McCall v. Crosswaite et al (MAG+)

Filing 60

ORDERED as follows: (1) the 56 Recommendation is REJECTED and defendants' 57 objections are SUSTAINED with respect to McCall's 1983 claim against Officer Crosthwait in his individual capacity for use of excessive force. Defendants' ; 46 motion for summary judgment is therefore granted with respect to that claim; (2) there being no objections to the recommendation on the excessive force claims against defendant Mayor Bobby Bright and Chief of Police Arthur Baylor, and upon an independent review of the record, the 56 recommendation that the defendants' 46 motion for summary judgment be granted is ADOPTED and the 46 motion is granted, with respect to those claims; (3) having dismissed the federal claims, the cour t declines to exercise supplemental jurisdiction over the state-law claims. The 56 recommendation is therefore REJECTED with respect to the state-law claims, and they are dismissed for lack of jurisdiction. The clerk of court is directed to close this case. Signed by Honorable William Keith Watkins on 12/23/08. (sl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION H A R R Y L. MCCALL, P l a in tif f , v. H .G . CROSTHWAIT, et al., D e f e n d a n ts . ) ) ) ) ) ) ) ) )

C A S E NO. 2:07-CV-870-WKW [WO]

ORDER B e f o re the court is the Recommendation of the Magistrate Judge (Doc. # 56) on D e f en d a n ts ' motion for summary judgment (Doc. # 46). With the motion, Defendants filed a supporting memorandum with exhibits. (Doc. # 47.) Plaintiff Harry L. McCall ("McCall") f ile d a response (Doc. # 54), and a brief, with an exhibit, opposing summary judgment (Doc. # 55). The Magistrate Judge entered a recommendation that summary judgment be denied in part and granted in part (Doc. # 56, at 13-14), to which Defendants objected and requested leav e of court to supplement the record (Doc. # 57). Their request to supplement the record w a s granted (Doc. # 58), and Defendants filed a certified copy of the complete medical re c o r d provided to them by a Dr. Gilberto Sanchez ("Dr. Sanchez") (Doc. # 59). For the f o llo w in g reasons, the Magistrate Judge's recommendation is due to be rejected in part and a d o p ted in part. T h e Magistrate Judge recommends denying summary judgment on the claim that D e f e n d a n t Officer H.G. Crosthwait ("Officer Crosthwait") used excessive force against

M c C a ll when he was in the Montgomery Municipal Jail, in violation of the Fourth A m e n d m e n t to the United States Constitution.1 (Recommendation 13-14.) McCall was ta k e n into custody for domestic violence and transported to the Montgomery Police D e p a rtm e n t.2 (Recommendation 3-4.) McCall claims that Officer Crosthwait pushed him into a steel cell door and a plexiglass window when moving from an elevator. ( R e c o m m e n d a tio n 4.) A medical team on site found that McCall had sustained no injuries, b u t he insisted on medical assistance from the hospital, which was granted. (R e c o m m e n d a tio n 4.) McCall complained of pain in his right shoulder, upper forearm and e lb o w , but x-rays indicated no abnormalities in the shoulder, and no acute findings in his e lb o w . (Recommendation 4.) McCall's only injuries were a contusion to his right elbow and sh o u ld e r, and he was told to take ibuprofen and follow up with his primary physician if n ee d ed . (Recommendation 5.) The next day, McCall complained to Dr. Sanchez that he was suffering from shoulder a n d arm pain, headaches, dizziness, and blurred vision from, as he claimed, being slammed a g a in s t the door. (Recommendation 5.) Dr. Sanchez referred him for CT scans of his head a n d spine. (Recommendation 5.) The head scan revealed a deformity "suspicious for an old in f e rio r blow-out fracture" in the inferior orbital wall on the right. (Sanchez Complete

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McCall's claim is brought pursuant to 42 U.S.C. § 1983.

Defendants' objections to the ruling on excessive force go to the legal, not factual rulings of the recommendation. The facts laid out in the "Facts" section of the recommendation, on pages three to five, are thus adopted upon independent review of the record.

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R e c o rd s 19.) The spinal scan showed a "small central disc protrusion/herniation which does n o t appear to contact the spinal cord or narrow the spinal canal." (Sanchez Complete R e c o rd s 20.) However, there is no indication in the medical records or other admissible te s tim o n y as to causation of the old fracture or the disc protrusion. (See Sanchez Complete R e c o rd s .) T h e Fourth Amendment protects the "`right to be free from the use of excessive force in the course of an arrest.'" 3 Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002) (q u o tin g Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002)). Government officials sued f o r excessive force, however, can assert qualified immunity. Defendants argue that Officer C ro sth w a it is entitled to qualified immunity on the excessive force claim, but the Magistrate J u d g e recommends that qualified immunity not be granted because there is a genuine issue o f material fact as to whether the force was excessive or necessary.4 (Recommendation 10.)

The Fourth Amendment also protects against "`harassing and abusive'" behavior which rises to the level of "unreasonable." Hicks v. Moore, 422 F.3d 1246, 1253 (11th Cir. 2005) (quoting Fontana v. Haskin, 262 F.3d 871, 878 (9th Cir. 2001)). McCall's claim is only for excessive force. The recommendation analyzes McCall's claim under the Fourth Amendment, which the parties have not challenged. The recommendation found that at the time of the jail incident, McCall was in a "`legal twilight zone'" because he had already been taken into the jail but had not yet been booked, and had not yet made an initial appearance. (Recommendation 8 (quoting Calhoun v. Thomas, 360 F. Supp. 2d 1264, 1271-72 (M.D. Ala. 2005) (Thompson, J.)).) Calhoun applied the Fourth Amendment to a plaintiff who had already been "`seized' and for all intents and purposes, arrested at the time of the alleged abuses,'" but nevertheless, was not a pretrial detainee because he had not been officially arrested or booked; nor had the plaintiff made an initial appearance before a judge, or been charged with a crime. 360 F. Supp. 2d at 1271-72; see also Shaw v. Marshall, No. 07cv606, 2008 WL 1924992, at *7 (M.D. Ala. Apr. 9, 2008) (DeMent, J.). The Fourth Amendment standard is "commonly an easier standard for a plaintiff to meet" than the Fourteenth Amendment's requirement of deliberate indifference to a substantial risk of harm. Hicks, 422 F.3d at 1254 n.7.
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Q u a lif ie d immunity is more than "a mere defense to liability" ­ it is immunity from s u it. Galvez v. Bruce, F.3d , No. 06-02176, 2008 WL 5246102, at *3 (11th Cir. Dec.

1 8 , 2008) (quoting Scott v. Harris, 127 S. Ct. 1769, 1773 n.2 (2007)). Under qualified im m u n ity, government officials acting pursuant to a discretionary function 5 are protected f ro m civil liability if the conduct does not violate "`clearly established statutory or c o n stitu tio n a l rights of which a reasonable person would have known.'" Nolin v. Isbell, 207 F .3 d 1253, 1255 (11th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). T h e "`threshold'" question of whether the officer violated a constitutional right must be re s o lv e d before considering whether the violation was clearly established. Galvez, 2008

W L 5246102, at *3 (quoting and citing Scott, 127 S. Ct. at 1774). Qualified immunity is w a rra n te d in excessive force cases "`unless application of the standard would inevitably lead ev ery reasonable officer [in defendant's position] to conclude the force was unlawful,'" R e e s e v. Herbert, 527 F.3d 1253, 1272 (11th Cir. 2008) (quoting Post v. City of Fort L a u d e rd a le , 7 F.3d 1552, 1559 (11th Cir. 1993), modified, 14 F.3d 583 (11th Cir. 1994)). G a lv e z, 2008 WL 5246102, at *5. Officer Crosthwait is entitled to qualified immunity in this c a s e because there was no Fourth Amendment violation. The use of de minimis force constitutes a violation of the Fourth Amendment only if th e officer was not entitled to arrest or detain the plaintiff. Reese, 527 F.3d at 1272. McCall

The parties do not dispute that Officer Crosthwait was performing discretionary functions. (Objections to Recommendation 3-4.) The burden is on McCall then to prove qualified immunity does not apply. Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1136 (11th Cir. 2007).

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h a s not challenged the basis for his arrest. Where probable cause is not challenged, the q u estio n of whether force was excessive is a question of whether the officer's actions were " `o b je c tiv e ly reasonable' in light of the facts and circumstances [he] faced at the time." 6 Id. (q u o tin g Graham v. Connor, 490 U.S. 386, 396 (1989)). Those facts and circumstances in c lu d e "`the severity of the crime at issue, whether the suspect pose[d] an immediate threat to the safety of the officers or others, and whether he [was] actively resisting arrest or a tte m p tin g to evade arrest by flight.'" Id. (quoting Graham, 490 U.S. at 396); see also G a lv e z, 2008 WL 5246102, at *4.7 D e minimis force, without more, however, cannot constitute a Fourth Amendment v io la tio n if the basis of the arrest is not challenged. Nolin, 207 F.3d at 1257 (reaffirming that af ter Graham, the de minimis principle still applies); 8 Reese, 527 F.3d at 1272. Under the d e minimis principle, "a minimal amount of force and injury . . . will not defeat an officer's

The reasonableness inquiry is a "`careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.'" Lee, 284 F.3d at 1197 (11th Cir. 2002) (internal quotation marks omitted). The Eleventh Circuit's test for excessive force prior to Graham is still valid as to three of the factors courts should consider: "(1) the need for the application of force; (2) the relationship between the need and amount of force used, and (3) the extent of the injury inflicted," Lee, 284 F.3d at 1198. Id. at 1198 n.7; see also Nolin, 207 F.3d at 1256 n.2 ("The Graham Court did not establish a precise test for identifying excessive force . . . ."). The recommendation addresses the excessive force factors as articulated by this Eleventh Circuit test. (See Recommendation 9-10.) In reversing a district court's ruling to the contrary, Nolin reaffirmed the de minimis principle and three circuit opinions that applied it after Graham to reverse district courts that denied qualified immunity. Nolin, 207 F.3d at 1257 & 1258. According to Nolin, one of those cases, Post, "refined Graham by concluding that in making the highly fact-intensive excessive force inquiry, a court may conclude that an officer retains qualified immunity when the facts show a minimal amount of force combined with a minor or nonexistent injury." Nolin, 207 F.3d at 1257 n.3.
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im m u n ity in an excessive force case." Nolin, 287 F.3d at 1258 (emphasis added). Indeed, e v e n if the force was unnecessary, if "the actual force used and the injury inflicted were both m in o r in nature . . . . the application of the excessive force standard would not inevitably lead a n official in [the defendant's] position to conclude that the force was unlawful." Id. at 1 2 5 6 -5 7 (discussing and quoting Jones v. City of Dothan, 121 F.3d 1456, 1460-61 (11th Cir. 1 9 9 7 ) (per curiam)); Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003).9 I n McCall's case, the hospital found no injuries after the jail incident, aside from a c o n tu sio n to his right elbow and shoulder. Even if the contusion was caused by the incident, a n d not by any immediately preceding domestic dispute, the injury was minor. See, e.g., V in y a r d , 311 F.3d at 1349 n.13 (noting a strong argument that "minor bruising" is de minimis in ju ry); Nolin, 207 F.3d at 1258 n.4 (finding de minimis force when "minor bruising" along w ith minimal force); Jones, 121 F.3d at 1460 (finding that the plaintiff's pain from lifting his a rm s because of a prior stroke, and his pain from an arthritic knee after having his legs k ick e d apart was "minor" injury); Gold v. City of Miami, 121 F.3d 1442, 1446 (11th Cir. 1 9 9 7 ) (per curiam) (describing "skin abrasions" as a minor injury, though they were "skin a b ra sio n s for which [the plaintiff] did not seek medical treatment"). The scans taken after M c C a ll's next-day visit with Dr. Sanchez exposed only two problems. The first, found by

In Galvez, the court analyzed the plaintiff's excessive force Fourth Amendment claim under the Graham factors and not the de minimis principle. 2008 WL 5246102. The de minimis principle, however, was clearly inapposite given the facts of the case. The office dragged the plaintiff outside and slammed him into the corner of a concrete structure, causing "severe" pain, and "serious" injuries (broken ribs and a leaking aneurysm). Id. at *4, 6 (likening the force to "significant" force).

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th e head scan, was a "deformity in the inferior orbital wall on the right suspicious for an old in f e rio r blow-out fracture." (Sanchez Complete Records 19 (emphasis added).) The report, th u s , cuts against establishing any causation between the incident and injury. The second p ro b le m , found by a spinal scan, was "a small central disc protrusion/herniation which does n o t appear to contact the spinal cord or narrow the spinal canal." (Sanchez Complete R e c o rd s 20.) There is no indication in the medical records, or other testimony, that the spinal f in d in g could have been caused by Officer Crosthwait's actions. Indeed, there is insufficient e v id e n c e to adjudicate on the severity, much less the causes of the injury. It should also be n o te d that "`[w]hat would ordinarily be considered reasonable force does not become e x c es s iv e force when the force aggravates (however severely) a pre-existing condition the e x t e n t of which was unknown at the time.'" Durruthy, 351 F.3d at 1094 n.10 (quoting R o d rig u e z v. Farrell, 280 F.3d 1341, 1353 (11th Cir. 2003)). From the record now before th e court, the injuries McCall incurred were only minimal. The force Office Crosthwait exerted was also minimal. "The minor nature of [an] in ju ry [can] reflect[] that minimal force was used . . . ." Gold, 121 F.3d at 1446 (in the c o n tex t of handcuffing); see also Skrtich v. Thornton, 280 F.3d 1295, 1302 (11th Cir. 2002) ( d e s c r i b in g the type of injury as a way of showing that force was not de minimis). The E le v e n th Circuit has found de minimis force and qualified immunity in the following c irc u m s ta n c es : when an officer put a foot on the face of the plaintiff, who was face down on th e pavement, after he asked why he was being arrested, Crosby v. Monroe County, 394 F.3d

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1 3 2 8 , 1334-35 (11th Cir. 2004); when the plaintiff was grabbed and shoved a few feet a g a in s t a vehicle while pushing a knee against his back and pushing his head into the van and s e a rc h in g the groin area in an uncomfortable way, Nolin, 207 F.3d at 1258 n.4; when the p la in tif f 's legs were kicked apart, requiring him to raise his arms, and pulling his wallet from h is pants, Jones, 121 F.3d at 1460; and when tight handcuffs were on the plaintiff's wrists f o r twenty minutes causing pain and skin abrasions, Gold, 121 F.3d at 1446. See also Bryan v . Spillman, 217 F. App'x 882, 886 (11th Cir. 2007) (per curiam) (finding the "temporary p a in " and "no treatment" and "no lasting injury" of a rough search of the genitals, and p u s h in g a defendant against a car and holding his head down, to be de minimis); cf. Vinyard, 3 1 1 F.3d at 1349-50 (finding excessive force when officer used pepper spray on the h a n d c u ff e d plaintiff who was in the patrol car but noting that it was the pepper spray that tu rn e d de minimis force, like grabbing the arm and causing minor bruising, into excessive f o rc e , id. at 1349 n.13). In Vinyard, the Eleventh Circuit held that the defendant's force at the jail was de m in im is. 311 F.3d at 1348 n.13. When Vinyard arrived at the jail, the defendant "dragged V in ya rd inside, either by her shirt, her arm or her hair." Id. at 1344. This force was de m in i m is even though the arrest had proceeded from the initial seizure to the processing stage. In Post, the Eleventh Circuit stated that pushing the plaintiff against the wall after he had b e e n handcuffed and taken outside "might have been unnecessary" but was not "plainly u n law f u l, " and the court awarded qualified immunity. 7 F.3d at 1559-60; Nolin, 207 F.3d

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a t 1258 ("We again hold, as we did in a line of cases beginning with Post, that a minimal a m o u n t of force and injury . . . will not defeat an officer's qualified immunity in an excessive f o rc e case" and citing Post on the above-referenced point, id. at 1256). Whether a plaintiff is restrained bears on whether the force used against him was de m in im is. See Lee, 284 F.3d at 1199; see also Durruthy, 351 F.3d at 1094 (distinguishing c a s e s where plaintiff was restrained and where he was not). In Lee, the Eleventh Circuit a llo w e d an excessive force claim to go forward on summary judgment because the police s la m m e d the plaintiff's head into the pavement after he was fully secured. 284 F.3d at 1199 (d is c u ss in g Slicker v. Jackson, 215 F.3d 1225 (11th Cir. 2000) (where the evidential f o u n d a tio n was that officers "repeatedly hit [the plaintiff's] head on the pavement, kicked h im , and knocked him unconscious" after he was handcuffed, id. at 1233)). The police had s la m m e d the plaintiff's head against a truck after she had been "arrested, handcuffed, and c o m p le te ly secured, and after any danger to the arresting officer as well as any risk of flight h a d passed." Lee, 284 F.3d at 1199 (distinguishing de minimis cases because they did not in v o lv e severe and disproportionate force after the arrest had been fully effected, the plaintiff s e c u re d , and the danger vitiated). The court denied qualified immunity in Priester because th e officer allowed a dog to attack an already subdued plaintiff lying on the ground, and in S m ith , because the officer broke the arm of an arrestee who "`docilely submitted'" to a r e q u e s t to get down. Id. (discussing Priester v. City of Riviera Beach, 208 F.3d 919 (11th C ir. 2000) and Smith v. Mattox, 127 F.3d 1416 (11th Cir. 1997)).

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F o r all of these cases, however, the force was not minor. Violence to the head (d ire c tly pushing it against a very hard surface) and breaking limbs are not minimal force. A s the Eleventh Circuit recently stated, the "lesson" of Lee "is that qualified immunity is not a v a ila b le to officers who subject arrestees to significant force after `the arrest ha[s] been fully e f f e c te d , the arrestee completely secured, and all danger vitiated.'" Galvez, 2008 WL 5 2 4 6 1 0 2 , at *6 (emphasis added) (quoting Lee, 284 F.3d at 1199-2000). It is the "[u]se of s i g n ific a n t force on an arrestee who would be considered by any reasonable police officer to be fully secured" that is "`wholly unnecessary'" for law enforcement purposes. Id. (q u o tin g Lee, 284 F.3d at 1199). McCall's contention is that Officer Crosthwait "pushed him with such force that he f e ll into a steel door and plexiglass window." (Recommendation 9.) Officer Crosthwait c laim s that his force was proportional to the amount of force necessary to control McCall, w h o had taken aggressive actions. (Recommendation 9-10.) This tension may give rise to a factual dispute over whether the force was necessary (Recommendation 10), but if the force a n d injury were minimal, the de minimis principle applies regardless of whether the force was n e c es s a ry. Given the examples of when force has been found to be de minimis in this circuit, th e force in this case was de minimis even if the officer pushed McCall into the door u n p ro v o k e d . (Contra Recommendation 10.)1 0 The force Officer Crosthwait applied was a

In other words, McCall has no claim as a matter of law, even taking his allegation that he was pushed or shoved unprovoked as true, and finding separately, that he has failed to support his allegation, for summary judgment purposes, that he was more than minimally injured (contra Recommendation 9).

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p u sh or shove into a door and plexiglass window. This action was taken not while McCall w a s standing still but upon exiting an elevator. McCall was handcuffed, but Officer C ro s th w a it did not bang McCall's head against anything, or send a ferocious animal after h im . McCall was not slammed, and was not pushed into harm's way. His lack of injury is in d ic a tiv e of minimal force. Though the nonexistence of a serious injury does not jeopardize a n excessive force claim if the force was more than minimal, Lee, 284 F.3d at 1200, the a b s e n c e of injury can signal whether the force was minimal. As the Supreme Court has stated, "`[n]ot every push or shove, even if it may later see m unnecessary in the peace of a judge's chambers, violates the Fourth Amendment.'" G r a h a m , 490 U.S. at 396 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). T h e excessive force inquiry provides a buffer for officers who are often acting on incomplete in f o rm a tio n and making split-second decisions. Crosby, 394 F.3d at 1334 (citing Graham, 4 9 0 U.S. at 396-97). Ruling that McCall has shown enough here for excessive force would e ro d e the de minimis principle that helps maintain that buffer. The force that Officer C r o s th w a it applied to McCall was de minimis, and for that reason, Officer Crosthwait is e n title d to qualified immunity because there was no constitutional violation. A c c o r d in g ly, it is ORDERED as follows: (1 ) T h e recommendation (Doc. # 56) is REJECTED and Defendants' objections

(D o c . # 57) are SUSTAINED with respect to McCall's § 1983 claim against Officer

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C ro s th w a it in his individual capacity for use of excessive force. Defendants' motion for s u m m a ry judgment (Doc. # 46) is therefore GRANTED with respect to that claim. (2) T h e re being no objections to the recommendation on the excessive force claims

a g a in s t Defendant Mayor Bobby Bright and Chief of Police Arthur Baylor, and upon an in d e p e n d e n t review of the record, the recommendation (Doc. # 56) that the Defendants' m o tio n for summary judgment be granted is ADOPTED and the motion (Doc. # 46) is G R A N T E D , with respect to those claims. (3) H a v i n g dismissed the federal claims, the court declines to exercise 28 U.S.C. § 1367(c)(3). The

s u p p le m e n ta l jurisdiction over the state-law claims.

r e c o m m e n d a tio n (Doc. # 56) is therefore REJECTED with respect to the state-law claims, a n d they are DISMISSED for lack of jurisdiction. The Clerk of the Court is DIRECTED to c lo s e this case. D O N E this 23rd day of December, 2008. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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