Sharese Wells v. Cullen Talton, et al

Filing

Opinion issued by court as to Appellant Sharese M. Wells. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-13401

Date Filed: 05/30/2017

Page: 1 of 18

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-13401
________________________
D.C. Docket No. 5:13-cv-00024-CAR

SHARESE M. WELLS,
Administrator for the Estate deceased, Robert K. Chambers,
Plaintiff - Appellant,
versus
CULLEN TALTON,
in his official capacity as Sheriff of Houston County,
STEVEN GLIDDEN,
in his individual capacity,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(May 30, 2017)
Before ED CARNES, Chief Judge, ROSENBAUM and DUBINA, Circuit Judges.
PER CURIAM:

Case: 16-13401

Date Filed: 05/30/2017

Page: 2 of 18

Appellant, Sharese M. Wells (“Wells”), as administrator for the Estate of
Robert K. Chambers, (“Chambers” or “decedent”), appeals the district court’s
order granting Appellees, Houston County Sheriff Cullen Talton (“Sheriff Talton”)
and Houston County Deputy Sheriff Steven Glidden (“Deputy Glidden”), summary
judgment on Wells’ civil rights action brought pursuant to 42 U.S.C. § 1983,
alleging that Deputy Glidden’s use of deadly force violated the decedent’s Fourth
and Fourteenth Amendment rights. The complaint also alleged a cause of action
for wrongful death pursuant to Georgia state law. The district court granted
summary judgment to Deputy Glidden, finding that he was entitled to qualified
immunity on the § 1983 claim and to official immunity on the state law wrongful
death claim. The district court found no merit in the claims against Sheriff Talton.1
The district court also granted in part and denied in part Wells’ Federal Rule of
Civil Procedure 59(e) and Rule 60(b) motions. After reading the briefs, reviewing
the record, and having the benefit of oral argument, we affirm the district court’s
judgment.

1

Although Wells’ notice of appeal includes the district court’s grant of summary judgment to
Sheriff Talton, because she has failed to make any arguments about her claims against him she
has abandoned them. See Access Now v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
2

Case: 16-13401

Date Filed: 05/30/2017

Page: 3 of 18

I. BACKGROUND
A. Facts
This is a tragic case because a young man lost his life. Regardless of the
legal liability, or lack thereof, there are no winners in this case. The following facts
are taken from the record evidence available to the district court when it entered
summary judgment.
On the morning of January 24, 2011, Deputy Glidden heard a radio
broadcast alerting him to the fact that there was a residential burglary in progress.
Deputy Glidden, who was in the vicinity serving civil papers, radioed in and was
instructed to assist in the investigation. The dispatcher was unable to provide
Deputy Glidden with a description of the suspect, but warned Deputy Glidden that
the suspect was possibly armed with a loaded .45 caliber pistol because a weapon
matching that description was missing from the residence.
While searching for the suspect, Deputy Glidden encountered Chambers in a
wooded area located near a middle school and the scene of the burglary. Chambers
was wearing a large black jacket with the hood pulled over his head and had both
of his hands in his pockets. Deputy Glidden testified that he had no reason to
suspect Chambers was the burglar, but was concerned when Chambers refused to
show his hands. The district court described the events that unfolded as follows:
According to Deputy Glidden, he told Chambers numerous times to remove
his hands from his jacket pockets. After his second command, Chambers
3

Case: 16-13401

Date Filed: 05/30/2017

Page: 4 of 18

asked “Why? What’s going on?,” but Glidden refused to answer. Instead,
Glidden commanded Chambers again to take his hands out of his pockets
and to take the hood of his jacket off. Chambers complied with Glidden’s
latter request by tilting his head back so the hood could fall off, but he kept
his hands in his pockets. Chambers then began taking slow steps towards
Glidden. At that point, Glidden testified that he did not feel threatened by
Chambers, and he did not draw his weapon. As Chambers walked closer,
Glidden asked Chambers where he lived, and Chambers indicated his mother
lived in a subdivision nearby.
When Chambers came within six inches of Glidden, he stepped to Glidden’s
right as if to walk by him. As he did so, Glidden remained still with his eyes
focused on the area from which Chambers came to make sure no one was
coming up from behind. Using his peripheral vision, Glidden saw Chambers
start to pull his left hand from his jacket pocket and saw the butt of a pistol
in Chambers’ left hand.
Upon seeing the butt of the pistol, Glidden grabbed Chambers’ left hand,
tried to push it back into his pocket, and seized Chambers with his other
hand. Glidden yelled for Chambers to let go of the gun and get on the
ground, as he physically struggled with him. During the struggle, Glidden
testified he felt Chambers pulling on Glidden’s Glock pistol in its holster,
jerking it, and attempting to pull it out. Chambers, however, never gained
control over Glidden’s pistol. While still struggling to get Chambers to the
ground, Glidden deployed his taser in an attempt to get Chambers under
control. Glidden heard the taser clicking and knew that he did not have a
“good connection”; instead, Deputy Glidden received a shock from the taser
and dropped it.
That taser was equipped with a camera that began recording after Glidden
pulled it during the struggle. The camera recorded the next twenty seconds
of the encounter. In that video, Glidden repeatedly yells at Chambers to get
on the ground and tugs Chambers by the front of his shirt. Chambers gets
down on his hands and knees, and responds “I’m on the ground, sir!” No
weapon can be seen on the video. The camera begins to shake, and
Chambers disappears from the camera’s view. For the next twelve seconds,
the camera moves quickly, showing flashing unrecognizable images before
falling to the ground. One can hear a single gunshot as the video comes to
an end.
4

Case: 16-13401

Date Filed: 05/30/2017

Page: 5 of 18

After dropping the taser, Deputy Glidden lost control of Chambers. Glidden
testified that he held onto Chambers’ jacket, but Chambers wriggled free of
his jacket, pulled away from Glidden, and fled towards the neighborhood
where other deputies and residents were located. Glidden held Chambers’
jacket in his hand when it came off, and he did not feel the weight of the gun
he had seen seconds earlier in the jacket pocket. Believing Chambers still
had the gun, Glidden quickly threw the jacket aside and retrieved the
magazine to his Glock pistol from the ground nearby. Without giving
Chambers a verbal command to stop, Glidden fired his Glock pistol once,
hitting Chambers in the back of the head and killing him instantly. Glidden
testified that he shot Chambers because he believed Chambers was armed
and presented an imminent threat to the residents and deputies in the
neighborhood. Glidden admitted he did not see a gun in Chambers’
possession at the time he shot him, and the undisputed facts show Chambers
was unarmed when he fled. Indeed, officers investigating the nearby
burglary arrived at the scene and found a .45 caliber handgun lying on the
ground roughly five feet from Chambers’ jacket and Glidden’s taser. The
serial number on the gun matched the one belonging to the gun taken from
the burglarized house.
(R. Doc. 32, pp. 3‒8.)
B. Procedural History
Wells filed a 42 U.S.C. § 1983 complaint against Sheriff Talton, in his
official capacity, and Deputy Glidden, in his individual capacity, alleging that
Deputy Glidden’s use of deadly force violated Chambers’ Fourth and Fourteenth
Amendment rights. Wells also alleged a state law wrongful death claim. The
defendants filed an answer, and after an extended discovery period, they filed a
motion for summary judgment. After Wells responded, the district court granted
summary judgment to the defendants as to all claims, finding that Deputy Glidden
was protected by qualified immunity because his use of deadly force was
5

Case: 16-13401

Date Filed: 05/30/2017

Page: 6 of 18

reasonable under the circumstances and did not violate clearly established law.
The district court also found that Deputy Glidden was entitled to official immunity
on the state law wrongful death claim.
In September 2015, new counsel entered an appearance on behalf of Wells
and filed a motion to alter or amend the judgment. Counsel included numerous
exhibits, seeking to introduce new evidence to support the motion. Wells later
filed a motion to amend the motion to alter or amend the judgment and included
more exhibits. The defendants filed responses to both motions. On June 1, 2016,
the district court entered an order granting Wells’ motion to amend the motion to
alter or amend the judgment but denied her initial motion to alter or amend the
judgment. Wells then perfected this appeal.
II. STANDARDS OF REVIEW
“We review de novo a district court’s grant of summary judgment based on
qualified immunity and apply the same legal standards as the district court.”
Draper v. Reynolds, 369 F.3d 1270, 1274 (11th Cir. 2004). “We resolve all issues
of material fact in favor of the plaintiff, and then determine the legal question of
whether the defendant is entitled to qualified immunity under that version of the
facts.” Bashir v. Rockdale Cty., Ga., 445 F.3d 1323, 1327 (11th Cir. 2006)
(quotation omitted). “We recognize that facts, as accepted at the summary
judgment stage of the proceedings, may not be the actual facts of the case.” Oliver
6

Case: 16-13401

Date Filed: 05/30/2017

Page: 7 of 18

v. Fiorino, 586 F.3d 898, 901 (11th Cir. 2009) (internal quotation marks omitted).
Nonetheless “we approach the facts from the plaintiff’s perspective because the
issues appealed here concern not which facts the parties might be able to prove,
but, rather, whether or not certain given facts showed a violation of clearly
established law.” Crenshaw v. Lister, 556 F.3d 1283, 1289 (11th Cir. 2009)
(quoting Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002)).
“We review the denial of a motion to alter or amend a judgment under Rule
59(e) for abuse of discretion.” Shuford v. Fidelity Nat’l Prop. & Cas. Ins. Co., 508
F.3d 1337, 1341 (11th Cir. 2007). Similarly, we review a district court’s order
denying relief under Rule 60(b) for an abuse of discretion. Waddell v. Hendry Cty.
Sheriff’s Office, 329 F.3d 1300, 1309 (11th Cir. 2003).
III. DISCUSSION
Wells challenges the district court’s grant of summary judgment and denial
of her Rule 59(e) and Rule 60(b) motions. First, with respect to the district court’s
grant of summary judgment based on qualified immunity grounds, we affirm
because we conclude that, given the evidence at the time of summary judgment,
Deputy Glidden had an objectively reasonable basis to use deadly force on
Chambers. Second, we conclude that the district court did not abuse its discretion
in denying the Rule 59(e) and Rule 60(b) motions because the evidence submitted
by Wells was not newly discovered. Finally, we affirm the district court’s
7

Case: 16-13401

Date Filed: 05/30/2017

Page: 8 of 18

judgment on Wells’ state law claim because, at the time of summary judgment,
there was no evidence that Deputy Glidden’s use of deadly force was negligent or
performed with actual malice or actual intent to cause injury.
A. Qualified Immunity
“Qualified immunity protects . . . officers from liability in § 1983 actions as
long ‘as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’ ” Lewis v.
City of W. Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). Because neither
party disputes that Deputy Glidden acted within his discretionary authority, the
burden shifts to Wells to prove that Deputy Glidden is not entitled to qualified
immunity. See Lee, 284 F.3d at 1194.
To determine whether an officer is entitled to qualified immunity at the
summary judgment stage, we employ a two-part inquiry. First, we ask “whether
the facts, [t]aken in the light most favorable to the party asserting the injury, . . .
show the officer’s conduct violated a [federal] right.” Salvato v. Miley, 790 F.3d
1286, 1292 (11th Cir. 2015) (alterations in original) (quoting Tolan v. Cotton, 572
U.S. ___, ___, 134 S. Ct. 1861, 1865 (2014)). Second, we ask “whether the right
in question was ‘clearly established’ at the time of the violation.” Id. (quoting
Tolan, 134 S. Ct. at 1866). A plaintiff must satisfy both inquiries in order to defeat
8

Case: 16-13401

Date Filed: 05/30/2017

Page: 9 of 18

qualified immunity. See Pearson v. Callahan, 555 U.S. 223, 232, 129 S. Ct. 808,
816 (2009) (“Qualified immunity is applicable unless the official’s conduct
violated a clearly established constitutional right.”). When we perform this
analysis, we “may not resolve genuine disputes of fact in favor of the party seeking
summary judgment.” Tolan, 134 S. Ct. at 1866. Our function at summary
judgment is to “determine whether there is a genuine issue for trial,” not to weigh
the evidence. Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106
S. Ct. 2505, 2511 (1986)).
All use of force claims against a police officer are analyzed under the Fourth
Amendment reasonableness test. Graham v. Connor, 490 U.S. 386, 395, 109 S.
Ct. 1865, 1871 (1989). “[T]he question is whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.” Id. at 397, 109 S. Ct. at
1872. “The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight. . . . The calculus of reasonableness must embody allowance for the
fact that police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of
force that is necessary in a particular situation.” Id. at 396‒97, 109 S. Ct. at 1872.
Thus, a police officer is entitled to qualified immunity “if a reasonable police
9

Case: 16-13401

Date Filed: 05/30/2017

Page: 10 of 18

officer could have believed his or her actions were lawful in light of clearly
established law and the information possessed by the officer.” Stewart v. Baldwin
Cty. Bd. of Educ., 908 F.2d 1499, 1504 (11th Cir.1990).
In Vaughan v. Cox, 343 F.3d 1323 (11th Cir.2003), we reviewed an
excessive force claim and recited some of the conditions attendant to the lawful use
of deadly force. We observed that a police officer may use deadly force when the
officer, “(1) has probable cause to believe that the suspect poses a threat of serious
physical harm, either to the officer or to others . . . ; (2) reasonably believes that the
use of deadly force was necessary to prevent escape; and (3) has given some
warning about the possible use of deadly force, if feasible.” Id. at 1329–30
(quoting Tennessee v. Garner, 471 U.S. 1, 11–12, 105 S. Ct. 1694, 1701 (1985)
(emphasis in original). The mere failure to give a warning, however, does not
preclude summary judgment where the facts otherwise indicate that the officer’s
use of force was reasonable. See Penley v. Eslinger, 605 F.3d 843, 854 n.6 (11th
Cir. 2010); see also Scott v. Harris, 550 U.S. 372, 382, 127 S. Ct. 1769, 1777
(2007) (“Garner did not establish a magical on/off switch that triggers rigid
preconditions whenever an officer’s actions constitute ‘deadly force.’ ”).
As the district court found, Deputy Glidden’s use of deadly force was
objectively reasonable because, at the time, Deputy Glidden had probable cause to
believe Chambers had committed the serious crime of burglary during which a
10

Case: 16-13401

Date Filed: 05/30/2017

Page: 11 of 18

loaded .45 caliber gun was stolen. When Deputy Glidden encountered the
decedent in the wooded area near the burglarized house, the decedent refused to
obey Deputy Glidden’s commands to show his hands. When Deputy Glidden
asked him to show his face, the decedent tilted his head back for his hood to fall
rather than using his hands to remove the hood. Approaching the decedent, Deputy
Glidden observed the butt of a gun in the decedent’s hand, as he slowly began to
pull it from his coat pocket. In addition, after a brief struggle, the decedent ran in
the direction of the other officers and residents, and Deputy Glidden did not know
where the gun was. Deputy Glidden pulled on the decedent’s coat and held it but
did not feel a weapon in the pocket. He reasonably thought the decedent had the
gun with him. 2
When he made the decision to shoot, Deputy Glidden had probable cause to
believe that Chambers was the burglar, that he was armed with a .45 caliber pistol,
and that he posed a threat to officers and the public. Thus, Deputy Glidden had to
make a “split second judgment” in a situation that was rapidly unfolding. A
reasonable officer in Deputy Glidden’s position could have believed that deadly
force was necessary to prevent the decedent’s escape and avert a threat of harm to
others. Deputy Glidden resorted to deadly force after his verbal commands and
2

The fact that Officer Glidden was later found to be mistaken about Chambers having the gun as
he ran away does not defeat qualified immunity. See Penley, 605 F.3d at 854 (finding that
officer’s use of deadly force was reasonable where suspect held a toy gun modified to look like a
real gun).
11

Case: 16-13401

Date Filed: 05/30/2017

Page: 12 of 18

physical altercation did not subdue the decedent. Under the evidence in the record
at the time of summary judgment, viewed in the light most favorable to the
plaintiff, we conclude that the district court properly determined that the use of
deadly force did not violate Chambers’ Fourth Amendment rights. Accordingly,
we hold the district court properly granted qualified immunity to Deputy Glidden.3
B. Rule 59(e)
Wells filed a Rule 59(e) motion based on newly discovered evidence. In her
motion, Wells posits that the investigation was tainted from the beginning. She
claims that there was a lack of fingerprint analysis, the gun found at the scene was
planted, a cell phone found on the decedent’s body was planted at the scene of the
burglary, and physical evidence contradicts Deputy Glidden’s statement that he
shot the deceased while he was fleeing. In support of her claims, Wells attached
over 50 exhibits. The district court reviewed the claims and denied the motion.
To support a Rule 59(e) motion based on new evidence, “the movant must
show either that the evidence is newly discovered or, if the evidence was available
at the time of the decision being challenged, that counsel made a diligent yet
unsuccessful effort to discover the evidence.” Chery v. Bowman, 901 F.2d 1053,
3

Assuming arguendo that Wells could show a Fourth Amendment violation to overcome
qualified immunity, she would also have to show that Deputy Glidden’s use of deadly force
violated clearly established law. “[T]he salient question . . . is whether the state of the law . . .
gave respondents fair warning that their alleged [conduct] was unconstitutional.” Hope v. Pelzer,
536 U.S. 730, 741, 122 S. Ct. 2508, 2516 (2002). Wells cannot meet this burden. She cannot
show that the law was developed in such way that it gave Deputy Glidden fair warning that,
under the circumstances he encountered, the use of deadly force was unconstitutional.
12

Case: 16-13401

Date Filed: 05/30/2017

Page: 13 of 18

1057 n.6 (11th Cir. 1990). This motion is not intended to “relitigate old matters,
raise argument or present evidence that could have been raised prior to the entry of
judgment.” Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763
(11th Cir. 2005).
We conclude from the record that the district court did not abuse its
discretion in denying the motion. The district court addressed the three affidavits
Wells submitted and found that none contained newly discovered evidence. One
affidavit is from Wells, one is from the decedent’s cousin, and one is from the
decedent’s sister, and all call into question whether Chambers was near the
burglarized home at the time in question. However, as the district court properly
found, Wells cannot show how this information was not available at the time the
district court entered judgment.
Wells also alleged that the gun found at the scene was the not the gun stolen
from the burglarized home. She claims the gun found at the scene was planted by
police and is actually a different gun than the one reported missing from the
burgled residence. The difference between the description of the gun’s color
(black) and its actual color (blue) did not raise a genuine issue of material fact
because there is undisputed evidence showing that the gun’s serial number
matched the serial number of the gun stolen earlier that morning. Thus, this
information was not “newly discovered” contradictory evidence.
13

Case: 16-13401

Date Filed: 05/30/2017

Page: 14 of 18

Wells further claimed in her motion that genuine issues of material fact exist
as to whether the Sheriff’s office tampered with evidence. She relies on photos
taken by the Sheriff’s office and the Georgia Bureau of Investigation, which she
contends show inconsistencies in the evidence. She also argues that the police
reports, photos, and maps support her theory that the deceased was framed for the
burglary. As the district court properly found, none of this evidence was “new.”
Lastly, Wells argues that the district court erred because it did not properly
construe the facts in her favor when it ruled on the summary judgment motion.
She relies on the fact that because Deputy Glidden is the only surviving witness,
the district court did not properly consider the circumstantial evidence that would
discredit his account of the events. However, as the district court found, the
evidence upon which Wells relies is merely speculative and fails to show that
Deputy Glidden acted unreasonably after seeing what he believed was a gun in the
decedent’s pocket.
Wells cites Tolan v. Cotton, 572 U.S. ___, 134 S. Ct. 1861, to support her
argument that the district court decided disputed issues and credited evidence in
favor of Deputy Glidden. Tolan does not support her assertion because in that
case, before summary judgment was granted, both the plaintiff and his mother
offered an account of the events that contradicted the officer’s statements, yet the
court failed to credit the evidence that supported the plaintiff and his mother’s
14

Case: 16-13401

Date Filed: 05/30/2017

Page: 15 of 18

account. Thus, the Supreme Court found that the Fifth Circuit improperly weighed
the evidence and remanded the case. Id. at 1868.
In contrast, here, there is no similar contradictory evidence. Wells cannot
produce any witnesses to contradict Deputy Glidden’s statements, nor is there any
circumstantial evidence to refute his account. The district court did not err in
construing the facts and properly granted summary judgment to Deputy Glidden on
the basis of qualified immunity. Moreover, Wells does not meet the requirements
to be entitled to Rule 59(e) relief.
C. Rule 60(b)
Wells contends that the district court abused its discretion in denying her
Rule 60(b) motion based on newly discovered evidence. Wells suggests that the
police tampered with the crime scene and planted evidence. She also claims that
Deputy Glidden’s account of the events was not credible, and the district court
placed too much emphasis on his sole recount of the shooting. Wells submitted
documents and affidavits to support her claims. She specifically stated in her
motion that she “request[s] that the Court find that it is no longer equitable to
impose the judgment, pursuant to Rule 60(b)(5).” (R. Doc. 36.)
Rule 60(b)(5) justifies relief if “the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable.” FED. R. CIV. P. 60(b)(5). The
15

Case: 16-13401

Date Filed: 05/30/2017

Page: 16 of 18

plain language of this rule operates to prevent “an inequitable operation of a
judgment.” Cook v. Birmingham News, 618 F.2d 1149, 1153 (5th Cir. 1980)
(addressing prospective application of a decree).
Rule 60(b)(6), the catchall provision, authorizes relief for “any other reason
that justifies relief.” FED. R. CIV. P. 60(b)(6). Rule 60(b)(6) motions must
demonstrate “that the circumstances are sufficiently extraordinary to warrant relief.
Even then, whether to grant the requested relief is . . . a matter for the district
court's sound discretion.” Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1317
(11th Cir. 2000) (denying relief under Rule 60(b)(6) as well) (internal quotation
and citation omitted).
The appellant's burden is heavy. See Cano v. Baker, 435 F.3d 1337, 1342
(11th Cir. 2006). “[I]t is not enough that a grant of the [Rule 60(b) motion] might
have been permissible or warranted; rather, the decision to deny the motion [] must
have been sufficiently unwarranted as to amount to an abuse of discretion.” Griffin
v. Swim–Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984). Thus, Wells “must
demonstrate a justification so compelling that the [district] court was required to
vacate its order.” Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir.
1993) (quotation and citation omitted).
Wells fails to make a sufficient showing that the district court was required
to vacate its order to prevent an inequitable operation of its judgment. The basis
16

Case: 16-13401

Date Filed: 05/30/2017

Page: 17 of 18

for this relief, according to Wells, is that a revised narrative of the events and
circumstances surrounding the final days of the decedent’s life indicate that it is no
longer equitable to impose the judgment granting qualified immunity to Deputy
Glidden. As we concluded when discussing Rule 59(e), the evidence was not
newly discovered and was available to Wells at the summary judgment stage. It
follows that the district court’s failure to relieve Wells of the summary judgment
order under Rule 60(b)(5) did not amount to an abuse of discretion. Moreover, the
need for finality prevents us from allowing litigants to use Rule 59(e) and Rule
60(b) motions to re-litigate old issues or raise new theories of the case after
judgment is rendered.
D. State law wrongful death claim
Wells filed a state law wrongful death claim against Deputy Glidden
pursuant to O.C.G.A. § 51-4-5. The district court properly granted summary
judgment on this claim because the evidence at summary judgment did not show
that Deputy Glidden’s use of deadly force was negligent or performed with actual
malice or with actual intent to cause injury. See Cameron v. Lang, 549 S.E.2d 341,
345 (Ga. 2001). “The bar for proving malice or an intent to cause injury is high.”
Schwartz v. Gwinnett Cty., Ga., 924 F. Supp. 2d 1362, 1378 (N.D. Ga. 2013).
Here, the evidence at summary judgment shows that Deputy Glidden believed that
the use of force was necessary to prevent death or serious bodily harm to other
17

Case: 16-13401

Date Filed: 05/30/2017

Page: 18 of 18

deputies and residents in the neighborhood. Wells presented no evidence at
summary judgment creating a genuine issue of material fact that Deputy Glidden’s
use of deadly force was negligent or that he acted with actual malice or with actual
intent to cause injury. Thus, we conclude that the district court properly granted
summary judgment on this state law claim.
IV. CONCLUSION
In conclusion, the district court did not err when it granted summary
judgment to the defendants on the § 1983 claim and the state law claim.
Additionally, the district court did not abuse its discretion when it denied the Rule
59(e) or the Rule 60(b) motions.
AFFIRMED.

18