Avery v. Davis et al, No. 2:2014cv02301 - Document 23 (N.D. Ala. 2016)

Court Description: MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 10/13/2016. (PSM)
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Avery v. Davis et al Doc. 23 FILED 2016 Oct-13 PM 04:06 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION KEITH AVERY, ) ) ) ) ) ) ) ) ) Plaintiff, vs. DEMARCUS DAVIS, et al., Defendant. 2:14-cv-02301-LSC MEMORANDUM OF OPINION Before t he Court is Defendant s’ , t he Cit y of Birmingham (“ t he Cit y” ) and Birmingham Police Officer Demarcus Davis (“ Of ficer Davis” ), Mot ion for Summary Judgment . (Doc. 13.) Plaint if f, Keit h Avery (“ Avery” ), brought t his case alleging civil right s violat ions under 42 U.S.C. § 1983 and comparable st at e-law claims. For t he reasons st at ed below, Defendant s’ mot ion is due t o be grant ed in part and denied in part . I. BACKGROUND On November 24, 2012, Avery at t ended a part y at a YMCA in Birmingham where fight s broke out and Birmingham police of ficers were called t o rest ore order. (Avery Dep. at 30-31.) Aft er t he police arrived and asked t he part y guest s t o leave, Avery went across t he st reet t o t he Page 1 of 13 Dockets.Justia.com Walmart parking lot , where ot her part y at t endees were “ t earing up” t he st ore. (Id. at 33, 38.) Of ficer Davis arrived at t he YMCA aft er t he fight s had been subdued but while t he building was st ill being cleared of part iers. (Davis Dep. at 29-31.) Of ficer Davis and ot her officers t hen heard shot s ring out , and drove in t he direct ion of t he sound t owards t he back of Walmart where Avery and his f riends were locat ed. (Id. at 33-34. ) While ot her of ficers dealt wit h t he shoot ing suspect s, Of ficer Davis drove around t o t he front of t he Walmart in response t o t he st ore’ s request t o help clear out t he vandalizing t eenagers. (Id. at 35-36.) The st ore had been damaged so t horoughly t hat st af f had t o clear out all t he t eenagers and lock t he doors for t he night t o prevent furt her dest ruct ion. (Id. at 40, Avery Dep. at 38-39. ) Meanwhile, Avery had decided t o “ j ust wait ” in t he parking lot t o see if he could cat ch a ride home. (Avery Dep. at 37.) Officer Davis t hen t urned his car around and parked in front of t he Walmart wit h his blue light s flashing, direct ly f acing t wo groups of t eenagers who were gat hered in t he parking lot . (Davis Dep. 43-44, Avery Dep. at 53.) Avery was in one of t he groups, and he st at ed t hat t hough t he parking lot was poorly lit , he was st anding under a light “ so people could see [him]. ” (Avery Dep. at 40-41.) Before long, more fight ing broke out , t his t ime in Page 2 of 13 t he Walmart parking lot . (Id. at 41.) According t o Avery, a group of six or seven young men approached him and his t wo friends and a fight st art ed. (Id. at 41-43. ) Avery claims t hat t hough his friends were involved in t he fight , he was not fight ing. (Avery Dep. at 56. ) Of ficer Davis, however, claims he saw Avery “ exchanging punches” wit h one of t he ot her men. (Davis Dep. at 53-54.) The young men in t he parking lot t hen began t o run again, including Avery (Avery Dep. at 49. ) According t o Avery, t he men st art ed running because shot s rang out . However, Davis disput es t his, claiming t hat t hey st art ed running because t hey saw police officers heading t owards t hem. Avery admit s t hat he was running behind one of t he young men on t he opposing side of t he fight , and conceded t hat it could have appeared t o Officer Davis t hat he was chasing t hat young man. (Id. at 57-58.) Officer Davis claims t hat he responded t o t he sit uat ion by get t ing in bet ween Avery and t he young man t hat he appeared t o be chasing. (Id. ) Wit h Officer Davis in front of him, Avery claims t hat he cont inued t o run t oward t he ot her individual. According t o Avery, he did not see Officer Davis and had t oo much adrenaline t o st op. (Id. at 59.) Of ficer Davis alleges t hat Avery looked him in t he eye and squared up int o an of fensive posit ion. (Davis Dep. at 54. ) Regardless, it is undisput ed t hat Avery did Page 3 of 13 not st op running unt il Officer Davis punched him in t he j aw. (Avery Dep. at 60, Davis Dep. at 54. ) Avery fell t o t he ground and briefly lost consciousness as a result of t he punch, at which point Officer Davis at t empt ed t o arrest him. (Avery Dep. at 60.) When Avery regained consciousness, he t ried t o get back up, but was quickly slammed back ont o t he ground by Of ficer Davis, who placed a knee on his back t o keep him down and while he handcuffed him. (Id. at 60-63.) Officer Davis arrest ed Avery for an af fray, and t hereaft er t ransport ed him t o t he Birmingham Police Depart ment East Precinct . (Id. at 70-71, Davis Dep. at Ex. 3. ) According t o Avery, aft er he was arrest ed, he t old Of ficer Davis t hat he had a broken j aw, but Officer Davis j ust responded by “ cussing [him] out .” (Avery Dep. at 69.) Aft er arriving at t he precinct , Officer Davis t ook Avery t o Cooper Green Hospit al for a medical examinat ion. (Id. at 76.) However, Avery refused care and was t hereaf t er placed in t he j uvenile det ent ion. (Id. at 78.) Avery lat er had t o have surgery t o repair his broken j aw and claims t hat he st ill suffers from “ aches, lock j aw,” problems sleeping, and an inabilit y t o chew food for long periods of t ime. (Id. at 104-05, 110.) II. STANDARD OF REVIEW Summary j udgment is appropriat e “ if t he movant shows t hat t here Page 4 of 13 is no genuine disput e as t o any mat erial f act and t he movant is ent it led t o j udgment as a mat t er of law.” Fed. R. Civ. P. 56(a). A f act is “ mat erial” if it “ might af fect t he out come of t he suit under t he governing law.” Anderson v. Li bert y Lobby, Inc., 477 U.S. 242, 248 (1986). There is a “ genuine disput e” as t o a mat erial fact “ if t he evidence is such t hat a reasonable j ury could ret urn a verdict for t he nonmoving part y. ” Anderson, 477 U.S. at 248. The t rial j udge should not weigh t he evidence but must simply det ermine whet her t here are any genuine issues t hat should be resolved at t rial. Id. at 249. In considering a mot ion for summary j udgment , t rial court s must give deference t o t he non moving part y by “ considering all of t he evidence and t he inferences it may yield in t he light most f avorable t o t he nonmoving part y. ” McGee v. Sent i nel Of f ender Servs., LLC, 719 F.3d 1236, 1242 (11t h Cir. 2013) (cit at ions omit t ed). In making a mot ion f or summary j udgment , “ t he moving part y has t he burden of eit her negat ing an essent ial element of t he nonmoving part y’ s case or showing t hat t here is no evidence t o prove a f act necessary t o t he nonmoving part y’ s case. ” Id. Alt hough t he t rial court s must use caut ion when grant ing mot ions for summary j udgment , “ [ s]ummary j udgment procedure is properly regarded not as a disf avored procedural short cut , but rat her as an int egral part of Page 5 of 13 t he Federal Rules as a whole. ” Cel ot ex Corp. v. Cat ret t , 477 U.S. 317, 327 (1986). III. DISCUSSION Avery brought t his act ion under § 1983 against Officer Davis and t he Cit y, assert ing t hat his Fourt h Amendment right t o be free from unreasonable searches and seizures was violat ed by Officer Davis’ s act ions, which he alleges amount t o false imprisonment , f alse arrest , malicious prosecut ion, harassment , and assault and bat t ery. He also brought ident ical Alabama st at e laws claims against Of ficer Davis and t he Cit y. 1 The Court recognizes t hat t he defendant s filed a Mot ion t o St rike Plaint if f’ s Brief (Doc. 20) based on Plaint iff’ s f ailure t o list st at ement s of fact in separat ely numbered paragraphs. Plaint iff has indeed f ailed t o comply wit h t he Uniform Init ial Order’ s Requirement s f or st at ement s of fact . However, t he Court will deny Defendant ’ s Mot ion t o St rike, because st riking t he brief, while t echnically permissible, would not be in t he int erest s of j ust ice. Therefore, t he Court will address t he merit s of t he case as present ed in t he briefs. A. Claims against Of ficer Davis 1 Avery never specifies— his complaint (Doc. 1) nor his “ Brief in Denial and Response in t o Defendant s’ Mot ion for Summary Judgment ” (Docs. 14 & 15)— which Alabama st at e laws he is bringing his claims under. Therefore, t he Court will only analyze st at e law immunit y, which has been fully briefed by t he part ies. Page 6 of 13 i. § 1983 and Qualified Immunit y Qualified immunit y “ of fers complet e prot ect ion for government officials sued in t heir individual capacit ies as long as t heir conduct violat es no clearly est ablished st at ut ory or const it ut ional right s of which a reasonable person would have known.” Hoyt v. Cooks, 672 F. 3d 972, 977 (11t h Cir. 2012). In order for qualified immunit y t o be applicable, however, Of ficer Davis must est ablish t hat he was act ing wit hin t he scope of his discret ionary aut horit y, which he can do by showing t hat his act s “ are of t he t ype t hat fell wit hin [his] j ob responsibilit ies.” Hol l oman ex rel . Hol l oman v. Harl and, 370 F.3d 1252, 1265 (11t h Cir. 2004). Police officers clearly act wit hin t heir discret ionary aut horit y when t hey arrest someone, and Avery did not disput e t hat Of ficer Davis was act ing wit hin his discret ionary aut horit y leading up t o Avery being punched and t hen arrest ed. Lee v. Ferraro, 284 F. 3d 1188, 1194 (11t h Cir. 2002). Therefore, t he burden shift s t o Avery t o overcome t he defense of qualified immunit y. Bat es v. Harvey, 518 F. 3d 1233, 1242 (11t h Cir. 2008). In order t o do so, Avery must show t hat (1) t he officer’ s conduct violat ed a const it ut ional right and (2) t he allegedly violat ed right was clearly est ablished. Case v. Esl inger, 555 F. 3d 1317, 1326 (11t h Cir. 2009). Hre, Avery claims t hat Of ficer Davis violat ed his const it ut ional Page 7 of 13 right s by using excessive f orce in t he course of t he arrest . These claims are based on allegat ions t hat Officer Davis (1) hit Avery, (2) t hrew Avery on t he ground, and (3) placed his knee on Avery’ s back and handcuf fed him. In excessive force cases, “ qualified immunit y applies unless applicat ion of t he st andard would inevit ably lead every reasonable officer in [t he posit ion of t he defendant officer] t o conclude t he f orce was unlawful. ” Nol in v. Isbel l , 207 F.3d 1253, 1255 (11t h Cir. 2000) (quot ing Post v. Cit y of Fort Lauderdal e, 7 F. 3d 1552, 1550 (11t h Cir. 1993), modif i ed by 14 F. 3d 583 (11t h Cir. 1994)). This det erminat ion “ t urns on a number of f act ors” and “ must be j udged on a case-by-case basis. ” Gol d v. Cit y of Miami, 121 F. 3d 1442, 1446 (11t h Cir. 1997) (quot ing Post , 7 F. 3d at 1559). This abundance of case law makes it clear t hat t he right t o be free from excessive force during an arrest is clearly est ablished. Here, Avery conceded t hat Officer Davis could have been under t he impression t hat Avery was chasing t he ot her young man when he st epped in bet ween t hem. (Avery Dep. at 57-58.) However, Avery and Officer Davis disput e what happened next . According t o Avery, he never not iced Officer Davis in front of him, and t herefore did not st op running unt il he felt t he hit . Conversely, Of ficer Davis claims t hat “ Mr. Avery got in an Page 8 of 13 offensive posit ion, squared up against me.” (Davis Dep. at 54.) Officer Davis also disput es Avery’ s assert ion t hat he never saw him, claiming t hat Avery looked him in t he eyes. (Davis Dep. at 62. ) Officer Davis does not cont end t hat he called out t o Avery t o st op or anyt hing else before st riking him in t he j aw. Taking t he f act s in t he light most favorable t o t he nonmoving part y, a j ury could find t hat every reasonable officer in Officer Davis’ s posit ion would conclude t hat t he f orce was unlawful and t hat , t herefore, Officer Davis used excessive f orce when he hit Avery. Therefore, t here is a disput e of mat erial fact about whet her or not Officer Davis used excessive force in arrest ing Avery. Therefore, summary j udgment for Avery’ s § 1983 claims against Office Davis is due t o be denied. ii. St at e Law Claims Federal qualified immunit y only prot ect s individuals from suit s based on federal right s and t herefore does not prot ect Officer Davis from Avery’ s st at e-law claims. Harbert Int ’ l , Inc. v. James, 157 F.3d 1271, 1286 (11t h Cir. 1998). However, Of ficer Davis assert s t hat he is prot ect ed by Alabama st at e-agent immunit y. Under Alabama law, police of ficers “ have immunit y from t ort liabilit y arising out of [t heir] conduct in performance of any discret ionary funct ion wit hin t he line and scope of Page 9 of 13 [t heir] law enforcement dut ies. ” Ala. Code § 6-5-338 (1975). A police officer is immune from liabilit y when “ t he conduct made t he basis of t he claim against t he agent is based upon t he agent ’ s . . . exercising j udgment in t he enforcement of t he criminal laws of t he St at e, including, but not limit ed t o, law-enforcement officers’ arrest ing or at t empt ing t o arrest persons.” Ex part e Kennedy, 992 So. 2d 1276, 1280 (Ala. 2008). Furt her, Alabama law also allows a police officer t o “ us[e] t hat degree of physical f orce which he reasonably believes t o be necessary” when effect uat ing an arrest . Ala. Code, § 13A-3-27 (1975). A police officer “ may be held liable only if more force is used t han is necessary t o effect uat e t he arrest . ” Frankl in v. Cit y of Hunt svil l e, 670 So.2d 848, 852 (Ala. 1995). As discussed above, if t he fact s are t aken in t he light most favorable t o t he nonmoving part y, t here is no indicat ion t hat hit t ing Avery was necessary in t he circumst ances. Of ficer Davis does not claim t hat he asked Avery t o st op before hit t ing him, and Avery denies t hat he got int o a fight ing posit ion. Therefore, a j ury could find t hat Officer Davis used more f orce t han necessary in rest raining Avery and ef fect uat ing t he arrest . Summary j udgment on Avery’ s st at e law claims against Of ficer Davis is due t o be denied. B. Claims against t he Cit y Page 10 of 13 i. § 1983 Avery’ s “ Brief in Denial and Response t o Defendant s’ Mot ion f or Summary Judgment ” only offers argument s and evidence as t o Officer Davis’ s liabilit y. (Doc. 14 & 15.) While t he brief ment ions t he Cit y repeat edly, all of t he argument s cont ained in t he brief are about qualified immunit y for government employees sued in t heir individual capacit y. The Cit y can be sued under § 1983 if t he “ act ion t hat is alleged t o be unconst it ut ional implement s or execut es a policy st at ement , ordinance, regulat ion or decision officially adopt ed and promulgat ed by [t he Cit y’ s] officers. ” Monel l v. Dep’ t of Soc. Servs. of N. Y., 436 U.S. 658, 690 (1978). Alt ernat ively, t he Cit y can be sued if t he pract ice is pursuant t o a government “ cust om” , even if t he cust om has not received official approval. Id. Here, Avery has f ailed t o allege t hat Officer Davis act ed according t o an of ficial policy of t he cit y or even an unofficial “ cust om” of police officers. He has simply cont est ed t he propriet y of grant ing qualified immunit y t o Of ficer Davis for his individual act ions. Because “ grounds alleged in t he complaint but not relied upon in summary j udgment are deemed abandoned,” Avery’ s claims under § 1983 against t he Cit y are deemed abandoned. Resol ut ion Trust Corp. v. Page 11 of 13 Dunmar Corp., 43 F.3d 587, 599 (11t h Cir. 1995). Summary j udgment for t hese claims is due t o be grant ed. ii. St at e-Law Claims Avery does not ment ion t he Cit y in his sect ion on st at e-law claims in his brief. He simply makes argument s about Officer Davis’ s liabilit y for st at e-law claims. Avery’ s st at e-law claims against t he Cit y are t herefore deemed abandoned, and summary j udgment f or t he Cit y on Avery’ s st at e law claims is due t o be grant ed. See i d. IV. CONCLUSION For t he reasons st at ed above, Def endant s’ mot ion f or summary j udgment is due t o be GRANTED in part and DENIED in part . Summary j udgment as t o Avery’ s claims against Of ficer Davis is denied. Summary j udgment in favor of t he Cit y of Birmingham as t o Avery’ s claims against t he Cit y is grant ed. A separat e order consist ent wit h t his opinion will be ent ered. Furt her, Defendant ’ s mot ion t o St rike Plaint iff’ s Brief (Doc. 20) is DENIED. Page 12 of 13 DONE and ORDERED t his 13t h day of Oct ober 2016. _____________________________ L. Scot t Coogler Unit ed St at es Dist rict Judge 186291 Page 13 of 13