Howard v. City of Demopolis

• Decision Date: 25 November 2013
• Docket Number: Civil Action No. 2:12–0522–KD–M.
• Citation: 984 F.Supp.2d 1245
• Parties: Louis HOWARD and Ledora Howard, Plaintiffs, v. CITY OF DEMOPOLIS, ALABAMA, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

984 F.Supp.2d 1245

Louis HOWARD and Ledora Howard, Plaintiffs,

v.CITY OF DEMOPOLIS, ALABAMA, et al., Defendants.

Civil Action No. 2:12–0522–KD–M.

United States District Court,

S.D. Alabama,

Northern Division.

Nov. 25, 2013.

Dennis Steverson, Sr., Law Office of Dennis Steverson, LLC, Tuscaloosa, AL, for Plaintiffs.

Rick A. Howard, Holtsford, Gilliland, Higgins Hitson & Howard, PC, April W. McKay, Montgomery, AL, for Defendants.

ORDER

KRISTI K. DuBOSE, District Judge.

This action is before the Court on the motion for summary judgment, brief in support and exhibits, and suggested determinations of fact and conclusions of law filed by defendants City of Demopolis, Demopolis Police Department, Mayor J. Michael Grayton, Chief of Police Tommie J. Reese, and Sergeant Richard Bryant (docs. 19–21); the response in opposition with exhibits and response to defendants' suggested determination of fact filed by Louis and Ledora Howard (“the Howards”)(doc. 23); and the defendants' reply (doc. 24). Upon consideration, and for the reasons set forth herein, the motion for summary judgment is GRANTED as to all claims against the City of Demopolis, Mayor Grayson, Chief Reese, and the Demopolis Police Department; summary judgment is granted in favor of Sergeant Bryant as to Count Six for assault, Count Eight for outrage, and Count Nine for loss of consortium; and denied as to Sergeant Bryant as to Count One for excessive force, Count Three for false arrest, Count Five for negligence, and Count Seven for malicious prosecution.

I. Procedural history

The Howards filed their complaint against the defendants on August 8, 2012 (doc. 1–1). Plaintiff Louis Howard brings Count One pursuant to 42 U.S.C. § 1983 against all defendants for violation of his constitutional rights under the Fourth, Fifth and Fourteenth Amendments ¹; Count Two pursuant to 42 U.S.C. § 1983 against the City of Demopolis for adopting policies, procedures, practices or customs within the Demopolis Police Department that allow the use of excessive force; Count Three pursuant to 42 U.S.C. § 1983 against Sergeant Bryant in his individual and official capacity for false arrest; Count Four against the City of Demopolis and Chief Reese for negligent supervision of Sergeant Bryant; Count Five against Sergeant Bryant for negligence; Count Six against Sergeant Bryant for assault; Count Seven against the defendants for malicious prosecution; and Count Eight against the defendants for outrage. Ledora Howard brings Count Nine for loss of consortium.

On August 21,2012, defendants removed the action to this Court and filed their answer. They admitted certain allegations such as the location of the incident alleged in the complaint, the Howards' citizenship, that Ms. Howard posted a bond for Mr. Howard, that Mr. Howard filed a notice of claim for certain actions against the City, and the Howards' marital status, but otherwise denied all allegations.

II. Findings of fact²

Louis Howard was diagnosed with paranoid schizophrenia in 1982. He takes Thorazine and Risperidone to control his illness. On May 25, 2011, he and his wife Ledora were traveling home to Vicksburg, Mississippi after visiting family in Michigan. Ms. Howard was driving and Mr. Howard was in the front passenger seat of their van. After they left Michigan, Mr. Howard had a mental episode because he had not been taking his medication. Ms. Howard called 911 for help. The police and paramedics arrived and convinced Mr. Howard to take his medication. After about thirty minutes, they were on their way to Vicksburg. They stopped to rest in Indiana and Ms. Howard had difficulty convincing Mr. Howard to get back in the van. After he did, she continued driving.

When they neared Demopolis, Alabama, they were detoured because of floodwater. Mr. Howard was afraid of the rising water and his mental state deteriorated. While Ms. Howard was driving, Mr. Howard took off his clothes and threw them and other personal items out the van window. At about 2:30 a.m., Ms. Howard called 911 for help and was told to pull over until help arrived.

Officers Marcus Williams, Ellen Campbell and Kevin Johnson from the Demopolis Police Department responded to the call. When they arrived Mr. Howard was seated in the van. The officers called Sergeant Bryant who was their supervisor. When he arrived, Ms. Howard and the officers were standing on the passenger side of the van, watching Mr. Howard who was sitting in the front passenger seat. Mr. Howard remembers that he was “sitting there quiet”. (Doc. 23–3, p. 2, Howard Deposition) Sergeant Bryant asked Ms. Howard if she had clothes for Mr. Howard. She responded that she did, and she and Officer Campbell went to the rear of the van to get the clothes. Ms. Howard got a pair of pants and shirt. She gave the clothes to Officer Campbell. Mr. Howard put on the clothes and got back into the van.

At this point, Sergeant Bryant was standing by the front passenger door, Officer Williams was standing on the passenger side front and Officer Campbell was at the rear of the van with Ms. Howard as she “put things away”.

Ms. Howard then heard “tussling and words, talking words.” (Doc. 23–2, p. 52, Ledora Howard deposition) She looked up and saw Sergeant Bryant “tussling and pulling” Mr. Howard through the window of the van. She stopped repacking and went to see what was going on. She saw Mr. Howard on the ground with Sergeant Bryant. She did not see Sergeant Bryant hit Mr. Howard, but Mr. Howard's lip was bleeding. Ms. Howard did not hear any statements made by Mr. Howard to the officers.

Mr. Howard states that Sergeant Bryant approached the window and began to talk to him and in response, he asked Sergeant Bryant where was his wife, Ms. Howard. Sergeant Bryant kept “hammering” at Mr. Howard, asking “what was his problem” and “kept rattling at” him, and in response, “every time he asked” Mr. Howard asked “where is my wife”. (Doc. 23–3, p. 3, Louis Howard deposition) At this time, the door to the van was closed but the window was all the way down. Officer Johnson was standing by the passenger door. Officer Williams was standing two feet away from Sergeant Bryant and Mr. Howard. Mr. Howard states that he had complied with the officers' instructions to remain in his seat.

Mr. Howard states that he did not try to hit Officer Johnson. Instead, while Mr. Howard was sitting in the vehicle, Sergeant Bryant punched him twice, which knocked him out and caused him to slump out the window. When Mr. Howard woke up he was “kind of whaling his arms”, and Sergeant Bryant grabbed him and pulled him out of the window and onto the ground. (Doc. 23–4, p. 2, Campbell deposition) According to Mr. Howard, while he was on the ground, Sergeant Bryant hit him with his fist and busted his lip. Mr. Howard did not strike Sergeant Bryant. He did not refuse to get up off the ground, nor fight back, struggle or try to resist.³

Officer Johnson testified that when he arrived Mr. Howard was agitated, making irrational and vulgar statements and twice tried to come out of the van window. Officer Johnson testified that Sergeant Bryant was asking Mr. Howard to calm down and then Mr. Howard came back out of the van window and “just started swinging” at Sergeant Bryant. He testified that Mr. Howard hit Sergeant Bryant and then Bryant hit Mr. Howard twice and pulled him out of the van. (Doc. 20–4, p. 3–4)

Officer Williams testified that when he arrived Mr. Howard was “lashing out” verbally,threatening his wife, threatening the officers, “pointing and swinging his arms”, and acting “violent and belligerent”. (Doc. 20–5, p. 2–3) Officer Williams testified that Mr. Howard threatened Sergeant Bryant who then told him to calm down, but Mr. Howard “leaped out the window” and “slapped” or “hit” Sergeant Bryant “open handed in the face twice.” ( Id., p. 4)

Officer Campbell stated that Mr. Howard became irate with Sergeant Bryant while he was questioning him. She stated that Mr. Howard yelled and cursed at Sergeant Bryant, threatened to beat him and tried to start a fight. Mr. Howard then came half way out the window and hit Sergeant Bryant on the cheek on the left side and Sergeant Bryant hit Mr. Howard two times in the face. Mr. Howard then slumped over the vehicle and Sergeant Bryant pulled him out the window. (Doc. 20–8)

Sergeant Bryant testified that when he first arrived the officers were trying to get Mr. Howard to take his medication and after he took his medication, they were “waiting on the medication to take hold” and that Mr. Howard was “irate”. (Doc. 20–3, p. 4) He also testified that Mr. Howard was acting and talking irrationally and making threats to the officers and Ms. Howard. Sergeant Bryant testified that Mr. Howard came out of the van window, up to his waist, and struck him twice before he struck Mr. Howard and knocked him out. (Doc. 20–3, p. 6–7, 12) Sergeant Bryant pulled Mr. Howard out of the window, placed him on the ground, and he arrested Mr. Howard for assaulting an officer. ⁴ Mr. Howard resisted but was handcuffed by Sergeant Bryant with the assistance of Officer Williams, placed in leg restraints by Sergeant Bryant, put in the patrol car, and taken to the jail by Officer Williams. (Doc. 20–3, p. 7, 12, Bryant Deposition; Doc. 20–5, p. 8, Williams deposition) Officer Williams testified that it took four officers to place Mr. Howard in the jail cell because of his resistance. (Doc. 20–5, p. 8, Williams deposition)

III. Conclusions of lawA. Summary judgment standard

Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). If a party asserts “that a fact cannot be or is genuinely disputed”, the party must

(A) cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for...