Watts v. City of Opelika, Alabama et al
PRETRIAL ORDER: Jury Selection and Jury Trial, which is to last two days, are set for 1/4/2016 10:00 AM in Opelika, Alabama before Honorable Judge Myron H. Thompson, as further set out in order; Trial Brief due by 12/21/2015; All deadlines not other wise affected by this order will remain as set forth in the uniform scheduling order (doc. no. 16 ) entered by the court on December 20, 2013 (as modified by subsequent orders), as further set out in order. Signed by Honorable Judge Myron H. Thompson on 11/24/2015. (furn: AG, Calendar)(kh, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
CIVIL ACTION NO.
November 23, 2015, wherein the following proceedings
were held and actions taken:
PARTIES AND TRIAL COUNSEL:
Wallace D. Mills, Plaintiff’s counsel
Joshua Combs’ counsel
Opelika and Joshua Combs’ counsel
Rick A. Howard, Defendant Thomas Mangham’s counsel
COUNSEL APPEARING AT PRETRIAL HEARING:
Wallace D. Mills, Plaintiff’s counsel
Randall Morgan, Defendant Joshua Combs’ counsel
Elizabeth Brannen Carter, Defendant Joshua Combs’
JURISDICTION AND VENUE:
Jurisdiction and venue are proper in this Court.
Complaint, filed October 11, 2013
Mangham November 18, 2013 [Doc. 11];
Opelika and Joshua Combs November 21, 2013
CONTENTIONS OF THE PARTIES:
On or about October 9, 2011, Opelika City Police,
including Joshua Combs, attempted to initiate a traffic
officers’ lights and siren.
Plaintiff drove to a dead
end street, get out of his car and attempted to flee on
foot into the underbrush.
Defendant Joshua combs tackled
Calvin Watts from behind causing Plaintiff to land face
down in the sand.
Defendant Combs got on Plaintiff’s
back pinning Plaintiff’s arms beneath him. After having
taken Plaintiff into custody, and while atop Plaintiff
and holding him down with his arms pinned beneath him and
Watts in the face with his fist and/or elbow multiple
causing lacerations and bruising to the same.
Combs also “kicked” Plaintiff in the ribs with his knee.
installation of a metal plate to repair his injuries.
Defendant Combs violated Plaintiff’s Fourth Amendment
right not to subject to excessive force in an arrest by
At the time of the beating, Plaintiff’s right
Plaintiff about the head and face with his fist with
sufficient force to break the orbital bone in his face
his nose, and kneeing him in the ribs with sufficient
force to break them while the Plaintiff was pinned face
down on the ground and not resisting was a constitutional
A reasonable police officer would not have
used such force under the circumstances.
His actions in assaulting and battering Plaintiff were
willful, malicious, and taken in bad faith, and beyond
his authority as a municipal police officer.
Officer Joshua Combs denies the allegations made
Officer Combs avers that any force used
force and assault/battery claims.
The claims against
Officer Combs are barred because Plaintiff entered a
Plea Agreement regarding his criminal charges and in
doing so waived any civil claims he may have against
the City or Officer Combs.
Newton v. Rumery, 480 U.S.
386 (1987) controls the facts and law of this case and
determine if the Plea Waiver Agreement is enforceable.
Plaintiff voluntarily entered the agreement and public
Officer Combs had the right to rely on
Plaintiff’s representation of waiver of civil claims
during the plea agreement that was executed under the
supervision of a judge.
Plaintiff waived all civil
claims as a matter of law and any claims made against
Officer Combs should be dismissed as a matter of law.
qualified immunity for the excessive force claim and
state agent immunity and immunity pursuant to §6-5-338,
Ala. Code (1975) for the assault and battery claim.
Officer Combs did not engage in any force that was not
necessary to effectuate the arrest of Plaintiff who
Officer Combs never engaged in conduct
resistive and combative behavior before the tackle that
officer in the same situation as necessitating physical
force to effectuate the arrest.
to resisting arrest.
After he was cuffed, Plaintiff
received no injuries.
Plaintiff pled guilty
There are no facts or legal
immunity or state agent immunity should be stripped
from Officer Combs.
Plaintiff’s claims against Officer Combs are barred
by the application of Heck v. Humphrey, 512 U.S. 477
Considering the facts as presented in state
criminal court, upon which Plaintiff based his plea,
Plaintiff’s criminal plea of guilty to the charge of
resisting arrest bars his claim of excessive force and
assault/battery claims here.
Plaintiff failed to state a claim upon which relief
could be granted.
Officer Combs pleads release, res
judicial estoppel, waiver, latches, assumption of the
risk and self-defense.
Officer Combs further alleges
Plaintiff was contributorily negligent and alleges that
circumstances he had to make the split-second decision
to use force to effectuate the arrest of Plaintiff.
Office Combs acted in good faith and in the confines of
federal and state law.
Office Combs pleads privilege
denies the nature/extent/cause of Plaintiff’s alleged
damages and alleges Plaintiff failed to mitigate his
* * *
It is ORDERED that:
(1) The jury selection and trial of this cause,
which is to last two days, are set for January 4, 2016,
(2) A trial docket will be mailed to counsel for
each party approximately two weeks prior to the start
of the trial term;
(3) Each party shall have available at the time of
trial, for use by the court (the judge, the courtroom
deputy clerk, and the law clerk), three copies of the
exhibit list and a sufficient number of copies of each
counsel, the courtroom deputy clerk, the law clerk, the
(4) Trial briefs ((a) summarizing the evidence to
be presented at trial, (b) setting forth the elements
of each and every claim and defense at issue and how
the evidence does or does not satisfy those elements,
arise at trial) are required to be filed by December
(5) All deadlines not otherwise affected by this
scheduling order (doc. no. 16) entered by the court on
December 20, 2013 (as modified by subsequent orders);
(6) All understandings, agreements, deadlines, and
stipulations contained in this pretrial order shall be
binding on all parties unless this order be hereafter
modified by order of the court.
DONE, this the 24th day of November, 2015.
_ /s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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