Matthews v. City of Atlanta, Civ. A. No. 1:87-CV-0026-JOF.

• Decision Date: 19 October 1988
• Docket Number: Civ. A. No. 1:87-CV-0026-JOF.
• Citation: 699 F. Supp. 1552
• Parties: Lamar MATTHEWS, as Administrator for the Estate of Larry James Matthews, Plaintiff, v. CITY OF ATLANTA, a municipal corporation, and Sgt. R.H. Coleman, Individually and in his capacity as Police Officer for the City of Atlanta, Defendants.
• Court: U.S. District Court — Northern District of Georgia

699 F. Supp. 1552

Lamar MATTHEWS, as Administrator for the Estate of Larry James Matthews, Plaintiff, v. CITY OF ATLANTA, a municipal corporation, and Sgt. R.H. Coleman, Individually and in his capacity as Police Officer for the City of Atlanta, Defendants.

Civ. A. No. 1:87-CV-0026-JOF.

United States District Court, N.D. Georgia, Atlanta Division.

October 19, 1988.

Charles W. Boyle, Moran & Boyle, Atlanta, Ga., for plaintiff.

Marva Jones Brooks, W. Roy Mays, III, Office of Atlanta City Atty., Atlanta, Ga., for defendants.

ORDER

FORRESTER, District Judge.

This matter is before the court on defendants' motion for summary judgment, Fed.R.Civ.P. 56; plaintiff's motion for leave to amend his complaint or in the alternative to dismiss without prejudice, Fed.R.Civ.P. 15, 41; defendants' motion for protective order, Fed.R.Civ.P. 26; and plaintiff's motion to strike, Fed.R.Civ.P. 12.

I. STATEMENT OF FACTS.

Plaintiff Lamar Matthews brings this action as administrator of the estate of Larry James Matthews (hereinafter referred to as "decedent"). Complaint, ¶ 5. Defendant R.H. Coleman is a police officer employed by the defendant City of Atlanta. Id., ¶ 7. The defendant City of Atlanta is a municipal corporation of the State of Georgia. Id., ¶ 6. The court's jurisdiction is premised upon the federal question presented by plaintiff's constitutional claims brought pursuant to 42 USC §§ 1981, 1983 and 1988. Id., ¶ 1.

This action arose out of the following series of events. On the morning of June 30, 1986, defendant Coleman was having coffee in a southwest Atlanta restaurant when he was approached by an individual named Alvin Smith.¹ Mr. Smith informed defendant Coleman that a truck previously stolen from his employer was parked in the restaurant's parking lot and occupied by two men, one of whom was the decedent. Complaint, ¶¶ 8-9; Brief at 1. On the basis of this information, defendant Coleman left the restaurant and proceeded to approach the truck in question. Complaint, ¶ 9; Brief at 1. While approaching the truck, defendant Coleman removed his revolver from its holster. Complaint, ¶ 10; Brief at 1. Upon reaching the truck, defendant Coleman ordered decedent, who was at that time occupying the driver's seat of the stolen truck, to disengage the engine. Id. Then, placing his weapon at or near decedent's head, defendant Coleman ordered both men to exit from the truck. Id.

Despite defendant Coleman's order, decedent failed to disengage the truck's engine. Plaintiff asserts that decedent requested permission first to place the truck in its parking gear. Complaint, ¶ 11. Defendant Coleman then reached into the truck in an effort to disengage its engine himself. Id.; Brief at 1. At this point, the truck lurched forward, striking either defendant Coleman's hand or his weapon. The weapon fired one round which struck decedent in the head, fatally wounding him. The present lawsuit followed.

II. DISCUSSION

A. Defendant Coleman.

1. Plaintiff's Alternative Motions.

As noted above, plaintiff has filed alternative motions for leave to amend or for voluntary dismissal. As to the former motion, plaintiff seeks leave of court to amend his complaint to assert a state law negligence claim against defendant Coleman. Defendant Coleman opposes plaintiff's proposed amendment on the grounds that plaintiff's motion comes after the filing of summary judgment motions and after the close of discovery.

Fed.R.Civ.P. 15 provides that a party seeking to amend his complaint more than twenty days after service must seek leave of the court or written consent of the adverse party. The rule also states that "leave shall be freely given when justice so requires." Although the decision whether to grant leave is within the discretion of the district court, the rule contemplates that leave shall be granted unless there is a substantial reason to deny it. Halliburton and Associates, Inc. v. Henderson, Few and Company, 774 F.2d 441, 443 (11th Cir.1985); Espey v. Wainwright, 734 F.2d 748, 750 (11th Cir.1984). Permission may be denied where leave would cause undue delay or prejudice to the opposing party, where prior amendments have failed to cure deficiencies, or if the motive of the amendment is dilatory. Halliburton and Associates at 443-44; Espey at 750.

In the case at bar, the court is mindful that the allowance of plaintiff's proposed amended complaint would not be without some prejudice to defendant Coleman. The court does not believe, however, this warrants the denial of plaintiff's motion. First, it appears that the omission of the negligence claim from the original complaint may have been due to mere oversight. Plaintiff's original complaint provides,

This complaint also sets forth certain causes of action arising under the Constitution and laws of the State of Georgia, which are based upon the same facts giving rise to the federal causes of action contained in this complaint. This court's pendent jurisdiction gives it power to determine these causes of action.

Complaint, ¶ 4. See also id., ¶ 1 ("Plaintiffs sic further invoke the pendent jurisdiction of this court to hear and decide claims arising under state law"). Second, the court believes the allegations of plaintiff's original complaint provide defendant Coleman with adequate notice of the conduct upon which plaintiff's negligence claim is based. Indeed, the allegations of paragraphs 10 through 14 are the same allegations plaintiff relies upon to support the proposed negligence claim. Finally, plaintiff's proposed negligence claim clearly arises from the same conduct and occurrence as his § 1983 claim against defendant Coleman. For these reasons, and because of the liberal treatment generally afforded such motions, plaintiff's motion for leave to amend is GRANTED and his alternative motion for leave to dismiss without prejudice is DENIED.

2. Defendant Coleman's Motion for Summary Judgment.

Before turning to the merits of defendant Coleman's motion for summary judgment, the court will set forth the standard controlling practice under Fed.R.Civ.P. 56. Courts should grant motions for summary judgment when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The movant bears the initial burden of asserting the basis for his motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). This burden may be discharged by merely "showing — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party's case." Id. at 325, 106 S.Ct. at 2554. The non-moving party must then "go beyond the pleadings" and present evidence designating "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. at 2553. Thus, to survive defendant Coleman's motion for summary judgment, plaintiff must come forward with specific evidence of every element essential to his case so as to create a genuine issue for trial. Id. at 323, 106 S.Ct. at 2553.

The two essential elements to a claim under § 1983 are (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that this conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-13, 68 L.Ed.2d 420 (1981). Thus, where defendant Coleman has met his initial burden under Rule 56, plaintiff can only defeat his motion by identifying and presenting evidence of both elements of his section 1983 claims.

(a) The First and Fifth Amendment Claims.

It is clear from the court's reading of plaintiff's response to defendants' motion for summary judgment that any claims brought pursuant to the first and fifth amendments have been abandoned. In any event, it is clear that neither claim was maintainable in the first instance. First, no allegation of the complaint supports any claim of a first amendment violation. Second, because the undisputed facts show defendant Coleman to be a state, and not a federal, agent, plaintiff's fifth amendment claim is similarly unfounded. See Metz v. McKinney, 583 F.Supp. 683, 688 n. 4 (S.D. Ga.1984), aff'd, 747 F.2d 709 (11th Cir. 1984); Patterson v. Fuller, 654 F.Supp. 418, 421 (N.D.Ga.1987). For these reasons, defendant Coleman's motion for summary judgment as to plaintiff's first and fifth amendment claims is GRANTED.

(b) The Substantive Due Process Claim.

In the case at bar, there is no dispute that defendant Coleman was acting under color of state law when the shooting occurred. He was on duty, in full uniform and in the process of arresting plaintiff's decedent and his companion when the shot was fired. It is equally clear, however, that despite its tragic nature, the shooting of plaintiff's decedent does not rise to the level of a substantive due process violation.

In Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) and Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), the Supreme Court reexamined the state of mind requirement for a due process claim brought pursuant to § 1983. Both cases involved an alleged liberty deprivation, and in both the Court held that mere negligence does not "deprive" an individual of his life, liberty or property as the term is used in the fourteenth amendment. In Daniels, the Court pointed out that the due process clause was intended "to prevent governmental power from being used for purposes of oppression" and concluded that "due process is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property (emphasis in original)." Daniels, 474 U.S. at 329, 332, 106 S.Ct. at 664, 665. Similarly, in Davidson, decided the same day as Daniels, the Court held that notwithstanding the seriousness of the injury inflicted, "where a government official...