Rachel v. City of Mobile, Civil Action No. 13–0522–WS–M.

• Decision Date: 05 June 2015
• Docket Number: Civil Action No. 13–0522–WS–M.
• Citation: 112 F.Supp.3d 1263
• Parties: Amy RACHEL, etc., Plaintiff, v. CITY OF MOBILE, ALABAMA, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

112 F.Supp.3d 1263

Amy RACHEL, etc., Plaintiff,

v.CITY OF MOBILE, ALABAMA, et al., Defendants.

Civil Action No. 13–0522–WS–M.

United States District Court, S.D. Alabama, Southern Division.

Signed June 5, 2015.

Drew Edgar Haskins, IV, Erik Stephen Heninger, Heninger Garrison Davis, LLC, Birmingham, AL, Dixie Dan Powell, Powell Injury Law, P.A., Crestview, FL, Henry Brewster, Henry Brewster, LLC, Mobile, AL, for Plaintiff.

Michael David Strasavich, Ricardo Andrew Woods, Burr & Forman LLP, Betsy Palmer Collins, Latisha Rhodes Davis, Armbrecht Jackson, LLP, Mark A. Newell, Masterson & Newell, LLC, James D. Brandyburg, The Brandyburg Firm, P.C., Thomas O. Gaillard, III, Satterwhite, Druhan, Gaillard & Tyler, LLC, Mobile, AL, for Defendant.

ORDER

WILLIAM H. STEELE, Chief Judge.

This matter is before the Court on the four remaining defendants' motions for summary judgment. (Docs. 117, 123, 128, 133). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 118–21, 124–27, 129–32, 134–37, 141, 146–48, 150, 152, 155–57, 162–64), and the motions are ripe for resolution. After careful consideration, the Court concludes that two motions for summary judgment are due to be granted in their entirety and that the other two motions are due to be granted in part and denied in part.

BACKGROUND

In the hours before dawn on May 1, 2012, defendant police officers Christopher McCann and John Jackson responded to a domestic violence call involving Gregory Rachel ("Greg"). They were later joined by a third defendant, Sergeant Jerald Ripple, and a former defendant, Lieutenant Edward Elia.¹ All four are employed by the defendant City of Mobile ("the City"). The encounter ended with Greg's death. His widow ("Amy") brings this action as administratrix of his estate.

The second amended complaint, (Doc. 115), consists of two counts.² Count III alleges that the three individual defendants violated Greg's constitutional rights by using excessive force to effect his arrest and by being deliberately indifferent to his serious medical need. Count IV is a state claim brought against all four defendants for wrongful death.

With respect to Count III, the individual defendants argue they are entitled to qualified immunity in their individual capacities.³ With respect to Count IV, they argue they are entitled to peace officer and/or state-agent immunity. The City argues that it partakes of the individual defendants' peace officer immunity and that in any event the plaintiff cannot establish its liability under Alabama Code § 11–47–190.

DISCUSSION

Summary judgment should be granted only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). The moving party may meet its burden in either of two ways: (1) by "negating an element of the non-moving party's claim"; or (2) by "point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden." Id. "Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial." Id.; accord Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir.2000) ; Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir.1992).

"When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial. [citation omitted] In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof, no reasonable jury could find for the nonmoving party." United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir.1991) (en banc) (emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993).

"If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made." Fitzpatrick, 2 F.3d at 1116 ; accord Mullins, 228 F.3d at 1313 ; Clark, 929 F.2d at 608.

"If, however, the movant carries the initial summary judgment burden ..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact." Fitzpatrick, 2 F.3d at 1116. "If the nonmoving party fails to make ‘a sufficient showing on an essential element of her case with respect to which she has the burden of proof,’ the moving party is entitled to summary judgment." Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ) (footnote omitted); see also Fed.R.Civ.P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion....").

In deciding a motion for summary judgment, "[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant...." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir.2003). This standard applies fully in the qualified immunity context. E.g., Gilmore v. Hodges, 738 F.3d 266, 272 (11th Cir.2013).

There is no burden on the Court to identify unreferenced evidence supporting a party's position.⁴ Accordingly, the Court limits its review to the exhibits, and to the specific portions of the exhibits, to which the parties have expressly cited.⁵ Likewise, "[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment," Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995), and the Court accordingly limits its review to those arguments the parties have expressly advanced.

I. Evidence.

In deciding a motion for summary judgment, "[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant...." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir.2003). Therefore, the plaintiff's version of the facts (to the extent supported by the record) controls, though that version can be supplemented by additional material cited by the defendants and not in tension with the plaintiff's version.⁶

A. Evidentiary Challenges.

The City has filed an objection to four of the plaintiff's exhibits and a motion to strike one of the four. (Docs. 158, 159).⁷ The Court, construing the objection as a motion to exclude, provided the plaintiff an opportunity to respond to both motions, which she did. (Docs. 176, 177). Because the City challenges the declaration of George Kirkham in both motions, the Court considers it only under the City's motion to strike, which contains a more detailed argument.

1. Motion to exclude.

The Court agrees that the plaintiff cannot rely on the recorded statement of Kristie Adams, (Doc. 148–2), because it is unsworn. "Unsworn statements do not meet the requirements of Fed. Rule Civ. Proc. 56(e) and cannot be considered by a district court in ruling on a summary judgment motion." Carr v. Tatangelo, 338 F.3d 1259, 1273 n. 26 (11th Cir.2003) (internal quotes omitted); accord Southern Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1248 n. 8 (11th Cir.2009). As this Court has noted, "[w]hile these cases were decided under a previous version of Rule 56, the Eleventh Circuit has continued to apply the rule under the current version." Jackson v. Lee, 2014 WL 4829552 at *2 n. 5 (S.D.Ala.2014) (citing cases). The plaintiff, who challenges the City's hearsay objection to Adams' statement but not its objection to the statement's unsworn nature, (Doc. 176 at 13), has offered the Court no reason to stray from its decision in Jackson.

The City objects to certain portions of Tiffany Brown's declaration as hearsay. Brown heard Greg say, "Don't do it again," and "Stop," and she heard one of the officers say, "Man, what is wrong with you?" Brown also said to her husband, "They are beating him!" (Doc. 148–8). Hearsay is a statement that "the declarant does not make while testifying at the current trial or hearing" and that "a party offers in evidence to prove the truth of the matter asserted in the statement." Fed.R.Evid. 801(c). A statement by a party opponent offered against that party is not hearsay. Id. Rule 801(d)(2)(A). The officers are party opponents and Brown is the declarant, so their statements cannot be hearsay. Greg's statements may be hearsay,⁸ but they fall easily within the "excited utterance" exception to hearsay, since they were made "relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused." Fed.R.Evid. 803(2).⁹ Even if they did not, they would be admissible under Rule 807.

The City also objects to Brown's statement that, "[i]n [her] opinion, the officers were hitting the man completely unnecessarily," as an opinion she is unqualified to provide. The plaintiff concedes that Brown is not an expert on the use of force but argues she may give a lay opinion. (Doc. 176 at 4–5). A lay opinion must be "helpful to clearly understanding the witness's testimony or to determining a fact in issue." Fed.R.Evid. 701(b). Brown's factual testimony is quite clear as to what she observed, including statements that she did not observe Greg fight, threaten, struggle with or oppose the officers, so her opinion is not helpful to clearly understanding her testimony. Even if the "necessity" of force is a fact in issue, Brown's factual testimony provides...