Watson v. Mayor & Aldermen of City of Savannah
| Decision Date | 30 October 1996 |
| Docket Number | No. A96A1274,A96A1274 |
| Citation | 477 S.E.2d 667,223 Ga.App. 399 |
| Parties | , 96 FCDR 3914 WATSON v. MAYOR & ALDERMEN OF the CITY OF SAVANNAH et al. |
| Court | Georgia Court of Appeals |
Forbes & Bowman, Morton G. Forbes, Johnny A. Foster, Savannah, for appellant.
Karsman, Brooks & Callaway, R. Krane Riddle, Savannah, Lee, Black, Scheer & Hart, Steven E. Scheer, Savannah, Wiseman, Blackburn & Futrell, James B. Blackburn, Abda L. Quillian, Savannah, Oliver, Maner & Gray, Patrick T. O'Connor, Savannah, for appellees.
Brian Watson appeals from the trial court's order granting summary judgment to the Mayor & Aldermen of Savannah ("City") on Watson's claim for injuries received in a dispute with an off-duty policeman. We affirm the judgment of the trial court.
This case arose out of an altercation between Watson and Nicholas Kenny, a corporal with the Savannah Police Department. Watson and some friends were in Malone's, a Savannah nightclub, late one Friday night when Kenny came into the club. At the time, Kenny was moonlighting as a security officer in a neighboring nightclub when he noticed all the lights inside Malone's had come on earlier than usual prior to closing time. Kenny thought there might be something wrong and came into the club to see if his fellow officers, also moonlighting as security workers, needed help. After Kenny arrived at Malone's and went inside, Watson called "hello Bucky" to Kenny and waved at him. The term "Bucky" apparently was offensive to Kenny, who then told Watson he was messing with the wrong person, or words to that effect. According to Watson, he said "okay Bucky" and turned away, at which point Kenny grabbed him around the throat and swept his feet out from under him.
Watson initially filed a complaint against Kenny for assault and battery and later amended his complaint to add a 42 USC § 1983 claim against Kenny and the City. The City moved for summary judgment contending that 1) Kenny was not acting under color of law when he "swept" Watson to the ground and 2) there was insufficient evidence that Kenny was acting in conformity with any City policy at the time of the altercation.
The trial court granted the City's motion, finding Kenny was acting under color of state law; however, there was not sufficient evidence that the injury was caused by any City policy or custom. Accordingly, the § 1983 claims against the City and against Kenny in his official capacity were dismissed. The § 1983 claim against Kenny individually and the state law claims are still pending.
(Emphasis omitted.) Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).
After the incident in the bar, Watson filed an Internal Affairs complaint against Kenny. Captain Tolbert of Internal Affairs was assigned to investigate Watson's complaint, and she interviewed Watson and Kenny and witnesses to the incident. Kenny was charged with conduct unbecoming an officer and failure to file a use of force report. After Tolbert completed her investigation, a board, consisting of four majors from the Savannah Police Department and the chief of police, held a hearing on the complaint. The board vote was 4-0, but there is no indication as to the verdict. Under "Chief's Action," the record shows the chief ordered the case closed as exonerated on the unbecoming conduct charge and sustained on the charge of failure to file a "use of force" form.
Watson also argues there was another incident involving Officer Kenny which was not handled in accordance with required procedures. In that case, Derek Binnicker, a soldier at Fort Stewart, filed a complaint in which he claimed that a police officer held him down on the ground in an alley behind Congress Street Station one night, while another police officer struck him on the ankles several times with a nightstick. The complaint was reviewed by Ralph Bashlor, a commander in the Internal Affairs Division. The investigation synopsis stated there was no evidence to support the allegation; that Binnicker promised to return with copies of his medical exam but had not done so and repeated attempts to contact him were unavailing. The Internal Affairs finding was "Not Sustained," and the chief of police ordered the case closed as not sustained.
In Binnicker's affidavit, submitted by Watson in opposition to the City's motion for summary judgment, Binnicker said that he picked Officer Kenny's picture out of a card file as the officer who hit him on the knees and ankles with the billy club. Binnicker stated that he was told by the captain that since there were no other witnesses to the event, Binnicker did not have a case and the best thing for him to do was not pursue it. Binnicker said he followed the...
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