Patterson v. Fuller

• Citation: 654 F. Supp. 418
• Decision Date: 17 February 1987
• Docket Number: Civ. A. No. C86-15R.
• Parties: Otis PATTERSON, Plaintiff, v. Max FULLER, Defendant.
• Court: U.S. District Court — Northern District of Georgia

654 F. Supp. 418

Otis PATTERSON, Plaintiff, v. Max FULLER, Defendant.

Civ. A. No. C86-15R.

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

February 17, 1987.

William W. Keith, III, Chatsworth, Ga., for plaintiff.

J. Melvin England, Atlanta, Ga., for defendant.

ORDER

HAROLD L. MURPHY, District Judge.

Otis Patterson, the father of the deceased, has filed a complaint against Max Fuller pursuant to 28 U.S.C. § 1343, 42 U.S.C. § 1983 and 42 U.S.C. § 1988, alleging Fuller violated his son's rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments of the United States Constitution. Count One alleges Fuller used excessive and barbarous force in attempting to arrest and in arresting Philip Patterson. Count Two alleges Fuller was grossly negligent in attempting to arrest and in arresting Philip Patterson. Count Three alleges Fuller was negligent in attempting to arrest and in arresting Philip Patterson.

The action is now before the Court on defendant's motion for summary judgment. In moving for summary judgment, defendant first makes a very general argument that a negligent tort does not rise to the level of a constitutional tort such as to be cognizable under 42 U.S.C. § 1983. The remainder of defendant's brief is devoted to the argument that he is entitled to the defense of qualified immunity because he acted in good faith based on reasonable grounds. For the reasons set forth below, defendant's motion is GRANTED in part and DENIED in part.

The following facts are undisputed. At approximately 1:00 a.m., on October 6, 1985, Glenn Lee Gentry and Philip Patterson escaped from the Gordon County, Georgia jail. Gentry had just pled guilty to three armed robberies and one motor vehicle theft, and Patterson was serving a one year sentence under a plea of guilty to a charge of habitual traffic violator. Gentry and Patterson hid in a house of a friend and were later taken to the trailer home of Patterson's sister. Both fugitives later went to another mobile home located in Pickens County, Georgia. It was then that law enforcement authorities were notified as to where Gentry and Patterson were staying.

The sheriff of Pickens County requested assistance in apprehending the escapees. Max Fuller, a Gordon County Sheriff's Department deputy, and Sgt. DeWayne Broome of the Georgia State Patrol, were both sent to Pickens County. All assisting law enforcement officers were warned to expect the two fugitives to be armed.

Upon reaching the Pickens County location, Fuller and Sgt. Broome entered the mobile home. Sgt. Broome was armed with a shotgun and a .357 magnum revolver, and Fuller was armed with a .38 service revolver. The officers first saw Glenn Lee Gentry, and Sgt. Broome apprehended him and made him lie on the floor. Philip Patterson was found standing in the bedroom of the mobile home, and Fuller, while standing in the hallway, commanded him to come out with his hands up. Patterson walked from the bedroom to the edge of the hallway but then made a move to go behind the door. Fuller immediately cocked his pistol and told Patterson to halt. Patterson obeyed the command and walked down the hallway towards Fuller. Fuller, holding his cocked revolver in both hands, began walking backwards and ordered Patterson to go into the living room and lie down on the floor next to Gentry, who was lying face down on the floor. As Patterson did so, Sgt. Broome, holding his shotgun, was standing over Gentry, and Fuller was standing at the head of Patterson. While Patterson was on the floor, he moved his arm and Fuller reacted by moving away with the result being that he stepped on a glass ashtray which was sitting on the floor. When Fuller stepped on the ashtray, he lost his balance and it was at this time that his cocked revolver fired. Fuller's bullet hit Patterson in the head, and Patterson died as a result.

"Summary judgment is a lethal weapon, and courts must be mindful of its aims and targets and beware of overkill in its use." Brunswick Corp. v. Vineberg, 370 F.2d 605, 612 (5th Cir.1967). Fed.R.Civ.P. 56(c) authorizes summary judgment when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." The party seeking summary judgment bears the burden of demonstrating that no dispute as to any material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Bingham, Ltd. v. United States, 724 F.2d 921, 924 (11th Cir.1984). In assessing whether the movant has met this burden, the evidence and all factual inferences should be viewed in the light most favorable to the party opposing the motion. See Bradbury v. Wainwright, 718 F.2d 1538, 1543 (11th Cir.1983). And in deciding a motion for summary judgment, it is no part of the court's function to decide issues of genuine material fact but solely to determine whether there is such an issue to be tried. See Anderson v. Liberty Lobby, Inc., ___ U.S. ___, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Warrior Tombigbee Transportation Co. v. M/V Nan Fung, 695 F.2d 1194, 1196 (11th Cir.1983). A District Court "can only grant summary judgment `if everything in the record ... demonstrates that no genuine issue of material fact exists.'" Tippens v. Celotex Corp., 805 F.2d 949, 952 (11th Cir.1986) quoting Keiser v. Coliseum Properties, Inc., 614 F.2d 406, 410 (5th Cir.1980) (emphasis in original).

Since defendant did not specifically address the constitutional deprivations that were alleged in the complaint, the Court must review the law as it pertains to each of the alleged constitutional violations so as to determine whether defendant is entitled to summary judgment.

42 U.S.C. § 1983 reads in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law....

The two essential elements which a plaintiff must prove in order to state a claim under Section 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 a person 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, 68 L.Ed.2d 420 (1981).

As to the first element, plaintiff maintains, and defendant does not dispute, that defendant Fuller was acting under color of state law when he caused the death of Philip Patterson. Therefore, the first issue to be decided is whether there are genuine issues of material fact concerning the conduct of defendant Fuller as it pertains to each alleged violation of the Constitution. Specifically, the Court must determine whether something less than intentional conduct may serve as the basis of a Section 1983 action.

THE ALLEGED FIFTH AND EIGHTH AMENDMENT VIOLATIONS

As to plaintiff's Fifth Amendment claim, the Court assumes that it is plaintiff's position that Philip Patterson's substantive due process right to be free from excessive use of force by government officials was violated. However, the evidence before the Court indicates that defendant Fuller was a sheriff's deputy employed by Gordon County, Georgia. There being no allegation that a federal actor was involved in the alleged constitutional deprivations suffered by Philip Patterson, the Court holds as a matter of law that plaintiff does not have a Fifth Amendment due process claim against Fuller. Fidelity Financial Corp. v. Fed. Home Loan Bank, 792 F.2d 1432, 1435 (9th Cir.1986) (Fifth Amendment right to due process protects only against federal governmental action); Metz v. McKinley, 583 F.Supp. 683, 688 n. 4 (S.D. Ga.1984), aff'd 747 F.2d 709 (11th Cir.1984) (Fourteenth Amendment is inapplicable to conduct of federal employees.)

Plaintiff also alleges Philip Patterson suffered cruel and unusual punishment such as to violate his Eighth Amendment rights. Eighth Amendment rights attach only upon conviction. Ingraham v. Wright, 430 U.S. 651, 659-71, 97 S.Ct. 1401, 1406-12, 51 L.Ed.2d 711 (1977). It is undisputed that although Patterson had been convicted and had been in jail, at the time of his death he was not in jail; he was an escapee. Because Patterson had escaped, the Court finds the Eighth Amendment to be inapplicable. Also, "because there is no indication that the use of deadly force was intended to punish ... there is no valid claim under the Eighth Amendment." Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1, 22 (1985) (O'Conner, J., dissenting) citing Bell v. Wolfish, 441 U.S. 520, 538-539, 99 S.Ct. 1861, 1873-1874, 60 L.Ed.2d 447 (1979). Accordingly, the Court holds as a matter of law that plaintiff does not have an Eighth Amendment claim against Fuller.

THE ALLEGED FOURTEENTH AMENDMENT VIOLATION

In Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), the Supreme Court dealt with an action brought under Section 1983 by a prison inmate to recover damages for injuries he sustained when he stepped on a pillow negligently left on a stairway by the defendant sheriff's deputy. Plaintiff contended that such negligence deprived him of his liberty interest in freedom from bodily injury. Pointing out that the Due Process Clause was intended "to prevent governmental power from being `used for purposes of oppression,'", 474 U.S. at ___, 106 S.Ct. at 665, 88 L.Ed.2d at 668 quoting Murray's Lessee v. Hoboken Land & Improvement Co, 59 U.S. (18 How.) 272, 277, 15 L.Ed. 372 (1856), the Court concluded that "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property." Id., 474 U.S. at ___, 106 S.Ct....