McElroy v. City of Birmingham

• Court: U.S. District Court — Northern District of Alabama
• Writing for the Court: SHARON LOVELACE BLACKBURN
• Citation: McElroy v. City of Birmingham, 903 F.Supp.2d 1228 (N.D. Ala. 2012)
• Decision Date: 28 September 2012
• Docket Number: Case No. 2:09–CV–0246–SLB.
• Parties: Elizabeth W. McELROY, as Administratrix of the Estate of Reginald W. Osby, Plaintiff, v. CITY OF BIRMINGHAM, ALABAMA; Matthew Hutchins, in his Official Capacity as an Agent for the City of Birmingham and in his individual capacity, Defendants.

903 F.Supp.2d 1228

Elizabeth W. McELROY, as Administratrix of the Estate of Reginald W. Osby, Plaintiff,

v.CITY OF BIRMINGHAM, ALABAMA; Matthew Hutchins, in his Official Capacity as an Agent for the City of Birmingham and in his individual capacity, Defendants.

Case No. 2:09–CV–0246–SLB.

United States District Court,

N.D. Alabama,

Southern Division.

Sept. 28, 2012.

Brian M. Clark, Daniel E. Arciniegas, Jon C. Goldfarb, Rachel L. McGinley, Ann C. Robertson, L. William Smith, Wiggins Childs Quinn & Pantazis, Birmingham, AL, for Plaintiff.

Frederic L. Fullerton, II, Nicole Elise King, City of Birmingham–Law Department, Elizabeth Bosquet Shirley, Michael KK. Choy, Richard R. Owens, Burr & Forman LLP, Birmingham, AL, for Defendants.

MEMORANDUM OPINION

SHARON LOVELACE BLACKBURN, Chief Judge.

This case is presently pending before the court on defendants' Motion for Summary Judgment. (Doc. 30.) ¹ Plaintiff Elizabeth W. McElroy, as Administratrix of the Estate of Reginald W. Osby, has sued the City of Birmingham and its police officer, Matthew Hutchins, alleging violations of Mr. Osby's Fourth Amendment rights and Fourteenth Amendment/Equal Protection rights. She also alleges a state-law wrongful death claim. These claims are based on the shooting death of Mr. Osby on October 12, 2008. Upon consideration of the record, the submissions of the parties, the arguments of counsel, and the relevant law, the court is of the opinion that defendants' Motion for Summary Judgment, (doc. 31), is due to be granted in part and denied in part.

I. SUMMARY JUDGMENT STANDARD

Pursuant to Fed.R.Civ.P. 56(a), summary judgment is appropriate “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.” ²Fed.R.Civ.P. 56(a); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions,interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed.R.Civ.P. 56(c)(1); see also Clark, 929 F.2d at 608 (“it is never enough simply to state that the non-moving party cannot meet its burden at trial”).

In deciding a motion for summary judgment, the court's function is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249, 106 S.Ct. 2505. “[C]ourts are required to view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion.’ ” Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176(1962) (per curiam)). Nevertheless, the non-moving party “need not be given the benefit of every inference but only of every reasonable inference.” Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir.1999) (citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 n. 12 (11th Cir.1988)); see also Scott, 550 U.S. at 380, 127 S.Ct. 1769 (“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”).

II. STATEMENT OF FACTS³

Exhibit A to the Scheduling Order states, “All statements of fact must be supported by specific reference to evidentiary submissions.” (Doc. 10, Ex. A at 3.) Also—

Any statements of fact that are disputed by the moving party must be followed by a specific reference to those portions of the evidentiary record upon which the disputation is based. All additional material facts set forth in the statement required of the opposing parties will be deemed to be admitted for summary judgment purposes unless controverted by the statement of the movant.

( Id. at 6 [original emphasis deleted].) “The court reserves the right sua sponte to strike any statements of fact or responsive statements that fail to comply with these requirements.” ( Id. [original emphasis deleted].)

A number of defendants' responses to plaintiff's undisputed facts do not comply with the court's Exhibit A; therefore, these facts are deemed admitted for purposes of summary judgment.

A. BACKGROUND

Defendant Matthew Hutchins is a Police Officer with the City of Birmingham Police Department. He graduated from the Birmingham Police Academy in 2003. (Doc. 31, Ex. 1 at 9–12; id., Ex. 7 at 18.) After a month of training, Officer Hutchins was assigned to the Patrol Division in the West Precinct. ( Id., Ex. 1 at 11.)

Officer Hutchins received training at the Police Academy on dealing with a person with a mental illness and on the City's Use–of–Force Policy. (Ex. 1 at 16, 156–57, 160–62, 224.) The City's Use–of–Force Policy establishes and regulates the amount of force a Birmingham police officer is allowed to use in various situations. ( See doc. 31, Exs. 3 and 4.) The policy defines “lethal force” as “Physical force which is readily capable of causing death or serious bodily injury,” and “any force which the officer believes could result in serious injury or death.” ( Id., Ex. 3 at §§ IB and IIF.) An officer's justification for the use of lethal force “must be limited to what reasonably appears to be the facts known or perceived by the officer at the time he decides to use such force.” ( Id. § VIIC.) A suspect using a deadly weapon is a Level VI incident and allows the use of firearms by the police officer. ( Id., Ex. 3, §§ IIIF and IVF.)

Officer Hutchins was trained how and when to use a taser versus a firearm when dealing with someone with a deadly weapon. ( Id., Ex. 1 at 29, 32–35; id., Ex. 2.) The taser is a Level IV Force weapon. ( Id., Ex. 2 § IIA.) Because tasers do not always work properly, Officer Hutchins was trained to use a firearm, not a taser, against persons who are armed with a deadly weapon and are threatening deadly force against the officer or another person. ( Id., Ex. 1 at 33–34.) The policy states a taser is “an additional tool” and so it does not replace firearms; it is used to control dangerous or violent people when deadly force does not appear to be justified and/or necessary, or when there is a reasonable expectation that it is unsafe for officers to approach within contact range of the subject. ( Id., Ex. 2, § IIG.)

Hutchins testified that he is a Native American of the Echota Cherokee Tribe, but he stated he was white on forms completed in his capacity as a police officer. (Doc. 31, Ex. 1 at 27, 37; id., Ex. 13; doc. 34, Exs. 3–7 and 58.)

B. PRIOR CALLS TO CITY'S POLICE DEPARTMENT BY CHRISTINE LEATH

The following facts are deemed undisputed: ⁴

1. On June 19, [2008], Christine Leath[, the wife of decedent Reginald Osby,] called the police about her 27–year–old schizophrenic son, Deron Cook, not taking his medication and behaving violently. The dispatcher coded that call as a “signal 78” (for mentally disturbed persons) and sent the police to her residence. [ (Doc. 34, Ex. 1 ¶¶ 2–3; id., Ex. 17; doc. 31, Ex. 10 at 69–71.) ]

2. Subsequently, Deron went to Brookwood Hospital for three weeks for treatment for mental illness, and Christine moved to 1917 Avenue J in Ensley. [Doc. 34, Ex. 1 ¶ 4; id., Ex. 18.) ]

3. After Deron's hospital discharge, Christine called the police again on August 5, 2008 about Deron's erratic behavior relating to his mental illness, and the police again responded to this signal 78 call. [ ( Id., Ex. 1 ¶ 5; id., Ex. 19.) ]

4. Next, on September 26, 2008 Christine called the police yet again about Deron being off his medication and behaving very aggressively due to his mental illness, and the police again responded to this signal 78 call. [ ( Id., Ex. 1 ¶ 6; id., Ex. 14.) ]

(Doc. 35 at 6.) The responding officer on these calls did not “flag” this residence in police records to alert other officers to reoccurring problems with someone who is mentally ill at this address. (Doc. 31, Ex. 7 at 16–17; doc. 34, Ex. 50 at 31.)

C. EVENTS OF OCTOBER 12, 2008

The following faces are deemed undisputed: ⁵

45. On Sunday October 12, 2008, Christine was cooking dinner at her 1917 Ave. J. home in Ensley AL while her husband, 59 year old Reginald Osby, (“Osby”) the decedent in this case, was in the bedroom. [ (Doc. 34, Ex. 1 ¶ 9.) ]

46. Deron burst into the house in a rage. Although Christine had been feeding Deron and at times allowing him to sleep at her home, Christine had told Deron to leave because he had not been taking his mental illness medication. [ ( Id. ¶¶ 8, 10.) ]

47. When Christine told Deron to leave, Deron became aggressive towards Christine, cursing and slapping her; therefore, Christine called the police, yet again, on Deron. [ ( Id. ¶¶ 10–12.) ]

48. Osby came out of the back room and Deron behaved aggressively towards him. Christine's 13 year old son, Reginald Cook, came into the house and told Deron to leave his parents alone. Deron reacted by chasing Reginald, grabbing him and stabbing him with...