McMullen v. City of Port Wentworth, CASE NO. CV417-067

Decision Date26 September 2019
Docket NumberCASE NO. CV417-067
PartiesMARCUS MCMULLEN and EMERY MAE MCMULLEN, Plaintiffs, v. CITY OF PORT WENTWORTH GEORGIA, OFFICER CHASSITY D. PELLEGRINO, SERGEANT BRIAN PHINNEY, and CHIEF OF POLICE BRIAN LIBBY, Defendants.
CourtUnited States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
ORDER

Before the Court are Defendants City of Port Wentworth, Georgia ("City of Port Wentworth"), Sergeant Phinney ("Phinney"), and Chief Libby's ("Libby") Motion for Summary Judgment (Doc. 28) and Defendant Etzel's1 Motion for Summary Judgment (Doc. 32). For the following reasons, Defendants City of Port Wentworth, Phinney, and Libby's Motion for Summary Judgment (Doc. 28) is GRANTED and Defendant Etzel's Motion for Summary Judgment (Doc. 32) is GRANTED.

BACKGROUND2

This case stems from the arrest of Plaintiffs in April 2015. On April 6, 2015, Defendant Etzel and Defendant Phinney of the City of Port Wentworth Police Department responded to a call involving a reported domestic dispute at the Sai Food Mart convenience store. (Doc. 44 at 1.) Defendants Etzel and Phinney were not provided the names or descriptions of the persons involved in the reported domestic dispute. (Id. at 2.) Defendants Etzel and Phinney arrived on scene and saw Plaintiff Marcus McMullen ("Mr. McMullen") in his car in the store's parking lot, which was parked directly outside the front of the store. (Id.) Plaintiff Emery Mae McMullen ("Mrs. McMullen") and two nephews of Mr. and Mrs. McMullen were inside the convenience store when Defendants Etzel and Phinney arrived on scene. (Id.) Defendant Etzel proceeded directly into the convenience store to investigate the reported domestic dispute and performed a full sweep of the inside of the store. (Id.) Defendant Phinney approached Mr. McMullen and spoke with Mr. McMullen. (Id. at 2-3.) Mr. McMullen stated that Defendant Phinney asked whether he had witnessed thedispute, to which Mr. McMullen responded in the negative.3 (Id. at 3; Doc. 28, Attach. 6 at 44.) Mr. McMullen then entered the convenience store. (Doc. 44 at 4.) Defendant Phinney entered the convenience store after Mr. McMullen and ordered Mr. McMullen to exit the store. (Id.) During this time, Defendant Etzel observed Mr. McMullen standing with Mrs. McMullen and their nephews near the checkout counter and saw Defendant Phinney was standing by Mr. McMullen. (Doc. 45 at 4.) As Defendant Etzel walked towards the door of the convenience store, she heard Defendant Phinney tell Mr. McMullen "I said outside, c'mon" as Defendant Phinney holds the door open and gestures for Mr. McMullen to leave the store. (Id.) Defendant Etzel approached Mr. McMullen and Defendant Phinney and directed Mr. McMullen to leave the store by telling Mr. McMullen "[h]e [Defendant Phinney] said outside." (Id. at 5.) During the time Defendant Etzel was responding to the domesticdisturbance call at Sai Food Mart, her body camera was activated and recording.

In the video, Defendant Etzel approaches Mr. McMullen and tells him "[h]e said outside. . . Go." (Doc. 28, Attach. 4 at 8:05-08.) Defendant Etzel, while holding a pen in her left hand, then places her hands on Mr. McMullen. (Id.) Plaintiffs allege that during this exchange, Defendant Etzel "stabbed" Mr. McMullen with her pen. In the video, Defendant Etzel can be seen holding a pen in her left hand when she touches Mr. McMullen. However, at 8:07, the video shows that Defendant Etzel's left hand is spread wide across the left side of Mr. McMullen's back with the pen laying flat against Mr. McMullen's back held in place by Defendant Etzel's palm. (Doc. 28, Attach. 4 at 8:07.) Thus, while this Court credits Mr. McMullen's account that the pen "stabbed" him, the contention that Defendant Etzel used her pen to intentionally stab him is not supported by the body cam video.4 The video supports the facts that thepen poking or stabbing Mr. McMullen in the arm was incidental to Defendant Etzel placing her hands on Mr. McMullen to guide him from the convenience store.

After Defendant Etzel directs Mr. McMullen outside, both verbally and with her hands on his body, Mr. McMullen turns around to face her and says "[w]ait a minute." (Doc. 44 at 5.) Officer Etzel draws her taser, gestures towards the open convenience store door, and tells Mr. McMullen "[g]o outside right now. Go." (Id.; Doc. 28, Attach. 4 at 8:09-10.) Defendant Etzel then turns towards Mrs. McMullen and points her hand, holding a pen, at her and says "and you too, don't touch me." (Doc. 28, Attach. 4 at 8:12-14.) Defendant Etzel then faces Mr. McMullen again and tells him "[g]o outside . . . if an officer asks you to go outside, you go outside." (Doc. 44 at 6; Doc. 28, Attach. 4 at 8:14-17.) Mr. McMullen replies "[f]or what?" and Defendant Etzel responds "[c]ause we're investigating something right now and we don't roll up into a food mart and say 'hey, let me talk to you right now.' " (Doc. 28, Attach. 4 at 8:18-25.) Mr. McMullen responds, "I'm not asking to talk to anybody." (Id. at 8:26.) Defendant Etzel points at the door beingheld open by Defendant Phinney and repeats "[g]o outside right now." (Id. at 8:26-27.) Mr. McMullen tells her "I got my family here with me." Defendant Eztel repeats, while continuing to gesture towards the door with her left hand, "Go outside right now." (Id. at 8:28-29.) A female voice is then heard on the video saying "[y]eah, we're going out." (Id. at 8:30.) Defendant Etzel repeats "Go outside." (Id. at 8:31.) After this instruction, Mr. McMullen turns around to face the checkout counter of the store, putting his back towards Defendant Etzel, and says "[y]ou know what . . . ." (Id. at 8:31-33.)

Plaintiffs contend that Mr. McMullen was attempting to gather his family when he turned his back to Defendant Etzel. (Doc. 44 at 7.) According to Plaintiffs, Defendant Etzel then "forcibly grabs, shoves, and without hesitation, tases Mr. McMullen" and that "Officer Phinney joins in, grabbing Mr. McMullen and slamming him to the ground." (Doc. 45 at 3.) According to Defendants, after Mr. McMullen turns away from Defendant Etzel, Defendant Etzel places her hands on Mr. McMullen to direct him outside after which he turns quickly towards her and "aggressively raised his elbow." (Doc. 44 at 7.) Defendants contend that Defendant Phinney, concerned about Mr. McMullen harming DefendantEtzel, chose to physically take down Mr. McMullen. (Doc. 32, Attach. 1 at 7).

The video depicts Defendant Etzel approaching Mr. McMullen with the pair coming so close together that the body cam is obscured by Mr. McMullen's shirt. (Doc. 28, Attach. 4 at 8:33-38.) Defendant Etzel touches him and says "go outside before . . . ." (Id.) In quick succession, Mr. McMullen turns towards Defendant Etzel, Defendant Etzel pushes him and then the taser is heard being deployed. (Doc. 28, Attach. 4 at 8:33-38.) Additionally, the Court credits Plaintiffs' account that Mr. McMullen did not aggressively raise his elbow or fist because such facts are not clearly contradicted by the body cam video.

The video goes on to show Defendant Phinney and Mr. McMullen on the floor of the convenience store with Defendant Phinney instructing Defendant Etzel to "cuff him." (Doc. 45 at 10; Doc. 28, Attach. 4 at 8:40-44.) As Defendant Etzel has her hand on Mr. McMullen's arm, who is still lying on the floor, Mrs. McMullen approaches the two and reaches out her arm. (Doc. 45 at 12; Doc. 28, Attach. 4 at 8:45-46.) Defendant Etzel shouts at Mrs. McMullen to "get off me!" (Doc. 44 at 8; Doc. 28, Attach. 4 at 8:47) and Mrs. McMullen then stumbles into a drink container nearthe checkout counter (Doc. 28, Attach. 4 at 8:47-48). According to Plaintiffs, Defendant Etzel pushed Mrs. McMullen into the cashier station and Mrs. McMullen never touched Defendant Etzel. However, Defendants deny the contention that Mrs. McMullen did not touch Defendant Etzel. (Doc. 44 at 8.) Mr. McMullen is then handcuffed and Defendant Phinney asks Mr. McMullen if "he was physically hurt" and Mr. McMullen responds in the affirmative. (Id. at 9.) Defendant Phinney calls for emergency medical services to come to the scene and Defendant Etzel orders Mrs. McMullen to go outside the store. (Id.) Once outside, Defendant Etzel approaches Mrs. McMullen and asks her "was there any reason you decided to touch me in there?" (Doc. 44 at 10; Doc. 28, Attach. 4 at 11:43-47.) Mrs. McMullen responds, "[n]o, I just wanted to be with him." (Doc. 44 at 10; Doc. 28, Attach. 4 at 11:50-51.) Defendant Etzel then asks Mrs. McMullen if she had her own phone that she could call someone to come pick up the kids because Mrs. McMullen was going to jail as well. (Doc. 44 at 10.) After being informed that she would be arrested, Mrs. McMullen denies having touched Defendant Etzel and states that she "just wanted to touch him and then you pulled me off." (Doc. 28, Attach. 4 at 12:31-32.) Defendant Etzel then replies that"[a]nd I did. I pushed you away." (Id. at 12:33-34.) Defendant Etzel then places Mrs. McMullen in handcuffs and escorts her to her police car. (Doc. 44 at 10.) Mr. McMullen was arrested and charged with misdemeanor obstruction of a law enforcement officer and Mrs. McMullen was arrested and charged with misdemeanor obstruction of a law enforcement officer as well as simple battery on a law enforcement officer. (Id. at 11.)

The only other individual defendant, Defendant Libby, was not present at the scene or otherwise directly involved in the arrests of Mr. and Mrs. McMullen. (Id.) At the preliminary hearing held in Municipal Court in Port Wentworth following the incident, a judge found that probable cause existed. (Id.) The charges against Plaintiffs were ultimately dismissed. (Id.)

Based on the events surrounding their arrests, Plaintiffs filed a complaint in this Court. (Doc. 1.) Both Plaintiffs have brought state law claims for aggravated assault and battery, false arrest and imprisonment, and loss of consortium against Defendants Phinney and...

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