Shaw v. City of Selma

Decision Date15 March 2017
Docket NumberCIVIL ACTION 16–0007–WS–M
Citation241 F.Supp.3d 1253
Parties Edward SHAW, as Personal Representative of the Estate of Ananias Shaw, Plaintiff, v. CITY OF SELMA, an Alabama Municipal Corporation; Chief William Riley, in his official and individual capacities; and Officer Desmond Williams, in his Official and individual capacities, Defendants.
CourtU.S. District Court — Southern District of Alabama


This matter comes before the Court on defendants' Motion for Summary Judgment (doc. 13). The Motion has been extensively briefed and is ripe for disposition. Also pending is defendants' Motion to Strike Affidavit of Faya Rose Toure (doc. 23), as to which plaintiff did not respond within the time allotted by Civil L.R. 7(c).

I. Nature of the Case.

On the afternoon of December 4, 2013, City of Selma Police Officer Desmond Williams shot and killed Ananias Shaw, a 74-year old male wielding a hatchet, as he stood outside a residence in Selma, Alabama. Edward Shaw, acting in the capacity of personal representative for Shaw's estate,1 subsequently filed a Complaint in the Circuit Court of Dallas County, Alabama on December 4, 2015, against defendants City of Selma, Chief William Riley, and Officer Desmond Williams.2 On January 6, 2016, defendants removed the case to this District Court, with federal subject matter jurisdiction properly being invoked pursuant to the federal question provisions 28 U.S.C. § 1331, inasmuch as the face of the Complaint identifies a federal constitutional claim.3

The Complaint purports to assert no fewer than 22 causes of action against defendants, sounding in theories of wrongful death, unreasonable use of force, false arrest (Fourth Amendment violation), false imprisonment (pleaded twice), policy of inadequate training and supervision, custom of police abuse (pleaded twice), custom of deliberate indifference relating to hiring, deliberate indifference to repeated complaints (pleaded twice), civil conspiracy (pleaded twice), assault and battery, false arrest (without mention of Fourth Amendment), invasion of privacy, negligence, wantonness, negligent/careless/unskillful hiring, negligent/careless/ unskillful training or supervision, tort of outrage, and violation of Article 1, Section 1 of the Alabama Constitution. (See doc. 1–1.)

Defendants now move for summary judgment on all claims and causes of action interposed in the Complaint against all defendants.

II. The Motion to Strike.

Antecedent to addressing the Motion for Summary Judgment, the Court pauses to consider defendants' Motion to Strike (doc. 23). As part of his summary judgment response, plaintiff submitted the "Affidavit of Faya Rose Toure" (doc. 21, Exh. 7), who was plaintiff's co-counsel of record from March 2, 2016 (when she filed a Notice of Appearance (doc. 8)) until she was granted leave to withdraw on February 3, 2017. (See docs. 19, 20.)

In her Affidavit, Toure touts her membership in an organization known as the "Due Process Committee," which "investigates complaints of due process violations and suspected inequities in the criminal justice system in Selma, Alabama." (Toure Aff., at 1.)4 Toure explains that this committee "led the campaign to release the video" of the Shaw shooting, and indicates that the Selma Police Department ultimately acquiesced "[b]ecause of our intervention." (Id. ) Toure then states that she "talked to several witnesses, including Sernica Walker and other employees at Church's Chicken restaurant and Betty Ford, who actually witnessed the shooting." (Id. ) Toure relates that unidentified Church's employees told her that Shaw "was a regular customer" at the restaurant, that he "was not violent" and that he "did not have a hatchet at Church's" on the day in question. (Id. at 2.) Toure goes on to write that a witness named Betty Ford told her that Shaw did not raise the hatchet or attempt to do the officers harm. (Id. ) Toure then avers that she has experience in "addressing violent suspects with mental or emotional problems," that the Selma Police Department has requested her assistance with such matters previously, and that they never called her in the Shaw matter even though she was "available to help." (Id. ) Finally, Toure indicates that District Attorney Michael Jackson told the Due Process Committee that he was unaware of Betty Ford's observations in witnessing the shooting, and that Ford was not called to testify before the grand jury. (Id. )

The Court agrees with defendants that the Toure Affidavit suffers from several significant defects that necessitate its deletion from the summary judgment record. As an initial matter, it is uncontroverted that plaintiff never disclosed Toure as a witness, whether in his initial disclosures pursuant to Rule 26(a)(1)(A), in discovery responses, or in supplemental disclosures pursuant to Rule 26(e). Of course, Rule 26(a) mandates disclosure of "the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment." Rule 26(a)(1)(A)(i), Fed.R.Civ.P. The Rule 16(b) Scheduling Order unambiguously directed that "[t]he initial disclosures required by Fed.R.Civ.P. 26(a)(1) are ORDERED to be made by the parties not later than March 16, 2016." (Doc. 9, ¶ 4.) Yet plaintiff did not disclose Toure at that time. Similarly, Rule 26(e) calls for supplementation of Rule 26(a) disclosures "in a timely manner if the party learns that in some material respect the disclosure ... is incomplete ... and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Rule 26(e)(1)(A), Fed.R.Civ.P. Yet plaintiff never supplemented his Rule 26(a) disclosures to list Toure.

By all appearances, the first notice defendants received that Toure is or might be a witness for plaintiff was the receipt of her summary judgment affidavit on February 3, 2017. That is simply too late. Under the circumstances, the Court concludes that plaintiff failed timely to disclose Toure as a witness. That omission implicates Rule 37(c)(1), which provides that "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, ... unless the failure was substantially justified or is harmless." Rule 37(c)(1), Fed.R.Civ.P. Plaintiff has made no argument and no showing that his failure to identify Toure in a timely manner was substantially justified or harmless. Accordingly, the Court finds that striking the Toure Affidavit is an appropriate sanction pursuant to Rule 37(c)(1).5

Even if plaintiff's nondisclosure of Toure as a witness did not warrant striking her affidavit pursuant to Rule 37(c)(1) (which it does), defendants' Motion to Strike would be properly granted for two independent reasons. First, insofar as Toure's Affidavit merely parrots back what Toure says witnesses told her, such testimony does not appear capable of being presented in admissible form at trial. See, e.g., Johnson v. Mobile Infirmary Medical Center , 2015 WL 1538774, *1 (S.D. Ala. Apr. 7, 2015) ("It is well settled that exhibits are properly considered for summary judgment purposes as long as they may be reduced to admissible form at trial."); Rule 56(c)(2), Fed.R.Civ.P. ("A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence."). The summary judgment record is devoid of any ground for concluding that plaintiff could present this evidence in admissible form at trial. Certainly, it would be impermissible hearsay for plaintiff to call Toure to the stand to testify to what other people told her as substantive evidence of what actually happened that day. Nor could plaintiff call certain of these witnesses (Sernica Walker and other unnamed employees at Church's Chicken) to testify about their observations at trial, because plaintiff never disclosed Walker or those other individuals as witnesses, pursuant to Rules 26(a)(1) and 26(e). Finally, plaintiff could not call Toure in his case-in-chief to reiterate the words of Betty Ford (who is listed as a plaintiff's witness and whose video interview has been separately filed as plaintiff's Exhibit 8). Such testimony must come in, if at all, through Ford herself.

A second independent reason for striking the Toure Affidavit is that it includes substantial information that is irrelevant to the issues joined in this case for trial. For example, Toure's role in the Due Process Committee, that Committee's activities, and the Committee's discussions with the District Attorney concerning facts and testimony that were or were not known to the grand jury are simply not relevant to the claims and issues joined in the Complaint.

For all of these reasons, the Motion to Strike (doc. 23) is granted. The Affidavit of Faya Rose Toure (doc. 21, Exh. 7) is stricken from the record, and will not be considered or weighed in any manner in the adjudication of defendants' Motion for Summary Judgment.

III. Background Facts.6
A. Circumstances Leading to the Dispatch Call.

Shortly after 2:00 p.m. on December 4, 2013, Aninias Shaw attempted to enter the Church's Chicken restaurant on Broad Street in Selma, Alabama. Shaw was known to the restaurant staff as a longtime customer who "had came in there other times and cursed us out and stuff." (Lindsey Dep. (doc. 13, Exh. 6), at 5–6, 8.) To the restaurant's general manager, Ricky Austin, Shaw was known as a customer who had caused problems necessitating police intervention in the recent past. (Austin Dep. (doc. 13, Exh. 7), at 5–6, 11.)7 Most notably, just days before the incident in question, Shaw had entered the crowded lobby of the...

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    • United States
    • U.S. District Court — Southern District of Georgia
    • September 30, 2018
    ...of the second factor ... may justify entry of summary judgment for the officer on an excessive force claim." Shaw v. City of Selma, 241 F.Supp.3d 1253, 1270 (S.D. Ala. 2017) (citing Davidson, 675 F. App'x at 958-60 ), aff'd, 884 F.3d 1093 (11th Cir. 2018). Finally, in deciding this factor, ......
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    ...the plaintiff could reduce her hearsay evidence to admissible form by calling the physician at trial. See Shaw v. City of Selma, 241 F. Supp. 3d 1253, 1264 (S.D. Ala. 2017) (the plaintiff could not reduce hearsay to admissible form at trial because he failed to disclose the declarant as a ...
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