Coble v. City of White House

• Decision Date: 11 February 2011
• Docket Number: No. 09–6156.,09–6156.
• Parties: Jerry T. COBLE, Plaintiff–Appellant,v.CITY OF WHITE HOUSE, TENNESSEE and Curtis Carney, Jr., Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

634 F.3d 865

Jerry T. COBLE, Plaintiff–Appellant,

v.CITY OF WHITE HOUSE, TENNESSEE and Curtis Carney, Jr., Defendants–Appellees.

No. 09–6156.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 10, 2010.Decided and Filed: Feb. 11, 2011.

ARGUED: David L. Cooper, The Law Office of David L. Cooper, P.C., Nashville, Tennessee, for Appellant. Robert M. Burns, Howell & Fisher, PLLC, Nashville, Tennessee, for Appellee. ON BRIEF: David L. Cooper, The Law Office of David L. Cooper, P.C., Nashville, Tennessee, for Appellant. Robert M. Burns, Howell & Fisher, PLLC, Nashville, Tennessee, for Appellee.Before: MARTIN and SILER, Circuit Judges; BELL, District Judge. ^*

OPINION

BELL, District Judge.

Plaintiff Jerry T. Coble (“Coble”) appeals the district court's entry of summary judgment in favor of Officer Curtis Carney, Jr. on Coble's claim under 42 U.S.C. § 1983 that Officer Carney used excessive force against him during his arrest for drunk driving.¹ The issue on appeal is whether the district court erred in finding that there was no question of fact for trial because Coble's testimony regarding the force used was contradicted by a contemporaneous audio recording. For the reasons that follow, we REVERSE the district court's judgment.

I.

On April 6, 2007, at approximately 10:40 p.m., Officer Curtis Carney, Jr., was on patrol for the City of White House Police Department, when a truck driven by Coble exited the parking lot of Bob & Rhonda's Sports Grill and pulled onto the highway in front of Officer Carney's patrol car. After seeing the truck cross the fog line three times, Officer Carney activated his in-car video camera and flashing lights. Coble did not stop. He continued driving until he turned into the driveway of his home and reached the end of his driveway.

Officer Carney pulled up behind him and exited his patrol car. Coble did not obey Officer Carney's preliminary commands or answer his questions. Instead, he argued with Officer Carney, told him to get off his property, and began walking toward his house. When he failed to obey Officer Carney's command to stop, Officer Carney removed his chemical agent from its holster, sprayed Coble, and performed a take-down maneuver, during which Coble sustained an open fracture of his right ankle. After a struggle on the ground, Officer Carney, with the assistance of Officer Scott Bilbrey, who had arrived on the scene, succeeded in bringing Coble's arms behind his back and handcuffing him. Once Coble was handcuffed, he did not offer any further resistance.

The dispute that is at the heart of this appeal concerns what happened after Coble was handcuffed. None of these events were captured on videotape because they did not occur in front of the patrol car. However, even after Officer Carney and Coble were out of camera range, sounds transmitted by the microphone worn by Officer Carney continued to be recorded. Coble testified that Officer Carney pulled him up by the handcuffs, and, pushing him from behind, walked him 7 or 8 steps on his broken ankle, leaving a 34–foot trail of blood. Coble testified that Officer Carney would have known that his leg was broken because bones were sticking out of Coble's leg, his tennis shoe was laid over sideways, one of his legs was shorter than the other, and he was screaming and calling Officer Carney names. Coble testified that when Officer Carney finally stopped, he let go of the handcuffs and dropped Coble face-first on the concrete.

Officer Carney's testimony differs markedly from Coble's testimony. Officer Carney testified that, after handcuffing Coble, he and Officer Bilbrey helped Coble to a standing position and began walking with him toward the patrol car. After three or four steps, Coble said his leg was broken. Officer Carney testified that he looked down, saw that Coble's leg was broken, and immediately sat him down on the driveway.

Coble was transported by helicopter to a hospital. A blood sample collected from him at 2:10 a.m. on April 7, 2007, indicated a blood alcohol level of 0.16. Coble pled guilty to charges of driving under the influence and resisting arrest.

Coble filed this action against Officer Carney, Officer Bilbrey, and the City of White House, alleging claims of excessive force, false arrest, and failure to implement appropriate policies under 42 U.S.C. § 1983, as well as state law claims of negligence, negligent infliction of emotional distress, negligent training and supervision, reckless infliction of emotional distress, and assault and battery. The claims against Officer Bilbrey were dismissed on stipulation of the parties. Officer Carney and the City of White House filed motions for summary judgment. The district court determined that Coble's § 1983 claim for the excessive use of force before he was handcuffed and brought under control was barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). With respect to Coble's claim that Officer Carney used excessive force after he was handcuffed by walking him on a broken ankle and dropping him face-first onto the ground, the district court cited Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), in support of its determination that, in light of the audio recording, it was not required to accept Coble's version of the events:

Listening to the audiotape, no reasonable jury could find by a preponderance of the evidence that Coble screamed during the first few steps while he was being escorted, that he called Officer Carney names to get him to stop walking, or that Coble “splattered” on the pavement. To the contrary, the audiotape reveals only the sound of shuffling bodies as if the three men were walking, and Coble was silent. After a few moments, Coble cried out that his leg was broken, and the shuffling stopped. An officer said, “Sit down!” There is no audible noise that once could associate with a body dropping or “splattering” to the pavement.” ... The testimony of Officers Carney and Bilbrey square with the audiotape, while Coble's testimony does not. Therefore, under Scott, the Court need not adopt Coble's version in ruling on the motions for summary judgment.

Coble v. City of White House, Tenn., No. 08–314, 2009 WL 2850764, at *11 (M.D.Tenn. Aug. 29, 2009). The district court concluded that because Coble failed to generate a genuine issue of material fact for trial on his constitutional claim, Officer Carney was entitled to summary judgment.

The district court also concluded that Officer Carney was entitled to qualified immunity, and that there was no evidence to support Coble's claims against the City of White House for failure to train or supervise. The district court accordingly granted the defendants' motions for summary judgment on Coble's § 1983 claims, and declined to exercise supplemental jurisdiction over Coble's state-law claims. Coble appealed.

II.

Coble's sole challenge on appeal is to the district court's determination that Officer Carney did not use excessive force after Coble was restrained in handcuffs.²

We review a district court order granting summary judgment de novo. Schreiber v. Moe, 596 F.3d 323, 329 (6th Cir.2010). “Summary judgment is proper if the evidence, taken in the light most favorable to the nonmoving party, shows that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law.” Id. (quoting Hartman v. Great Seneca Fin. Corp., 569 F.3d 606, 611 (6th Cir.2009)).

A constitutional excessive force claim is analyzed under an “objective-reasonableness standard, which depends on the facts and circumstance of each case viewed from the perspective of a reasonable officer on the scene.” Miller v. Sanilac Cnty., 606 F.3d 240, 251 (6th Cir.2010) (citing Graham v. Connor, 490 U.S. 386, 395–96, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). “The first step in assessing the constitutionality of [an officer's] actions is to determine the relevant facts.” Scott, 550 U.S. at 378, 127 S.Ct. 1769. To the extent there is disagreement about the facts, we must review the evidence in the light most favorable to the plaintiff, and draw all inferences in his favor. McKenna v. Edgell, 617 F.3d 432, 437–38 (6th Cir.2010) (citing Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir.2004)).

Construing the facts on summary judgment in the light most favorable to the non-moving party usually means adopting the plaintiff's version of the facts. Scott, 550 U.S. at 378, 127 S.Ct. 1769. However, the Supreme Court clarified in Scott that facts must be viewed in the light most favorable to the non-moving party “only if there is a ‘genuine’ dispute as to those facts.” Id. at 380, 127 S.Ct. 1769 (quoting Fed.R.Civ.P. 56(c)). In Scott, the Supreme Court held that a police officer was entitled to summary judgment on a motorist's claim that the officer used excessive force in ramming his car after a high-speed chase, notwithstanding the fact that the motorist and the officer gave conflicting testimony regarding the events in question. Id. at 386, 127 S.Ct. 1769. In Scott, the conflicting testimony did not create an issue of fact for trial because the record included a videotape capturing the police chase which clearly contradicted the motorist's contention that he was driving carefully. Id. at 379, 127 S.Ct. 1769. As noted by the Supreme Court:

When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Id. at 380, 127 S.Ct. 1769. In the summary judgment context, “appeals courts should not accept ‘visible fiction’ that is ‘so utterly discredited by the record that no reasonable jury could have believed’ it.” United States v. Hughes, 606 F.3d 311, 319 (6th Cir.2010) (quoting Scott, 550 U.S. at 379–81, 127 S.Ct. 1769).

Coble contends that Scott and ...