Underwood v. City of Bessemer, Case No.: 2:15-cv-01585-JHE

• Decision Date: 28 September 2018
• Docket Number: Case No.: 2:15-cv-01585-JHE
• Parties: MARCUS UNDERWOOD, Plaintiff, v. THE CITY OF BESSEMER, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

MARCUS UNDERWOOD, Plaintiff, v. THE CITY OF BESSEMER, et al., Defendants.

Case No.: 2:15-cv-01585-JHE

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

September 28, 2018

MEMORANDUM OPINION¹

Plaintiff Marcus Underwood ("Underwood" or "Plaintiff") brings this action pursuant to 42 U.S.C. § 1983 against Defendants the City of Bessemer ("Bessemer"); Bessemer Chief of Police Nathaniel Rutledge ("Chief Rutledge"), in both his individual and official capacity; Bessemer Police Department Officer Daniel Cecil Partridge ("Officer Partridge"), in both his individual and official capacity; and Bessemer Police Officer Christopher Asarisi ("Officer Asarisi"), in both his individual and official capacity (collectively, the "Defendants"). Defendants have moved for summary judgment on all of Underwood's claims, (doc. 43), and Underwood has moved for partial summary judgment, (doc. 45). Additionally, the parties have each moved to exclude evidence, (docs. 31 & 39), and Defendants have moved to strike the evidence submitted by Underwood that is the subject of their evidentiary motion, (doc. 51). Finally, Defendants have moved for sanctions against Underwood. (Doc. 50). Each of those motions is fully briefed andripe for review. (Docs. 36, 42, 53-1, 54, 55, 56, 57, 58, 59, 64 & 65).² For the reasons stated below, Defendants' motion for summary judgment is GRANTED, and Underwood's motion for summary judgment is DENIED.³

I. Standard of Review

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." "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." Celotex Corp. v. Catrett, 447 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to "go beyond the pleadings" to establish that there is a "genuine issue for trial." Id. at 324. (citation and internal quotation marks omitted). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The Court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual disputes will be resolved in Plaintiff's favor when sufficient competent evidence supports Plaintiff's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party's favor when that party's version of the events is supported by insufficient evidence). However, "mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion." Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, "[a] mere 'scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

II. Evidentiary Objections

Both parties have presented motions to strike summary judgment evidence, as well as other challenges to opposing evidence. (Docs. 31, 39 & 51). With the December 1, 2010 rules change to Rule 56 of the Federal Rules of Civil Procedure, motions to strike submitted on summary judgment are no longer appropriate. Revised Rule 56(c)(2) provides that "[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 Advisory Committee Notes specify as follows:

Subdivision (c)(2) provides that a party may object that material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. The objection functions much as an objection at trial, adjusted for the pretrialsetting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the summary-judgment stage does not forfeit the right to challenge admissibility at trial.

FED. R. CIV. P. 56, Adv. Comm. Notes, "Subdivision (c)" (2010 Amendments). "Before this amendment, parties properly challenged evidence used in a summary judgment motion by filing a motion to strike. The plain meaning of these provisions shows that objecting to the admissibility of evidence supporting a summary judgment motion is now a part of summary judgment procedure, rather than a separate motion to be handled preliminarily." Campbell v. Shinseki, 546 F. App'x 874, 879 (11th Cir. 2013).

A. Lawdon H. Yates

Defendants seek to exclude testimony or evidence from Underwood's expert Lawdon H. Yates. (Doc. 31). Defendants state Underwood failed to disclose Yates's report by the scheduling order's deadline for disclosure of expert reports. (Id.). Underwood argues Yates was not timely disclosed because he did not intend to use Yates as a testifying expert, but rather as a consulting expert, and in any event Defendants have not been harmed by the late disclosure because he "does not intend to use Yates's report in support [of] or opposition to any dispositive motions due to be filed" in this case. (Doc. 36). Contrary to this representation, though, Underwood's initially-submitted summary judgment brief contains a paragraph relying on Yates's conclusions, (doc. 46 at 11-12, ¶ 28), and his summary judgment evidence contains Yates's expert report, (doc. 47-10).

Defendants have moved to strike the paragraph and the report. (Doc. 51). Underwood concedes the motion is well-taken; therefore, he has withdrawn the exhibit and submitted a corrected summary judgment brief, omitting the paragraph that references Yates. (Docs. 53 & 53-1). Consequently, Defendants' motion to strike, (doc. 51), is DENIED AS MOOT. The remainder of Defendants' evidentiary objections, as well as Defendants' motion for sanctions, are not relevant to the resolution of the motions for summary judgment, and the undersigned declines to address them.

B. Christopher Lawrence

Underwood objects to the report of Defendants' use of force expert, Christopher Lawrence, on the following grounds: (1) Lawrence's report is founded on the version of events relayed by Officers Asarisi and Partridge, rather than the totality of the circumstances; (2) Lawrence is unqualified to offer opinion evidence on general police procedures, given Bessemer's official policy; (3) Lawrence's opinions on the turning radius of the vehicle driven by Underwood at the time of the incident at issue fail to account for variables at the scene; (4) a study relied upon by Lawrence for his opinion on police officers' reduced mobility in full gear fails to account for variables at the scene; (5) Lawrence's opinion on "looming" fails to account for variables at the scene; (6) Lawrence's opinions on officers' focus of attention does not account for the reliability of the studies that Lawrence relies upon; (7) Lawrence's opinions on stress response unreasonably credits the accounts of Officers Asarisi and Partridge over other witnesses; and (8) Lawrence's opinions on reaction times have no bearing on the facts at issue in this case and are based on a computer program whose reliability he fails to discuss. (Doc. 39). Because none of the opinions Underwood challenges are necessary to resolve the motions for summary judgment, the undersigned declines to address the evidentiary objection and will consider the motions for summary judgment without reference to Lawrence's report.

III. Summary Judgment Facts⁴

Incident

On June 14, 2014, around midnight, Elizabeth "Lee" Harrington ("Harrington"), a resident of Holbrook Avenue in Bessemer, Alabama, was awakened from her sleep by her partner, Dana Darby ("Darby"), who told her she had heard people arguing loudly across the street and "two pops." (Doc. 37-3 at 4 (14:1-2), 6 (23:18-24:3)). Harrington called 911, and the following exchange took place:

DISPATCHER: Bessemer 911, 2 state your emergency.

SPEAKER 1:⁵ Yes, there's been a domestic on Holbrook and -- between Holbrook and 17th and 16th Street, gunshots have been fired. They're arguing and --

FEMALE DISPATCHER: Anybody hurt?

SPEAKER 1: I don't know, I don't know. I don't want to go outside and see, in other words. We're just hearing arguments and just yelling and gunshots.

FEMALE DISPATCHER: Is it between a male and a female?

SPEAKER 1: I don't know, I'm not going outside to see.

FEMALE DISPATCHER: And you - you hear the domestic going on?

SPEAKER 1: Right. We hear yelling, yelling and then two gunshots.

FEMALE DISPATCHER: Bessemer is coming. I made a call, that's where the caller lives. You said 16th and 17th Holbrook Avenue right?

SPEAKER 1: Right, in between, yeah. I can still hear the yelling, okay, so.

FEMALE DISPATCHER: Is it male and female, or do you hear two males or --

SPEAKER 1: I can't -- I can't tell.

FEMALE DISPATCHER: I'm going to stay on the phone with you until they get there. Just let me know if you hear any more shots.

SPEAKER 1: It sounds like a female and a male.

(Doc. 37-1 at Track 1;⁶ doc. 37-2 at 2).

Bessemer Police Department ("...