White v. City of Birmingham, Case No.: 2:13-cv-00099-KOB (LEAD CASE)

• Decision Date: 27 March 2015
• Docket Number: Case No.: 2:13-cv-01006-KOB,Case No.: 2:13-cv-00099-KOB (LEAD CASE)
• Parties: JUSTIN A. WHITE, Plaintiff, v. CITY OF BIRMINGHAM, ALABAMA, et al., Defendants. LATISHA WILLIAMS, Plaintiff, v. CITY OF BIRMINGHAM, ALABAMA, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

JUSTIN A. WHITE, Plaintiff,
v.
CITY OF BIRMINGHAM, ALABAMA, et al., Defendants.

LATISHA WILLIAMS, Plaintiff,
v.
CITY OF BIRMINGHAM, ALABAMA, et al., Defendants.

Case No.: 2:13-cv-00099-KOB (LEAD CASE)
Case No.: 2:13-cv-01006-KOB

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

March 27, 2015

MEMORANDUM OPINION

This § 1983 case comes before the court, in Plaintiffs Justin White and Latisha Williams' consolidated cases, on Defendants City of Birmingham, Alabama, Mayor William A. Bell, Officer Herman Harris, Jr., and Officer Eric Smith's "Motion for Summary Judgment and Supporting Evidence," (Doc. 34); White and Williams' "Motion to Strike Defendants' Exhibits Five (5) & Six (6)," (Doc. 43); White and Williams' "Motion for Judicial Notice," (Doc. 44); and the Defendants' "Motion to Strike," (Doc. 54).¹

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For the reasons discussed below, the court GRANTS the Defendants' motion for summary judgment, (Doc. 34); GRANTS in part and DENIES in part White and Williams' motion for judicial notice, (Doc. 44); DENIES White and Williams' motion to strike, (Doc. 43); and DENIES the Defendants' motion to strike, (Doc. 54).

In general, the undisputed facts show that on November 30, 2012, plaintiff Williams and Deandre Major were passengers in a vehicle driven by plaintiff White. An occupant of White's vehicle fired a weapon at an unmarked Birmingham Police Department vehicle driven by defendant BPD Officer Harris with defendant BPD Officer Smith and defendant Birmingham Mayor Bell as passengers. Officer Harris followed White's vehicle onto Interstate 59 while Officer Smith radioed for backup. As White raced down Interstate 59, his steering wheel locked up and he crashed. Officers Harris and Smith stopped near White's vehicle and attempted to apprehend the occupants of White's vehicle, who Officers Harris and Smith thought to be armed and willing to shoot. Officers Harris and Smith fired their weapons a total of eleven times at the vehicle hitting White twice and Williams once.

Once Officers Harris and Smith regained control of the situation and backup arrived, ambulances transported White and Williams to the University of Alabama Birmingham medical center. White received treatment at UAB and remained at UAB for two weeks and a few days. Williams received treatment at UAB and UAB released her after two days. During part of their stays at UAB, BPD restrained White and Williams with handcuffs and posted BPD officers near their rooms.

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White and Williams have now sued pursuant to 42 U.S.C. § 1983 and Alabama state law, arguing that the City, Mayor Bell and Officers Harris and Smith violated their constitutional rights by using excessive force, and violated their rights under state law by assaulting, battering, and falsely imprisoning them. The Defendants argue that they are entitled to summary judgment on all of White and Williams' claims. The court agrees with the Defendants because the Defendants are immune from suit on all of White and Williams' claims.

Before addressing the Defendants' summary judgment motion, however, the court must rule on several motions to determine the record before it for summary judgment purposes.

I. Motion for Judicial Notice

White and Williams request that the court take judicial notice of the following facts pursuant to Federal Rule of Evidence 201:

1. A Consent Decree filed in McGill v. City of Birmingham, 74-G-0692, on June 29, 1984, (Doc. 44-1);
2. A 2013 Motion filed by the City of Birmingham seeking relief from the requirements imposed by the Consent Decree in McGill, (Doc. 44-2);
3. An Order modifying in part the Consent Decree in McGill, (not attached);
4. That the calendar date of March 14, 2014 occurred after the date of November 20, 2012;
5. That the calendar date of December 1, 2012 occurred before the calendar date of March 14, 2014;
6. That the calendar date of December 2, 2012 occurred prior to the calendar date of March 14, 2014;
7. That the calendar date of December 30, 2012 occurred before the calendar date of March 14, 2014;
8. That a living person born on March 8, 1994 was eighteen years of age on November 30, 2012;
9. That the article Birmingham Mayor William Bell Said He Was Not The Target Of A Wild Interstate Shooting Friday Night, written by Carol Robinson, was posted to the website of Alabama Media Group on December 3, 2012, (Doc. 44-3);
10. That the Birmingham News article, Video Of Police Beating Prompts Birmingham Mayor Bell To Calls For More Training, written by Carol

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Robinson, Joseph D. Bryant, and Jeremy Grey was published on March 31, 2011, at 10:55 p.m. and updated on April 1, 2011, at 6:45 a.m., (Doc. 44-4);
11. That the Birmingham News article, Birmingham City Council Summons Police Chief A.C. Roper For Hearing On Allegations About Department's Use Of Force, written by Joseph D. Bryant, was published on April 20, 2011, at 7:30 a.m., (Doc. 44-5);
12. That the Birmingham News article, Birmingham Council President Wants Police Chief To Report On Excessive-Force Complaints Against Department, written by Joseph D. Bryant, was published on April 19, 2011, at 11:45 a.m. and updated on April 19, 2011, at 6:37 p.m., (Doc. 44-6); and
13. Any case filed in the United States District Court For The Northern District of Alabama, Southern Division.

(Doc. 44) (emphasis added). Generally, these items can be grouped into court documents (items 1, 2, 3, and 13), logical facts (items 4, 5, 6, 7, and 8), and news articles (items 9, 10, 11, and 12).

The court may take judicial notice when an adjudicative fact "is not subject to reasonable dispute" because the fact is either (1) "generally known within the trial court's jurisdiction;" or (2) "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201; see United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (finding only indisputable facts may be judicially noticed).

A. Court Documents

White and Williams request the court take judicial notice of certain court documents in items 1, 2, 3, and 13. The Defendants do not object. While the court "may not infer the truth of all the facts in the documents contained in [its own] records, the Court may take judicial notice of those records." In re Steeley, 243 B.R. 421, 427 (Bankr. N.D. Ala. 1999); see Ackermann v. United States, 178 F.2d 983, 985 (5th Cir. 1949).² Therefore, the court GRANTS the motion as

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to the fact that the court documents exist and DENIES the motion as to the factual accuracy of the content of court documents.

B. Logical Facts

White and Williams request the court take judicial notice of certain logical facts concerning dates and ages in items 4, 5, 6, 7, and 8. The Defendants do not object. Therefore, the court GRANTS the motion as to these logical facts.

C. News Articles

White and Williams request the court take judicial notice that the news articles in items 9, 10, 11, and 12 were published. The Defendants argue that these items do not meet the requirements for judicial notice in the Federal Rules of Evidence.

The court GRANTS the motion as to the fact that the news articles were published. However, the court DENIES the motion as to the factual accuracy of the news articles because the "facts" printed in the news articles are still subject to reasonable dispute. See Shahar v. Bowers, 120 F.3d 211, 214, nt. 5 (11th Cir. 1997) ("[Movant] has shown us no case - and we have found none - where a federal court of appeals took judicial notice of the unofficial conduct of one person based upon newspaper accounts . . . about that conduct."). Additionally, the court DENIES the motion as to White and Williams' characterization of the news articles. See In re Towne Servs., Inc. Sec. Litig., 184 F. Supp. 2d 1308, 1318 (N.D. Ga. 2001) (finding court may not take judicial notice of "conclusory characterizations of such statements in the plaintiffs' complaint").

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D. Summary

In summary, the court GRANTS in part and DENIES in part White and Williams' motion for judicial notice.

II. White and Williams' Motion to Strike

White and Williams ask the court to strike exhibits five and six to the Defendants' motion for summary judgment. Exhibit five is Williams' statement to BPD Investigator Jeff Steele on December 1, 2012 at 10:31 a.m. at UAB describing the events of November 30, 2012 leading up to and after White and Williams' encounter with BPD. (Doc. 36-5). Exhibit six is a declaration by Investigator Steele describing the procedures he took during and after his interview with Williams. (Doc. 36-6).

Whether to grant a motion to strike is an evidentiary ruling within the court's discretion. See United States v. Stout, 667 F.2d 1347, 1353 (11th Cir. 1982) ("A trial court's ruling as to the materiality, relevancy or competency of testimony or exhibits will ordinarily not warrant reversal unless constituting an abuse of discretion." (internal citations omitted)). For the reasons discussed below, the court DENIES White and Williams' motion to strike.

A. Competency

White and Williams first argue that Williams' statement should be excluded because she was a minor under the influence of medication when she gave the statement to Investigator Steele. First, whether Williams was a minor when she made her statement is irrelevant. "Every person is competent to be a witness unless [the Federal Rules of Evidence] provide otherwise." Fed. R. Evid. 601; see United States v. Perez, 526 F.2d 859, 865 (5th Cir. 1976) ("The ultimate test of competence of a young child is whether [she] has the requisite intelligence and mental

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capacity to understand, recall and narrate [her] impressions of an occurrence.").

Second, whether Williams was medicated does not render her incompetent. Williams argues she was under the influence of pain medication when Investigator Steele interviewed her on December 1, 2012 at 10:31 a.m. and some medical records indicate that UAB prescribed her medication as early as...