Dupree v. City of Phenix City
| Decision Date | 02 July 2012 |
| Docket Number | CIVIL ACT. NO. 3:10cv970-WKW |
| Parties | DANNY LAWRENCE DUPREE, Plaintiff, v. CITY OF PHENIX CITY, ALABAMA, et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
(WO)
In this 42 U.S.C. § 1983 action, the pro se plaintiff, Danny Lawrence Dupree ("Dupree"), complains that defendants Phenix City Police officer Sherry Lashley ("Lashley") and the City of Phenix City violated his constitutional rights by unlawfully arresting him, and improperly seizing his shotgun. The plaintiff filed two amended complaints setting forth his allegations in more detail. In his second amended complaint, Dupree specifically complains that defendant Lashley arrested him without a warrant in violation of the Fourth Amendment to the United States Constitution, and defendant City of Phenix City has a practice and custom of permitting improper arrests. See Doc. # 31. The court has jurisdiction of the 42 U.S.C. § 1983 claim pursuant to its federal question jurisdiction under 28 U.S.C. § 1331.
This case is now pending before the court on the defendants' motion for summary judgment (doc. # 72) filed on April 30, 2012. The plaintiff has filed a response in opposition to the defendants' motion. After careful consideration and review, the court concludes thatthe motion for summary judgment is due to be granted in part and denied in part.
II. 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 [dispute]1 as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam) (citation omitted); FED.R.CIV.P. 56(a) (). 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 [dispute] of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by presenting evidence which would be admissible at trial 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 322-324.
Once the movant meets his evidentiary burden and demonstrates the absence of agenuine dispute of material fact, the burden shifts to the non-moving party to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to his case exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Celotex, 477 U.S. at 324; FED.R.CIV.P. 56(c) (). A genuine dispute 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.
To survive the movant's properly supported motion for summary judgment, a party is required to produce "sufficient [favorable] evidence" "that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). "If the evidence [on which the nonmoving party relies] is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Id. at 249-250. "A mere 'scintilla' of evidence supporting the opposing party'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, 1576-1577 (11th Cir. 1990) quoting Anderson, supra. Conclusoryallegations based on subjective beliefs are likewise insufficient to create a genuine dispute of material fact and, therefore, do not suffice to oppose a motion for summary judgment. Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001). Hence, when a nonmoving party fails to set forth specific facts supported by appropriate evidence sufficient to establish the existence of an element essential to its case and on which the nonmovant will bear the burden of proof at trial, summary judgment is due to be granted in favor of the moving party. Celotex, 477 U.S. at 322 ().
For summary judgment purposes, only disputes involving material facts are relevant. United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004). What is material is determined by the substantive law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004) (). "The 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) (citation omitted). To demonstrate a genuine dispute of material fact, the party opposing summary judgment Matsushita Elec. Indus. Co, Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases where the evidence before the court which is admissible on its face or which can be reduced to admissible form indicates that there is no genuine dispute of material fact and that the party moving for summary judgment is entitled to it as a matter of law, summary judgment is proper. Celotex, 477 U.S. at 323-324 (); Waddell, 276 F.3d at 1279 (). However, if there is a conflict in the evidence, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255; Ruiz de Molina v. Merritt & Furman Ins. Agency, 207 F.3d 1351, 1356 (11th Cir. 2000).
Although factual inferences must be viewed in a light most favorable to the nonmoving party and pro se complaints are entitled to liberal interpretation by the courts, a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine dispute of material fact. Beard v. Banks, 548 U.S. 521, 529 (2006); Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Thus, the plaintiff's pro se status alone does not mandate this court's disregard of elementary principles of production and proof in a civil case. With these principles of law in mind, the court will determine now whether summary judgment isappropriate and should be granted.
III. FACTS2
On November 13, 2008, defendant Sherry Lashley was employed as a patrol officer by the City of Phenix City Police Department. (Doc. # 72, Ex. B, Aff. Lashley at 1). At approximately 6:30 a.m. on that day, Lashley was dispatched to North Railroad Street and 6th Avenue in response to a report of a "male subject near a dark truck displaying an unknown type weapon." (Doc. # 72, Ex. A, at 3).
When she arrived, Lashley encountered Dupree. When Dupree saw Lashley's patrol car, he grabbed grocery bags and began to exit his truck. (Doc. # 82, Aff. Dupree at 3). What happened next is hotly disputed. According to Dupree, Lashley instructed him to put his groceries back in his truck which he did. (Id.) She then instructed him to turn around, and he complied. He tried to explain that his truck was stuck but Lashley "had no interest in what [he] wanted to say." (Id.) Lashley then requested permission to search Dupree's truck which he refused. Dupree asserts that he "complied in every way with said officer's instruction." (Id.) He did not raise his voice, curse, yell, use racial epithets, use obscene language or disobey any orders by the officer. (Id. at 3-4). Dupree also asserts that at notime did he remove his shotgun from his truck. (Id. at 4). He contends that he was "polite, cooperative, [and] not argumentative," but he did not give officer Lashley permission to search his truck. (Id.) Finally, Dupree contends that he made no statement at any time to Lashley about the shotgun in his truck. (Id.)
Lashley describes a completely different scene. According to Lashley's affidavit,3 Dupree was standing outside the truck when she arrived. (Doc. # 72, Ex. B, at 1). Very quickly a witness told Lashley that Dupree had pointed a shotgun at him earlier. (Id.). Lashley approached Dupree who "appeared agitated in [he...
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