McCall v. Crosthwait

• Decision Date: 23 December 2008
• Docket Number: No. 2:07-CV-870-WKW.,2:07-CV-870-WKW.
• Parties: Harry L. McCALL, Plaintiff, v. H.G. CROSTHWAIT, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

Page 1337

590 F.Supp.2d 1337

Harry L. McCALL, Plaintiff, v. H.G. CROSTHWAIT, et al., Defendants.

No. 2:07-CV-870-WKW.

United States District Court, M.D. Alabama, Northern Division.

December 23, 2008.

COPYRIGHT MATERIAL OMITTED

Harry L. McCall, Montgomery, AL, pro se.

Kimberly Owen Fehl, City of Montgomery, Montgomery, AL, for Defendants.

ORDER

W. KEITH WATKINS, District Judge.

Before the court is the Recommendation of the Magistrate Judge (Doc. # 56) on Defendants' motion for summary judgment (Doc. # 46). With the motion, Defendants filed a supporting memorandum with exhibits. (Doc. # 47.) Plaintiff Harry L. McCall ("McCall") filed a response (Doc. # 54), and a brief, with an exhibit, opposing summary judgment (Doc. # 55). The Magistrate Judge entered a recommendation that summary judgment be denied in part and granted in part (Doc. # 56, at 13-14), to which Defendants objected and requested leave of court to supplement the record (Doc. # 57). Their request to supplement the record was granted (Doc. # 58), and Defendants filed a certified copy of the complete medical record provided to them by a Dr. Gilberto Sanchez ("Dr.Sanchez") (Doc. # 59). For the following reasons, the Magistrate Judge's recommendation is due to be rejected in part and adopted in part.

The Magistrate Judge recommends denying summary judgment on the claim that Defendant Officer H.G. Crosthwait ("Officer Crosthwait") used excessive force against McCall when he was in the Montgomery Municipal Jail, in violation of the Fourth Amendment to the United States Constitution.¹ (Recommendation 13-14.) McCall was taken into custody for domestic violence and transported to the Montgomery Police Department.² (Recommendation 3-4.) McCall claims that Officer Crosthwait pushed him into a steel cell door and a plexiglass window when moving from an elevator. (Recommendation 4.) A medical team on site found that McCall had sustained no injuries, but he insisted on medical assistance from the hospital, which was granted. (Recommendation 4.) McCall complained of pain in his right shoulder, upper forearm and elbow, but x-rays indicated no abnormalities in the shoulder, and no acute findings in his elbow. (Recommendation 4.) McCall's only injuries were a contusion to his right elbow and shoulder, and he was told to take ibuprofen and follow up with his primary physician if needed. (Recommendation 5.)

The next day, McCall complained to Dr. Sanchez that he was suffering from shoulder and arm pain, headaches, dizziness, and blurred vision from, as he claimed, being slammed against the door. (Recommendation 5.) Dr. Sanchez referred him for CT scans of his head and spine. (Recommendation 5.) The head scan revealed a deformity "suspicious for an old inferior blow-out fracture" in the inferior orbital wall on the right. (Sanchez Complete Records 19.) The spinal scan showed a "small central disc protrusion/herniation which does not appear to contact the spinal cord or narrow the spinal canal." (Sanchez Complete Records 20.) However, there is no indication in the medical records or other admissible testimony as to causation of the old fracture or the disc protrusion. (See Sanchez Complete Records.)

The Fourth Amendment protects the "`right to be free from the use of excessive force in the course of an arrest.'"³ Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir.2002) (quoting Lee v Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002)). Government officials sued for excessive force, however, can assert qualified immunity. Defendants argue that Officer Crosthwait is entitled to qualified immunity on the excessive force claim, but the Magistrate Judge recommends that qualified immunity not be granted because there is a genuine issue of material fact as to whether the force was excessive or necessary.⁴ (Recommendation 10.)

Qualified immunity is more than "a mere defense to liability"—it is immunity from suit. Galvez v. Bruce, 552 F.3d 1238, 1241, 2008 WL 5246102, at *3 (11th Cir.2008) (quoting Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1773 n. 2, 167 L.Ed.2d 686 (2007)). Under qualified immunity, government officials acting pursuant to a discretionary function⁵ are protected from civil liability if the conduct does not violate "`clearly established statutory or constitutional rights of which a reasonable person would have known.'" Nolin v. Isbell, 207 F.3d 1253, 1255 (11th Cir.2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The "`threshold'" question of whether the officer violated a constitutional right must be resolved before considering whether the violation was clearly established. Galvez, 552 F.3d at 1241, 2008 WL 5246102, at *3 (quoting and citing Scott, 127 S.Ct. at 1774). Qualified immunity is warranted in excessive force cases "`unless application of the standard would inevitably lead every reasonable officer [in defendant's position] to conclude the force was unlawful,'" Reese v. Herbert, 527 F.3d 1253, 1272 (11th Cir.2008) (quoting Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir.1993), modified, 14 F.3d 583 (11th Cir.1994)). Galvez, 552 F.3d at 1244, 2008 WL 5246102, at *5. Officer Crosthwait is entitled to qualified immunity in this case because there was no Fourth Amendment violation.

The use of de minimis force constitutes a violation of the Fourth Amendment only if the officer was not entitled to arrest or detain the plaintiff. Reese, 527 F.3d at 1272. McCall has not challenged the basis for his arrest. Where probable cause is not challenged, the question of whether force was excessive is a question of whether the officer's actions were "`objectively reasonable' in light of the facts and circumstances [he] faced at the time."<sup>6</sup> Id. (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Those facts and circumstances include "`the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or attempting to evade arrest by flight.'" Id. (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865); see also Galvez, 552 F.3d at 1242, 2008 WL 5246102, at *4.⁷

De minimis force, without more, however, cannot constitute a Fourth Amendment violation if the basis of the arrest is not challenged. Nolin, 207 F.3d at 1257 (reaffirming that after Graham, the de minimis principle still applies);⁸ Reese, 527 F.3d at 1272. Under the de minimis principle, "a minimal amount of force and injury ... will not defeat an officer's immunity in an excessive force case." Nolin, 207 F.3d at 1258 (emphasis added). Indeed, even if the force was unnecessary, if "the actual force used and the injury inflicted were both minor in nature .... the application of the excessive force standard would not inevitably lead an official in [the defendant's] position to conclude that the force was unlawful." Id. at 1256-57 (discussing and quoting Jones v. City of Dothan, 121 F.3d 1456, 1460-61 (11th Cir.1997) (per curiam)); Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir.2003).⁹

In McCall's case, the hospital found no injuries after the jail incident, aside from a contusion to his right elbow and shoulder. Even if the contusion was caused by the incident, and not by any immediately preceding domestic dispute, the injury was minor. See, e.g., Vinyard, 311 F.3d at 1349 n. 13 (noting a strong argument that "minor bruising" is de minimis injury); Nolin, 207 F.3d at 1258 n. 4 (finding de minimis force when "minor bruising" along with minimal force); Jones, 121 F.3d at 1460 (finding that the plaintiff's pain from lifting his arms because of a prior stroke, and his pain from an arthritic knee after having his legs kicked apart was "minor" injury); Gold v. City of Miami, 121 F.3d 1442, 1446 (11th Cir.1997) (per curiam) (describing "skin abrasions" as a minor injury, though they were "skin abrasions for which [the plaintiff] did not seek medical treatment"). The scans taken after McCall's next-day visit with Dr. Sanchez exposed only two problems. The first, found by the head scan, was a "deformity in the inferior orbital wall on the right suspicious for an old inferior blow-out fracture." (Sanchez Complete Records 19 (emphasis added).) The report, thus, cuts against establishing any causation between the incident and injury. The second problem, found by a spinal scan, was "a small central disc protrusion/herniation which does not appear to contact the spinal cord or narrow the spinal canal." (Sanchez Complete Records 20.) There is no indication in the medical records, or other testimony, that the spinal finding could have been caused by Officer Crosthwait's actions. Indeed, there is insufficient evidence to adjudicate on the severity, much less the causes of the injury. It should also be noted that "`[w]hat would ordinarily be considered reasonable force does not become excessive force when the force aggravates (however severely) a pre-existing condition the extent of which was unknown at the time.'" Durruthy, 351 F.3d at 1094 n. 10 (quoting Rodriguez v. Farrell, 280 F.3d 1341, 1353 (11th Cir.2002)). From the record now before the court, the injuries McCall incurred were only minimal.

The force Office Crosthwait exerted was also minimal. "The minor nature of [an] injury [can] reflect[ ] that minimal force was used...." Gold, 121 F.3d at 1446 (in the context of handcuffing); see also Skrtich v. Thornton, 280 F.3d 1295, 1302 (11th Cir.2002) (describing the type of injury as a way of showing that force was not de minimis). The Eleventh Circuit has found de minimis force and qualified immunity in the following circumstances: when an officer put a foot on the face of the plaintiff, who was face down on the pavement, after he asked why he was being arrested, Crosby v. Monroe County, 394 F.3d 1328, 1334-35 (11th Cir.2004); when the plaintiff was grabbed and shoved a few feet against a vehicle while pushing a knee...