Merenda v. Tabor, CIVIL ACTION NO. 5:10-CV-493 (MTT)

• Court: United States District Courts. 11th Circuit. Middle District of Georgia
• Writing for the Court: MARC T. TREADWELL.
• Parties: LAWRENCE R. MERENDA, Plaintiff, v. JUSTIN J. TABOR, Defendant.
• Docket Number: CIVIL ACTION NO. 5:10-CV-493 (MTT)
• Decision Date: 07 May 2012

LAWRENCE R. MERENDA, Plaintiff,
v.
JUSTIN J. TABOR, Defendant.

CIVIL ACTION NO. 5:10-CV-493 (MTT)

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA MACON DIVISION

Date: May 7, 2012

ORDER

This matter is before the Court on the Defendant's Motion for Summary Judgment. (Doc. 24). The Court heard oral argument on March 20, 2012. For the following reasons, the Motion is DENIED in part and GRANTED in part.

I. FACTUAL BACKGROUND

This action arises out of the arrest of Plaintiff Lawrence Merenda on December 24, 2008, by Defendant Justin Tabor, who was then a trooper with the Georgia State Patrol. The Plaintiff's daughter, Laurie, was pulled over by the Defendant in the parking lot of the nursing home where the Plaintiff works. While the Defendant sat in his patrol car writing a ticket for Laurie for wearing her seatbelt under her arm, Laurie called the Plaintiff. The Plaintiff, who was "minutes away from leaving for the holidays," went outside to investigate. (Doc. 24-6, Deposition of Lawrence Merenda, at 14).

The Plaintiff first walked to Laurie's car and they briefly spoke about what had happened. The Plaintiff then walked to the Defendant's patrol car to speak with him. The Plaintiff leaned slightly into the open driver's window and asked the Defendant not

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to write Laurie a ticket because he viewed wearing a seatbelt under one's arm as a minor infraction and because Laurie was having financial problems. The Defendant said he would not excuse her infraction and went on to say, "Well, you being a parent, you should understand. Having a seatbelt on that way, she won't get thrown out of the car, but if you're okay with having her head smashing against the steering wheel, as a parent, that's up to you." (Doc. 24-5, Tabor audio/video recording 13:21:55 - 13:22:08) The Plaintiff said "this sucks," and, as he was turning to walk toward the nursing home in the direction of Laurie's car, said, according to the Defendant, "you're a f***ing asshole" or, according to the Plaintiff, "f***ing asshole." In any event, it is clear that the Plaintiff was referring to the Defendant. It is undisputed that the Plaintiff was turning away as he uttered the words. (Doc. 24-6, Deposition of Lawrence Merenda, at 23-24); (Doc. 24-4, Deposition of Justin Tabor, at 45-47). Although most of the Plaintiff's conversation with the Defendant can be heard clearly on the patrol car's audio/video recorder, his epithet cannot, either because he spoke softly or because he had turned away from the microphones, or both.¹ No one was in the vicinity and only the Defendant heard what the Plaintiff said.

As the Plaintiff swiftly walked toward the nursing home, the Defendant, from his patrol car, twice said "come here." The Plaintiff continued on his path, and the Defendant got out of his patrol car to catch up with him. In his "revised" incident report, the Defendant stated that at that point he only intended to detain the Plaintiff until he calmed down. (Doc. 24-4, at 55). However, the Defendant testified in his deposition that the decision to arrest the Plaintiff already had been made. (Doc. 24-4, Deposition

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of Justin Tabor, at 34). That is, he intended to arrest the Plaintiff because of what he said.

After he got out of the patrol car, the Defendant said "sir," and the Plaintiff immediately turned around.² When the Defendant reached the Plaintiff, he told him to place his hands behind his back,³ but the Plaintiff repeatedly asked why. The Plaintiff again was asked to place his hands behind his back, and the Plaintiff shouted, "Would you let me?" and "They're back there."⁴ (Doc. 24-5, Tabor audio/video recording 13:22:50 - 59). The Defendant placed the Plaintiff in a choke hold and bent him over the trunk of a car. In his revised incident report, the Defendant claimed the Plaintiff was moving his arms and hands in a threatening manner. (Doc. 24-4, at 55). The Defendant testified in his deposition, however, that he did not remember what threatening movements the Plaintiff had made, but the Plaintiff's arms were by his side and his elbows were locked, which he said could be considered threatening. (Doc. 24-4, Deposition of Justin Tabor, at 80-82). The Plaintiff admits he was stiff, but argues it was because the Defendant had pinned him between the trunk. The Plaintiff was handcuffed and placed into the back of the Defendant's patrol car.

The Plaintiff asked the Defendant to loosen the handcuffs, but the Defendant refused. The Plaintiff again asked the Defendant to loosen the handcuffs while the

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Defendant was requesting backup on the police radio. The Plaintiff asked a third time and the Defendant told the Plaintiff to wait. The Defendant told the Plaintiff what he did was foolish and said, "Larry, you can't talk to people like that. Especially not the police, and get away with it." (Doc. 24-5, Tabor audio/video recording 13:26:53 - 59).

Once Sergeant Keith Collins, the Defendant's then-supervisor, arrived on the scene, the Defendant walked to Laurie's car and explained that she was receiving a $15 ticket for improperly wearing her seatbelt. When Laurie asked what had happened with her dad, the Defendant said, "Well basically he said it was bulls***, and f*** you, and f*** that, and walked away. I told him to come here, he said f*** you I ain't doing anything. And that was that. You can't do that." (Doc. 24-5, Tabor audio/video recording 13:28:15 - 24).

The Defendant then explained what had happened to Collins. The Defendant told Collins that he placed the Plaintiff against the trunk, and the Plaintiff then said "f*** you" when asked to place his hands behind his back. (Doc. 24-5, Tabor audio/video recording 13:29:17 - 26). The Defendant went on to say "I wrestled with him for just a second, choked him.... I don't think we damaged the car, but I'mma look at it." (Doc. 24-5, Tabor audio/video recording 13:29: 26 - 35).

Collins spoke with the Plaintiff's coworkers who witnessed the use of force while the Defendant resumed his conversation with Laurie. The Defendant told Laurie the Plaintiff would be charged with felony obstruction. The Defendant then walked back to his patrol car and told the Plaintiff to get out so he could loosen the handcuffs. The Plaintiff complained the handcuffs were still too tight and the Defendant loosened them

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more. The Defendant took the Plaintiff to Houston County Jail, and he was released around 5:00 pm on Christmas Day.

Lieutenant Kim Pittman reviewed the Defendant's initial incident report and asked the Defendant to supplement it because "Tabor's account of his actions and the reasons for the arrest of the violator were vague and lacking detail." (Doc. 24-4, at 57). The initial incident report no longer exists. According to Special Investigations Director Angie Holt, "before an incident report is finalized and approved by a supervisor, changes to the report are made in the computer and copies of prior, unapproved versions are generally not retained." (Doc. 30-1, Affidavit of Angie Holt, at ¶ 11).

It was in his revised incident report that the Defendant gave an account of events that suggested the arrest was not based on the Plaintiff's use of profanity. However, as noted, the Defendant's deposition testimony makes clear that he based his decision to arrest on the Plaintiff's use of profanity. For example, when asked whether he disagreed with the Georgia State Patrol's ultimate conclusion that the Plaintiff's "use of profanity in your presence does not justify his arrest," the Defendant testified that he disagreed with that conclusion because the GSP "was confused as to who all was in my presence." (Doc. 24-4, Deposition of Justin Tabor, at 93). "I arrested him because he used profanity not just only in my presence but everyone else's presence." Id. However, as the videotape clearly reveals, no one was close enough to have overheard the Plaintiff's comments.

Approximately one week after the Plaintiff's arrest, his nephew, a law enforcement patrol officer in Florida, contacted the Defendant to discuss the events. The Plaintiff's nephew questioned whether someone could be arrested for using

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profanity toward a law enforcement officer, and the Defendant allegedly responded, "If I let him get away with cussing at me, everyone will think it's okay to cuss at me." (Doc. 5-1, Declaration of Thomas Merenda, at ¶ 8).

By the time of his release from jail on December 25, 2008, the felony obstruction charge had been reduced to misdemeanor obstruction. After the GSP concluded that the Defendant "had no legal cause to charge Mr. Merenda with Obstruction or Hindering a law enforcement officer," the GSP instructed the Defendant to contact the Houston County Solicitor's Office and arrange for the charge to be dismissed. (Doc. 24-4, at 59); (Doc. 30-1, at 7). Initially, the Assistant Solicitor told the Defendant that the charges would not be dismissed. The GSP then instructed a sergeant to take a copy of the videotape to the Solicitor's Office. After the Solicitor viewed the videotape, he agreed to nolle prosse the charge against the Plaintiff.

The Plaintiff brings this 42 U.S.C. § 1983 action for violations of his First and Fourth Amendment rights arising out of his arrest. The Plaintiff also brings an Eighth Amendment excessive force claim for injuries he allegedly sustained from being handcuffed....