Thompson v. City of Birmingham

• Decision Date: 14 March 2014
• Docket Number: Case No. 2:12–CV–00623–TMP.
• Parties: Willie Fannett THOMPSON, Plaintiff, v. CITY OF BIRMINGHAM, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

5 F.Supp.3d 1304

Willie Fannett THOMPSON, Plaintiff,

v.CITY OF BIRMINGHAM, et al., Defendants.

Case No. 2:12–CV–00623–TMP.

United States District Court,

N.D. Alabama,

Southern Division.

Signed March 14, 2014.

Alyson M. Hood–Rains, Wendy Brooks Crew, Crew & Howell P.C., Birmingham, AL, for Plaintiff.

Javan J. Patton, Legal Aid Society of Birmingham, Frederic L. Fullerton, II, Birmingham, AL, for Defendants.

MEMORANDUM OPINION

T. MICHAEL PUTNAM, United States Magistrate Judge.

This cause is before the Court on the motion for summary judgment filed by defendants City of Birmingham (“the City”), Police Chief A.C. Roper (“Roper”), and Officer Terry Davis (“Davis”) on February 19, 2013.¹ (Doc. 34). Defendants seek dismissal of all of plaintiff Willie Fannett Thompson's claims based on immunities and other grounds. Plaintiff has filed a brief in opposition, along with exhibits, and Defendants have filed a reply to that brief. The parties have consented to the exercise of jurisdiction by the undersigned pursuant to 28 U.S.C. § 636(c) (Doc. 16); accordingly, the court enters this memorandum opinion.

SUMMARY JUDGMENT STANDARD

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party asking for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322–23, 106 S.Ct. 2548. There is no requirement, however, “that the moving party support its motion with affidavits or other similar materials negating the opponent's claim.” Id. at 323, 106 S.Ct. 2548.

Once the moving party has met his burden, Rule 56(e) “requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions of file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)). The nonmoving party need not present evidence in a form necessary for admission at trial; however, he may not merely rest on his pleadings. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Id. at 322, 106 S.Ct. 2548.

After the plaintiff has properly responded to a proper motion for summary judgment, the court must grant the motion if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The substantive law will identify which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248, 106 S.Ct. 2505. “[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249, 106 S.Ct. 2505. His guide is the same standard necessary to direct a verdict: “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251–52, 106 S.Ct. 2505; see also Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 745 n. 11, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983). However, the nonmoving party “must do more than show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249, 106 S.Ct. 2505 (citations omitted); accord Spence v. Zimmerman, 873 F.2d 256 (11th Cir.1989). Furthermore, the court must “view the evidence presented through the prism of the substantive evidentiary burden,” so there must be sufficient evidence on which the jury could reasonably find for the plaintiff. Anderson, 477 U.S. at 254, 106 S.Ct. 2505; Cottle v. Storer Communication, Inc., 849 F.2d 570, 575 (11th Cir.1988). Nevertheless, credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are the function of the jury, and therefore the evidence of the non-movant is to be believed and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. The non-movant need not be given the benefit of every inference but only of every reasonable inference. Brown v. City of Clewiston, 848 F.2d 1534, 1540 n. 12 (11th Cir.1988).

FACTS

For purposes of summary judgment, the facts viewed favorably to the non-moving plaintiff, are as follows.² The plaintiff, Willie Fannett Thompson, along with her family, cares for a piece of family-owned property on 320 Beta Street by periodically removing garbage that is dumped on the vacant lot. Defendant Terry Davis, at the relevant time, was a police officer with the Birmingham Police Department, and defendant A.C. Roper was (and still is) the Birmingham Police Chief. The third defendant is the City of Birmingham.

On July 7, 2010, Davis, who was on duty with the Birmingham Police Department and patrolling nearby, responded to a call at 320 Beta Street. Voltaire McGinnis, who lives next door to the lot owned by plaintiff and her family, had reported to the Birmingham Police Department that a woman was cleaning off her family land and putting the garbage in an alley behind McGinnis's house. Plaintiff Willie Fannett Thompson had called the City sanitation department on or around July 7, 2010, regarding the garbage pick-up schedule and informed the City that the trash would be in the alley behind the property. She was told that garbage pick-up would occur on Friday, July 16, 2010. (Doc. 57–1, pp. 21–22). While picking up garbage and debris on her lot, plaintiff was placing it in a box to be put in the alley for pick up.

Plaintiff and McGinnis had conflicts about trash in the alley on earlier occasions. On July 7, McGinnis again confronted plaintiff, telling her not to put the picked-up trash in the alley behind his house because he would have to move it from there. When plaintiff did not respond to McGinnis, he said that he would have to call the police, to which plaintiff replied that it was a good idea.

Officer Davis approached plaintiff, who standing inside the fence around her property, and informed her that she could not put garbage in the alley and instructed her to put the garbage in front of the house for the City to pick up. (Doc. 57–1, p 27). Officer Davis volunteered to help plaintiff carry the box of trash to the front curb. Plaintiff informed Davis that she always put the garbage in the alley and that the City was aware of this and would pick it up. (Doc. 57–1, p. 27). Plaintiff stated that she was unable to lift the full box by herself and that she did not want to take the box out front because it was a very hot day, she was experiencing “hot flashes,” and she was irritated with McGinnis, who had called the police about the trash. (Doc. 57–1, p. 28). At this point, Willie Lee Thompson (“Mr. Thompson”), plaintiff's father, arrived and began collecting trash off the property and putting it into the box. Davis informed Mr. Thompson that if he saw Mr. Thompson put anything in the alley Davis would issue him a $500.00 citation for “criminal littering.” (Doc. 57–2, p. 26). Plaintiff told Davis that she was “fine” with him issuing the citation and that she would dispute it in court.

Up to this point, plaintiff and her father had not put anything in the alleyway; she and her father were filling boxes she had brought from work and planned to move them to the alley when they were full. (Doc. 57–1, pp. 32–34). Before plaintiff or Mr. Thompson moved any boxes to the alley, Davis placed Mr. Thompson under arrest. (Doc. 57–1, p. 33). Mr. Thompson immediately dropped the box he was holding and put his hands behind his back, in compliance with Davis's instructions, and Davis placed Mr. Thompson in handcuffs. ( Id.) Plaintiff, who was facing away from Davis and her father, placed her hands behind her back where Davis could see them, anticipating that she also would be arrested. (Doc. 57–1, p. 36). Instead of handcuffing plaintiff, Davis ran around from behind plaintiff and began choking her and shaking her neck “relentlessly.” ( Id.) Then, Davis punched plaintiff in the face ³ (Doc. 57–1, p. 46) and put her in a “headlock,” lifted her, and slammed her to the ground.⁴ (Doc. 57–1, p. 38–39). He then lifted plaintiff and threw her to the ground a second and third time. (Doc. 57–1, p. 39). Davis rolled plaintiff over several times and pushed her face into the ground (Doc. 57–1, pp. 40–41), while placing his knee on plaintiff's back and twisting her arm behind her. (...