Jordan v. Cobb County, Georgia

Decision Date28 September 2001
Docket NumberNo. CIV.A.1:99-CV-2837-J.,CIV.A.1:99-CV-2837-J.
Citation227 F.Supp.2d 1322
PartiesJames Howard JORDAN, Plaintiff, v. COBB COUNTY, GEORGIA, and Mitchell Avery Worley, Defendants.
CourtU.S. District Court — Northern District of Georgia

Sidney L. Moore, Jr., Office of Sidney L. Moore, Jr., Jason R. Schultz, Office of Jason R. Schultz, Atlanta, GA, for Plaintiff.

Dorothy Hemmer Bishop, Christine C. Daniel, Stephen D. Morrison, Jr., Hugh William Rowling, Jr., Office of Cobb County Attorney, Law Department, Marietta, GA, George M. Weaver, Hollberg & Weaver, Atlanta, GA, for Defendants.

ORDER

CARNES, District Judge.

The above-captioned action is before the Court on defendants' Motion for Summary Judgment [20], plaintiff's motion to reopen discovery [29], defendant's motion to strike statement of John Arthur Smith [30], defendants' motion to extend time to file a reply brief [31], and Christine Daniel's motion to withdraw as counsel for defendants [42].

The Court has reviewed the record and the arguments of the parties and, for the reasons set forth below, concludes that defendants' motion for summary judgment [20] should be GRANTED IN PART and DENIED IN PART, plaintiff's motion to re-open discovery [29] should be DENIED, defendant's motion to strike statement of John Arthur Smith [30] should be DENIED, defendants' motion to extend time to file a reply brief [31] should be GRANTED, and Christine Daniel's motion to withdraw as counsel for defendants [42] should be GRANTED.

BACKGROUND
I. Introduction

This case arose out of the shooting of plaintiff James Howard Jordan by Cobb County Police Officer Mitchell Avery Worley while plaintiff was in the custody of the Cobb County Police Department after having been arrested for suspicion of driving under the influence of alcohol ("DUI"). Plaintiff filed the Complaint in this action on October 29, 1999. He has asserted claims under 42 U.S.C. §§ 1983 and 1988 and the Fourth and Fourteenth Amendments to the Constitution against both Cobb County and Officer Worley, and he has also asserted a state law claim of assault and battery against Officer Worley. Plaintiff claims that Officer Worley and Cobb County subjected him to excessive force and a wrongful seizure in violation of the Fourth and Fourteenth Amendments, and also claims that Officer Worley committed an unlawful assault and battery against him.

Pursuant to an Order entered on July 10, 2000[16], the discovery period in this action ended on October 3, 2000. On October 20, 2000, defendants filed a motion for summary judgment [20], arguing that plaintiff has failed to present sufficient evidence to establish a genuine issue of material fact over whether his constitutional rights were violated or whether Officer Worley committed an assault and battery against him, and also arguing that Officer Worley is entitled to qualified immunity on all plaintiff's claims against him personally. On November 15, 2000, plaintiff filed a motion to re-open discovery [29] in order to conduct a limited inquiry into the facts underlying a newspaper report of an allegedly similar incident involving a shooting of a suspect by another Cobb County Police Officer. Both of these motions, as well as a motion by defendants to strike a statement submitted by plaintiff [30], a motion by defendants to extend the time to file a reply brief [31], and a motion by defense counsel Christine Daniel to withdraw as counsel for defendants [42], are now pending before the Court.

II. Summary of Facts

In sum, the undisputed facts in this matter are that plaintiff was arrested by Officer Worley on January 28, 1999, for suspicion of driving under the influence of alcohol; plaintiff was thereafter taken by Officer Worley to Precinct One of the Cobb County Police Department; while in a holding cell, plaintiff resisted being handcuffed by Officer Worley; after a struggle or altercation, plaintiff was shot twice in the abdomen by Officer Worley; and there were no witnesses to the shooting other than plaintiff and Officer Worley. Virtually all of the facts and circumstances surrounding the altercation and the shooting are in dispute, as plaintiff and Officer Worley have presented very different accounts of what transpired between them. Unsurprisingly, plaintiff contends that Worley was the aggressor and shot him without any provocation, while Worley contends that he only shot plaintiff because plaintiff was beating him with his own baton and Worley feared for his life.

For the purposes of this discussion, the Court must construe all facts in a light most favorable to the plaintiff, as required on a defendant's motion for summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th Cir. 1994); Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 469 (11th Cir.1993). Accordingly, the following facts are viewed in the light most favorable to plaintiff, and are assumed true only for the purposes of this discussion.

Officer Mitchell Avery Worley has been employed with the Cobb County Police Department ("CCPD") since December 4, 1994, and is currently an agent assigned to the Marietta-Cobb-Smyrna Narcotics Unit. (Defs. Statement of Material Facts as to Which There Are No Genuine Issue to Be Tried ("SMF") at ¶ 1.) On January 28, 1999, Worley was a uniformed patrol officer assigned to the Uniform Patrol Division of the CCPD. (Id. at ¶ 6.) At approximately 11:22 p.m. on January 28, 1999, Worley was dispatched to an accident in the parking lot of a Kroger on Canton Road at New Chastain, Cobb County, Georgia. (Id. at ¶ 15.) Upon being dispatched, Worley activated his lights and siren and traveled to the accident location in his patrol vehicle. (Id. at ¶ 16.) The patrol vehicle that Worley was operating on that day was equipped with video and audio recording equipment; such equipment is installed and designed to activate upon the activation of the emergency equipment by the officer operating the vehicle. (Id. at ¶ 17.) Upon arrival at the accident location, Worley learned that a male, later identified as plaintiff James Howard Jordan, had driven his white Ford minivan into a post in front of the Kroger store. (Id. at ¶ 18; see Plaintiff's Response to Defendants' Statement of Material Facts ("Pl. Resp. to SMF") at ¶ 18.)

Plaintiff had earlier been at a bar/restaurant called Brewsters with friends celebrating the fact that the Atlanta Falcons football team was going to play in the Superbowl. (Pl. Dep. at 43-46.) While at Brewsters, plaintiff had two shots of Jack Daniels and two kamikazes and had shared a pitcher of beer with his friends. (Id. at 46.) After leaving Brewsters by himself at approximately 11:15 p.m., plaintiff drove his minivan by a Kroger grocery store that was in the same shopping center as Brewsters, and saw a woman and a small child step off the curb in front of the Kroger. (Id. at 47, 51.) Plaintiff could see the mother but he could not see the child who had just stepped off the curb, and he quickly applied his brakes and turned the steering wheel to avoid hitting the child, at which point plaintiff drove his van into a pole or column in front of the Kroger store. (Id. at 48.) His air bag deployed, and plaintiff got out of the van; he was not injured from the collision. (Id. at 49.)

Soon afterwards Officer Worley arrived on the scene, and was joined by CCPD Officer Ott; Worley spoke with plaintiff about the accident and observed that plaintiff smelled strongly of alcohol and that plaintiff's speech was slurred. (SMF at ¶ 19.) When Worley asked him to produce his license and proof of insurance, plaintiff produced a license that had expired in May, 1998. (Id. at ¶ 21.) Worley then administered several field sobriety tests to plaintiff. (Id. at ¶ 22.) As a result of those field sobriety tests and Worley's observations of plaintiff, Worley advised plaintiff that he was placing plaintiff under arrest for driving under the influence of alcohol ("DUI"). (Id. at ¶ 23.)

Worley and Ott then placed handcuffs on plaintiff, although plaintiff contends that he objected to the handcuffs and asked several times that the officers remove the handcuffs. (Id. at ¶¶ 24-25; Pl. Resp. to SMF at ¶¶ 25-26.) Plaintiff then spoke with his two roommates who had arrived on the scene about calling a tow truck for his wrecked van. (SMF at ¶ 31.) Worley then placed plaintiff in the patrol vehicle and began to transport plaintiff to CCPD Precinct 1 to administer the state test, which plaintiff had agreed to take. (Id. at ¶ 32.)

Upon arrival at Precinct 1, Worley removed plaintiff from the patrol vehicle and placed him in one of the two holding cells. (Id. at ¶ 34.) Although Worley had apprised others via radio that he had arrived at the precinct with his arrestee, Worley did not observe any other officers or persons in the building or in the vicinity. (Id. at ¶ 35.) Plaintiff then asked Worley again to remove the handcuffs so that he could go to the restroom. (Id. at ¶ 36; Pl. Resp. to SMF at ¶¶ 25, 36.) Worley complied with plaintiff's request, removed his handcuffs, locked the holding cell door leaving plaintiff inside, observed plaintiff urinate to ensure that plaintiff did not flush any contraband down the commode, and then proceeded to another room in the precinct where the intoximeter was located in order to warm up the machine to administer the test to plaintiff. (SMF at ¶ 37.) While waiting for the intoximeter to warm up, Worley began his paperwork on plaintiff's arrest. (Id. at ¶ 38.)

Worley then went back to the holding cell to re-handcuff plaintiff and to escort him to the intoximeter to administer the test. (Id. at ¶ 39.) At this point, the accounts of Worley and plaintiff diverge sharply. According to plaintiff, Worley came back to the holding cell and told him that he had to be handcuffed to be taken to the intoximeter, but plaintiff...

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