Circuit Judges, and PITTMAN *, Senior District Judge.
Plaintiff Sun Cha Byrd, an American citizen of Korean origin, brought this action against several officers of the City of Fitzgerald, Georgia, its Chief of Police and the City of Fitzgerald, Georgia, itself, pursuant to the Civil Rights Acts, 42 U.S.C. 1981 et seq. She alleges constitutional deprivations at the hands of these officers, committed pursuant to a conspiracy to deprive her of her civil rights. It is also alleged that the City failed to properly train or supervise these officers. The district court granted motions for summary judgment of the defendants except that of Officer Black. The motion of Officer Black was granted in part and denied in part. The motion was granted insofar as plaintiff's complaint was based on events occurring on January 8, 1982, and denied insofar as the complaint was based upon events occurring on January 9, 1982. The court then dismissed the complaint against Black, without prejudice to her right to file her complaint in an appropriate state forum, stating "this is simply a tort action for which an adequate common-law remedy is fully available ... in the state courts." Record at 219. Plaintiff Byrd filed a tort action against Black in the Superior Court of Ben Hill County, Georgia. She appeals the entry of summary judgment in favor of all defendants concerning the January 8 incident, and the dismissal of her complaint against defendant Black.
Byrd raises these issues on appeal: (1) whether the district court erred in granting summary judgment in favor of all defendants concerning the January 8 incident, and (2) whether the district court erred in dismissing plaintiff's complaint against defendant Black, without prejudice to her right to file her complaint against him in an appropriate state forum.
This appeal arises out of two separate, but related encounters between the plaintiff and officers of the Fitzgerald, Georgia Police Department.
In the late afternoon of January 8, 1982, Drew Solomon, Chief of Police of the City of Fitzgerald, was returning to Fitzgerald by automobile from a trip to a nearby town. As he approached Fitzgerald he observed an automobile weaving in the highway in front of him to such an extent that he was unable to pass it. When he reached a point about a half mile or so from the city limits, he radioed the police station in Fitzgerald and instructed that the automobile be investigated. He continued to observe the erratic driving of the automobile.
When the call was received at headquarters, Clifford Black, a patrolman, and Larry Collins, a patrolman accompanying Black, responded to the call. They had been given a description of the automobile and, based on that description, Black and Collins intercepted the automobile. They, too, observed it to be driven in an erratic manner. The plaintiff was asked to enter the police car to be taken to the police station for a breath test. Black then drove the plaintiff to the station in the police vehicle and Collins drove her car to the station. Black delivered the plaintiff into the custody of Captain Clark, a police officer, and since it was the end of Black's shift, he did not see her again that day.
Captain Clark administered the breath test to the plaintiff and when the test proved to be negative, the plaintiff was released.
Plaintiff complains that the defendants lacked probable cause to stop and detain her, and that her car and handbag were illegally searched. She further contends that this was done pursuant to a conspiracy wherein her civil rights were denied because of her Korean national origin. The defendants respond that there was ample evidence to support a finding that they were entitled to stop plaintiff's vehicle and to investigate whether she was driving under the influence. Each defendant denies that he participated in any search of plaintiff's vehicle or effects. Each also denies that he knew the plaintiff before this incident and argues that this negates any allegation of conspiracy by them. The January 8 incident was the only contact between the plaintiff and defendants Clark, Collins, and Solomon.
On the next day, Saturday, January 9, plaintiff returned to the police station and had a conversation with Officer Black. That conversation became heated and ultimately resulted in plaintiff's arrest and incarceration by Officer Black for the offenses of disorderly conduct and resisting arrest.
As a result of the scuffle with Black, plaintiff alleges that she suffered injuries to her hip and shoulder. The shoulder injury required surgery to repair.
Plaintiff complains that this arrest by Black was without probable cause and was effectuated by the use of excessive force. She seeks damages from Black based upon alleged violations of the fourth and fourteenth amendments arising out of the arrest. She also seeks damages from Officer Joey Whitley for his failure to intervene in the alleged beating at the hands of Officer Black. She further alleges that the alleged beating would not have occurred but for Chief Solomon's failure to properly train and supervise his subordinate officers, and that Solomon's failure to train and supervise the officers is a custom or policy under which the City can be held liable under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The defendants respond that Black's use of force was reasonable under the circumstances, thereby shielding both Black and Whitley from Section 1983 liability.
A review of the record amply supports the conclusion that Officers Black and Collins were justified in stopping plaintiff's vehicle on the afternoon of January 8, 1982. Black, Collins and Chief Solomon all testified in their depositions that they observed plaintiff's vehicle weaving on the highway. The plaintiff, herself, admits driving erratically, though she says that she was trying to locate a noise in her car. That evidence establishes sufficient cause under the Georgia Implied Consent Law for the officers to bring the plaintiff in for a breath test. Given the finding of probable cause to stop and detain plaintiff Byrd, we find that the officers would have been justified in conducting a search under either the "search incident to arrest" or inventory search exceptions to the general requirement of having a search warrant to conduct a search. See United States v. Richards, 638 F.2d 765, 770 (5th Cir.) reh'g denied, 646 F.2d 962, cert. denied, 454 U.S. 1097, 102 S.Ct. 669, 70 L.Ed.2d 638 (1981).
There was no evidence to support the conspiracy allegation.
The plaintiff complains of no mistreatment on this occasion. The district court properly entered summary judgment in favor of all defendants to the extent that plaintiff's complaint is based on the January 8 incident.
The January 9 incident stands on a different footing. The district court properly noted the existence of a triable issue of fact on the question of the use of excessive force by Officer Black in effectuating plaintiff's arrest, and properly denied Black's motion for summary judgment. The district court's dismissal of plaintiff's complaint based on the existence of an adequate state remedy conflicts with this court's decision in Gilmere v. City of Atlanta, 774 F.2d 1495 (11th Cir.1985) (en banc).
In Gilmere, this court addressed the question of whether the existence of a parallel state law tort remedy precludes all Section 1983 actions based on the alleged use of excessive force by a police officer. After reviewing the legislative history of Section 1983, the Supreme Court's pronouncements in other cases, as well as the limits set by the Court in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the en banc court concluded that the existence of a parallel tort remedy does not automatically preclude a plaintiff from asserting substantive due process violations directly in federal court under Section 1983. Gilmere, 774 F.2d, at 1498.
In order to sustain the district court's dismissal of plaintiff's claim, this court must find, as a matter of law, that the defendant's conduct did not rise to the level of a constitutional tort.
The district court certainly was correct in recognizing that not every injury inflicted by a law enforcement official constitutes a violation of the fourteenth amendment. "Not every push or shove, even if it may seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). Some state-inflicted injury is so minor as to occasion a tort claim, rather than a constitutional violation. In order to recover under Section 1983, a plaintiff must show that the injury inflicted rose to the level of a constitutional tort, i.e., that the conduct complained of was so egregious as to exceed the boundaries of wrongful injuries redressable under tort law and which deprived the victim of a fourteenth amendment liberty interest without due process of law. Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981) (Unit A).
The test in this circuit is that first enunciated in Johnson v. Glick, 481 F.2d at 1033. Gilmere v. City of Atlanta, 774 F.2d...
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