Patrick v. City of Birmingham, Alabama et al

Filing 125

MEMORANDUM OPINION AND ORDER GRANTING IN PART and DENYING IN PART 109 MOTION for Summary Judgment, GRANTING IN PART and DENYING IN PART 111 MOTION for Summary Judgment, GRANTING 121 MOTION to Strike. Accordingly, counts IV, V, VI, and X of the Administrator's Second Amended Complaint are HEREBY DISMISSED WITH PREJUDICE. Signed by Judge Virginia Emerson Hopkins on 8/29/2012. (JLC)

FILED
2012 Aug-29 PM 01:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
EARL PATRICK as Administrator
and Personnel Representative of the
Estate of Clyde Patrick,
Plaintiff,
v.
CITY OF BIRMINGHAM, et al.,
Defendants.

)
)
)
)
)
)
) Case No.: 2:09-CV-1825-VEH
)
)
)
)

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION AND PROCEDURAL HISTORY
Plaintiff Earl Patrick (the “Administrator”) initiated this civil rights case on

August 1, 2009, as the administrator and personal representative of the estate of
Clyde Patrick (“Mr. Patrick”) against Defendants City of Birmingham (“COB”),
Chief of Police Annetta Nunn (“COP Nunn”), and Chief of Police A.C. Roper (“COP
Roper”),1 in the Circuit Court of Jefferson County, Alabama. (Doc. 1 at Ex. 1 at 1).
On September 14, 2009, Defendants removed the lawsuit to this court on the basis of
federal question and civil rights jurisdiction. (Doc. 1 ¶ 4 (“Because plaintiff alleges

The Administrator subsequently amended his complaint and sued additional
defendants. (Doc. 35).
1

claims arising under a law of the United States, United States District Courts have
original jurisdiction of this action under 28 U.S.C. § 1331 and 1343.”)).
According to the Administrator’s second amended complaint (Doc. 35) and
previous rulings by this court, the following five claims remain pending: (1) count
IV for deliberate indifference against the COB; (2) count V for deliberate indifference
against COP Nunn; (3) count VI for unlawful search and seizure against the COB; (4)
count X for unlawful search and seizure against Gregory Everett (“Officer Everett”),
Scott Hastings (“Officer Hastings”), Emerson Oldham (“Officer Oldham”), Joe
Roberts (“Officer Roberts”), and Karl Wilson (“Officer Wilson”) (collectively, the
“Officer Defendants”); and (5) count XI for excessive force against the Officer
Defendants.2
Pending before the court are three motions: (1) the Motion for Summary
Judgment filed by the COB, COP Nunn, and Officers Hastings, Oldham, Roberts,
and Wilson (collectively, “COB’s Motion”)3 on April 27, 2012; (2) the Motion for
Summary Judgment (Doc. 111) filed by Officer Everett on May 1, 2012 (“Officer

As the court understands the Administrator’s claims, COP Nunn has been
sued both officially and individually, while Officers Everett, Hastings, Oldham,
Roberts, and Wilson are being sued only in their individual capacities.
2

Originally, COP Roper joined in the filing of COB’s Motion, but the
Administrator subsequently sought to dismiss all counts (III and IX) that named him
as a party, which the court did on August 16, 2012. (Doc. 124).
3

2

Everett’s Motion”); and (3) the Motion To Strike Certain Language from the
Defendants’ Reply Briefs (Doc. 121) (the “Administrator’s Strike Motion”) filed on
June 22, 2012.
The parties have filed their evidence and briefs in support of and opposition to
these motions (Docs. 110, 112, 115-18, 122), and they are all now under submission.
For the reasons explained below, COB’s Motion is GRANTED IN PART and
DENIED IN PART, Officer Everett’s Motion is GRANTED IN PART and
DENIED IN PART, and the Administrator’s Strike Motion is GRANTED.
II.

FACTUAL BACKGROUND4
A.

Initial Incident Involving Mr. Patrick

On August 2, 2007, several officers with the COB responded to a call coming
from a location of 2841 42nd Avenue North in Birmingham. AF No. 3.1.5 More

Keeping in mind that when deciding a motion for summary judgment the
court must view the evidence and all factual inferences in the light most favorable to
the party opposing the motion, the court provides the following factual background.
See Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1241
(11th Cir. 2007) (observing that, in connection with summary judgment, a court must
review all facts and inferences in a light most favorable to the non-moving party).
This statement does not represent actual findings of fact. See In re Celotex Corp.,
487 F.3d 1320, 1328 (11th Cir. 2007). Instead, the court has provided this statement
simply to place the court’s legal analysis in the context of this particular case or
controversy.
4

“AF” stands for admitted fact and indicates a fact offered in the brief in the
support of the COB’s Motion (Doc. 110 at 3-8) that the Administrator has admitted
5

3

specifically, the officers received a report that a black man had just jumped into
Takela Gaines’s (“Ms. Gaines”) vehicle. AF No. 3.2.
Ms. Gaines stated that her keys were still in the ignition of her automobile and
that the engine was running. AF No. 3.3. Ms. Gaines also indicated that the suspect
was naked and that she was afraid. AF No. 3.4.
COB officers in Units 120 and 132 arrived on the scene and identified the
black male as Mr. Patrick. AF No. 4.1. The responding officers then requested that
an ambulance transport Mr. Patrick to UAB Hospital. AF No. 4.2.
Birmingham Fire and Rescue Unit #13, Lt. Orlando Reynolds (“Lt. Reynolds”),
was dispatched to the location on a mental patient call. AF No. 5.1. When Lt.
Reynolds arrived on the scene, he noticed a black male standing in the yard holding
a piece of foam. AF No. 5.2.
Lt. Reynolds recalled that two COB officers were already on the scene. AF No.
5.3. Lt. Reynolds reported that Mr. Patrick seemed confused such that when asked
a question, his responses failed to correspond to the questions or to otherwise make
in opposing summary judgment. (Doc. 115 at 2). A number following a decimal
point corresponds to the particular sentence within the numbered statement of facts.
For example, (AF No. 3.2) would indicate the second sentence of paragraph 3 of the
“Statement of the Case” set forth in Doc. 110 is the subject of the court’s citation to
the record. “AAF” stands for additional admitted fact and indicates a fact offered by
the Administrator in opposition to summary judgment (Doc. 115 at 4-10) that
Defendants have admitted on reply. (Doc. 117 at 2-4).
4

sense. AF No. 5.4. Lt. Reynolds stated that Mr. Patrick was subsequently transported
to UAB Hospital. AF No. 5.5.
B.

Fatal Incident Involving Mr. Patrick

Later, in the afternoon of August 2, 2007, Birmingham and UAB Police were
called to the vicinity of the UAB Hospital emergency room about a mentally
disturbed person. AF No. 6.1. The initial call went out as a 78 (mentally disturbed
subject) by COB North Precinct Officers Marcus Robinson (3316) and Desmond
Gray (3157). AF No. 6.2.
Officers Robinson and Gray stated that they were working unit 798 (Hi-Cop
car) when they rode up on a black male standing in the street causing a scene in the
300 block of 19th Street South. AF No. 6.3. Officers Robinson and Gray notified the
dispatcher of their location and the clothing and physical description of the suspect,
and requested a South Precinct unit to assist them with the subject. AF No. 6.4.
South Precinct Unit 322 (Officer Noel Hall and Officer Wilson, a named
defendant) arrived on the scene to assist and advised they would take over the call.
AF No. 7.1. Officers Robinson and Gray stated that the suspect was calm and fully
dressed before they left, but they also heard the suspect say, “Y‘all can go ahead and
shoot me, go ahead and pour gasoline on me!” AF No. 7.2.
When Officers Hall and Wilson arrived on the scene, Captain James Tingle
5

(“Captain Tingle”) of Birmingham Fire and Rescue was there as were two officers,
who were standing on the sidewalk taking with the subject. AF No. 8.1. The senior
officer advised that they had found the patient on 19th Street standing with his hands
over his head. AF No. 8.2. Upon interviewing the subject, it was discovered that he
was Mr. Patrick. AF No. 8.3.
When questioned about what was wrong, Mr. Patrick stated that he did not
need medical aid; instead, he just needed some water to drink. AF No. 8.4. Captain
Tingle asked Mr. Patrick about his medical history. AF No. 8.5. Mr. Patrick
indicated he had a history of diabetes, hypertension, and an issue with anxiety. AF
No. 8.6.
Mr. Patrick further stated he had been in UAB Hospital earlier that day and had
left. AF No. 8.7. Specifically, he stated that he had gone to UAB Hospital because
he did not have any medication. AF No. 8.8. Mr. Patrick never stated definitively
when or why he had decided to leave the hospital; he would begin making
explanations but never quite completed his thoughts. AF No. 8.9. Mr. Patrick did
state that he did not want to go back to the hospital. AF No. 8.10.
Mr. Patrick presented with diaphoresis, i.e., excessive sweating. AF No. 9.1.
Mr. Patrick would have brief periods of anxiety followed by periods where he was
relatively calm. AF No. 9.2. Mr. Patrick consented to the taking of his vital signs
6

and allowed the paramedics to perform a d-stick reading (i.e., for measuring blood
glucose levels) on him. AF No. 9.3. His vitals were within acceptable parameters,
as was his d-stick reading. AF No. 9.4.
Mr. Patrick then asked if the paramedics had any water. AF No. 9.5. Captain
Tingle stated that they did have water available, at which time Mr. Patrick asked if
he could have a drink, stating he had not had anything to eat or drink all day. AF No.
9.6. Captain Tingle was convinced Mr. Patrick would not consent to being
transported back to the hospital. AF No. 9.7.
Mr. Patrick then drank a few cups of water over a span of a few minutes. AF
No. 9.8. After Mr. Patrick had some water and cooled off, his disposition seemed to
improve. AF No. 9.9. Captain Tingle then asked Mr. Patrick if he would allow them
to transport him back to UAB. AF No. 9.10.
A COB rescue unit arrived on the scene. AF 11.1. Captain Tingle did a
pass-on regarding the patient/event history. AF No. 11.2. Personnel from the rescue
unit approached Mr. Patrick, who began to decline transport and appeared to be
anxious. AF Nos. 11.3, 11.4. An effort was made to persuade Mr. Patrick to consent
to transport. AF No. 11.5.
It was a very hot day and Mr. Patrick was sweating very badly. AF No. 12.1.
At times, Mr. Patrick would be very calm, and other times he would be very anxious.
7

AF No. 12.2. Mr. Patrick took off his shirt. AF No. 12.3. Captain Tingle recalled
that, when attempting to get Mr. Patrick into the rescue truck, Mr. Patrick stated, “I
don’t want to get in there. I know what are going to do to me when y’all get me in
there.” AF No. 12.4.
After stating his belief that bad things were going to happen to him, Mr. Patrick
insisted on riding on the rear bumper of the rescue unit. AF No. 13.1. Captain Tingle
informed Mr. Patrick that he could not ride on the bumper. AF No. 13.2. Captain
Tingle then asked Mr. Patrick if he would walk with them to the hospital and Mr.
Patrick agreed. AF No. 13.3. Captain Tingle stated that in addition to the personnel
from the rescue unit there were probably two COB officers with them at this time. AF
No. 13.4. As the rescue authorities started to walk Mr. Patrick to the UAB emergency
room near 4th Avenue South, he started to veer toward the street, but they managed
to get him back on the sidewalk. AF No. 13.5.
Mr. Patrick started to get anxious again, and when they got to 5th Avenue
South, he started to walk toward the street a second time, so the rescue personnel tried
to encourage him again to get on the sidewalk. AF No. 14.1. At this point, Captain
Tingle asked the COB officers to assist because it had reached a point where he was
afraid one of the rescue workers was going to get hurt or someone else was going to
get hurt. AF No. 14.2. More specifically, Captain Tingle requested that the COB
8

officers take over the situation and that the rescue personnel pull back from further
participation. AF No. 14.3.
COB officers tried unsuccessfully to subdue Mr. Patrick with Taser guns. AF
No. 16.1. At some point, Mr. Patrick slipped and fell on the sidewalk and his pants
came off, exposing his genitalia. AF No. 16.2. The Officer Defendants collectively
fired a total of 18 shots from their Taser weapons at Mr. Patrick over a period of less
than 11 minutes. (Doc. 115 at 7 ¶ 21).
Subsequent to the series of shots from multiple stun guns fired by the five
Officer Defendants, Mr. Patrick eventually died. The Jefferson County Coroner
concluded that Mr. Clyde died, by homicide, from “[p]robable arrhythmia secondary
to dilated cardiomyopathy” and that Taser use was a contributory cause in his death.
(Doc. 116-8 at 2 at 0001).
C.

Other Pertinent Facts

The Officer Defendants received training on the use of Tasers and were all
certified by Taser International. AAF No. 2.1; AAF No. 3. Officer Everett had
advanced Taser training and was also a Taser certified training instructor. AAF No.
4.
As a part of their training, the Officer Defendants were warned about using a
Taser against someone exhibiting symptoms of excited delirium or sudden death
9

syndrome. AAF No. 2.2. Those symptoms include profuse sweating, overheating,
bizarre behavior, disorientation, great strength,6 removal of clothing, and
imperviousness to pain. AAF No. 2.3. The Officer Defendants were also trained to
handcuff a subject during a Taser’s initial five second cycle. AAF No. 1.2.
The Officer Defendants admit that Mr. Patrick was sweating profusely, trying
to remove his clothes, appeared to be impervious to pain, and was surprisingly strong.
AAF Nos. 6-8. The Officer Defendants further acknowledge with clarification7 that
Mr. Patrick was not intentionally trying to hurt anyone and that he needed help. AAF
No. 10.
The Officer Defendants were not arresting Mr. Patrick as a suspect in the
commission of a crime. Also, there is no evidence in the record that Mr. Patrick had
a criminal history or that the Officer Defendants were under the impression that they
were dealing with a known criminal offender or violent subject at the scene.

Mr. Patrick was a large man and weighed 306 pounds when he died. (Doc.
116-8 at 2 at 0001).
6

The same witness, Elisa Jordan (“Ms. Jordan”), who indicated that Mr.
Patrick was not intentionally trying to hurt anyone (Doc. 110-4 at 14 at 49), also
testified that Mr. Patrick “broke [her] bracelet” and “still had [her] arm because he
had [her] in a death grip . . . .” (Doc. 110-4 at 5 at 15; id. at 16). Ms. Jordan later
clarified in her deposition that when Mr. Patrick was gripping her so intensely, he did
so with “[t]he strength [of] hanging on for dear life, [like] you are all I have got.” (Id.
at 7 at 23).
7

10

Additionally, no proof appears in the record that Mr. Patrick attempted to flee from
the Officer Defendants. Finally, the video evidence does not show that the Officer
Defendants ever attempted to restrain Mr. Patrick with handcuffs after the first Taser
shot impacted him or when he fell to the ground.
III.

APPLICABLE STANDARDS
A.

Summary Judgment

Summary judgment is proper only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P.
56(c). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). “Once the moving party has properly supported its motion for
summary judgment, the burden shifts to the nonmoving party to ‘come forward with
specific facts showing that there is a genuine issue for trial.’” International Stamp
Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
B.

Qualified Immunity

All individual defendants assert that qualified immunity bars the
11

Administrator’s § 1983 claims brought against them in their personal capacities.
(Doc. 110 at 26-31; Doc. 112 at 14-19).8 “The defense of qualified immunity
completely protects government officials performing discretionary functions from suit
in their individual capacities unless their conduct violates ‘clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003) (internal quotation marks
omitted) (quoting Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003)). “To
receive qualified immunity, a government official first must prove that he was acting
within his discretionary authority.” Id.
This is a two-part test. Under the first step, “the defendant must [prove that he
or she was] performing a function that, but for the alleged constitutional infirmity,
would have fallen within his legitimate job description.” Holloman ex rel. Holloman
v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). Next, the defendant must prove
that he or she was “executing that job-related function.” Id. at 1267. “Once a
defendant establishes that he was acting within his discretionary authority, the burden
shifts to the plaintiff to show that the defendant is not entitled to qualified immunity.”

The page references to this and other documents corresponds with the
CM/ECF page numbering.
8

12

Cottone, 326 F.3d at 1358.9
Until 2009, the Supreme Court had required a two-part inquiry to determine the
applicability of qualified immunity, as established by Saucier v. Katz, 533 U.S. 194,
201 (2001). Under the Saucier test, “[t]he threshold inquiry a court must undertake
in a qualified immunity analysis is whether [the] plaintiff’s allegations, if true,
establish a constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002).
If, under the plaintiff’s allegations, the defendants would have violated a
constitutional right, “the next, sequential step is to ask whether the right was clearly
established.” Cottone, 326 F.3d at 1358 (quoting Saucier, 533 U.S. at 201). The
“clearly established” requirement is designed to assure that officers have fair notice
of the conduct which is proscribed. Hope, 536 U.S. at 739. This second inquiry
ensures “that before they are subjected to suit, officers are on notice their conduct is
unlawful.” Saucier, 533 U.S. at 206.
The “unlawfulness must be apparent” under preexisting law.10 Anderson v.

Here, there is no dispute over whether the individual defendants were all
acting within the scope of their discretionary authority.
9

Only Supreme Court, Eleventh Circuit, and Alabama Supreme Court cases
can “clearly establish” the law in this litigation. See Thomas v. Roberts, 323 F.3d
950, 953 (11th Cir. 2003) (“In this circuit, rights are ‘clearly established’ by decisions
of the Supreme Court, this court, or the highest court of the state in which the case
arose.” (citing Hamilton v. Cannon, 80 F.3d 1525, 1532 n.7 (11th Cir. 1996))).
10

13

Creighton, 483 U.S. 635, 640 (1987) (citations omitted). Therefore, a temporal
requirement exists related to this inquiry. More particularly, a plaintiff must show
that a reasonable public officer would not have believed her actions to be lawful in
light of law that was clearly established at the time of the purported violation. See
Anderson, 483 U.S. at 639 (“[W]hether an official protected by qualified immunity
may be held personally liable for an allegedly unlawful official action generally turns
on the ‘objective legal reasonableness’ of the action[,] assessed in light of the legal
rules that were ‘clearly established’ at the time it was taken[.]”) (emphasis added)
(citation omitted); Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (“If the law at that
time did not clearly establish that the officer’s conduct would violate the Constitution,
the officer should not be subject to liability or, indeed, even the burdens of
litigation.”) (emphasis added); Brosseau, 543 U.S. at 198 (“Because the focus is on
whether the officer had fair notice that her conduct was unlawful, reasonableness is
judged against the backdrop of the law at the time of the conduct.”) (emphasis added);
see also Johnson v. Clifton, 74 F.3d 1087, 1093 (11th Cir. 1996) (“We know of no
[preexisting] case which might have clearly told Clifton that he could not take the
disciplinary action indicated by an investigation which was initiated before he even
knew about the allegedly protected speech, and in circumstances where the public
concern implication was doubtful.”).
14

However, the Saucier framework was made non-mandatory by the Supreme
Court in Pearson v. Callahan, 129 S. Ct. 808, 818 (2009), in which the Court
concluded that, “while the sequence set forth [in Saucier] is often appropriate, it
should no longer be regarded as mandatory.” Thus, “judges of the district courts and
the courts of appeals should be permitted to exercise their sound discretion in
deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.” Id.
Despite the Supreme Court’s modification of Saucier’s analytical process, the
substantive analysis remains unchanged; an officer is entitled to qualified immunity
protection as long as he “could have believed” his conduct was lawful. Hunter v.
Bryan, 502 U.S. 224, 227 (1991). Therefore, to deny immunity, a plaintiff must
affirmatively demonstrate that “no reasonable competent officer would have” acted
as the public official did. Malley v. Briggs, 475 U.S. 335, 341 (1986).
IV.

ANALYSIS
A.

Preliminary Considerations

Despite the Administrator’s willingness to voluntarily dismiss several counts
contained in his second amended complaint, the exact scope of the claims that remain
in this lawsuit still lacks clarity. For example, while the Administrator has indicated
from a pleadings standpoint that he still is pursuing Counts VI and X for unlawful
15

search and seizure against the COB and the Officer Defendants, respectively, in his
opposition brief, he never mentions either one of these counts, much less provides
any legal analysis of them. Instead, the focus of the Administrator’s responsive brief
is a lack of qualified immunity for the individual Officer Defendants on the excessive
force claim (Doc. 115 at 11-18), a lack of qualified immunity for the individual
Officer Defendants on the deliberate indifference claim (id. at 18-19);11 the COB’s
liability (id. at 19-20); a lack of state-agent immunity for the individual Officer
Defendants on the Administrator’s wrongful death claim (id. at 20);12 and the
Administrator’s ability to recover punitive damages from the individual Officer
Defendants. (id. at 20-21).
The Eleventh Circuit has explained the distinction between an excessive force
claim arising out of an illegal stop as opposed to such a claim arising out of a legal
stop:
As their first theory, Plaintiffs assert that because there was no
basis for the stop and no governmental interest at stake, any use of force,
however minimal, was more than reasonably necessary and excessive.

The court notes that no separate count is included in the Administrator’s
pleading for “deliberate indifference” on the part of the Officer Defendants and treats
this section of the opposition brief as additional argument in the area of excessive
force.
11

The Administrator’s complaint does not contain a separate state law claim
for wrongful death.
12

16

Under this Circuit’s law, however, a claim that any force in an illegal
stop or arrest is excessive is subsumed in the illegal stop or arrest claim
and is not a discrete excessive force claim. See Williamson v. Mills, 65
F.3d 155, 158–59 (11th Cir.1995) (holding that a claim that any force
during a false arrest is excessive is subsumed in the false arrest claim
itself because damages for false arrest include damages for use of force
to effect that false arrest). However, as outlined below, a claim for
excessive force during a legal stop or arrest is a discrete claim.
Williamson’s rule makes sense because if a stop or arrest is
illegal, then there is no basis for any threat or any use of force, and an
excessive force claim would always arise but only collaterally from the
illegal stop or arrest claim. The correct analysis is that the excessive
force claim is subsumed in the illegal stop or arrest claim, as recognized
in Williamson, where a plaintiff contends the force was excessive
because there was no basis for any force.
Jackson v. Sauls, 206 F.3d 1156, 1170-71 (11th Cir. 2000) (footnote omitted)
(emphasis added).
Given the Administrator’s silence about the legality of the seizure of Mr.
Patrick and the emphasis on the excessive nature of the force employed, including his
reliance upon excessive force authorities (as opposed to illegal search opinions),13
it appears to the court that the Administrator is conceding that the seizure of Mr.
Patrick was legally made.
Alternatively, the Administrator has waived his right to pursue an illegal
seizure claim because he has offered nothing in opposition to summary judgment to

13

(See generally Doc. 115 at 11-18)
17

substantiate its validity. See, e.g., Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322
(11th Cir. 2001) (finding claim abandoned when argument not presented in initial
response to motion for summary judgment); Bute v. Schuller International, Inc., 998
F. Supp. 1473, 1477 (N.D. Ga. 1998) (finding unaddressed claim abandoned); see
also Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d
1301, 1326 (11th Cir. 2000) (failure to brief and argue issue at the district court is
sufficient to find the issue has been abandoned); Resolution Trust Corp. v. Dunmar
Corp., 43 F.3d 587, 599 (11th Cir. 1995); Hudson v. Norfolk Southern Ry. Co., 209
F. Supp. 2d 1301, 1324 (N.D. Ga. 2001); cf. McMaster v. United States, 177 F.3d
936, 940-41 (11th Cir. 1999) (claim may be considered abandoned when district court
is presented with no argument concerning a claim included in the plaintiff’s
complaint); Road Sprinkler Fitters Local Union No. 669 v. Independent Sprinkler
Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (concluding that a district court “could
properly treat as abandoned a claim alleged in the complaint but not even raised as
a ground for summary judgment”).
Thus, consistent with the above reasoning, summary judgment is GRANTED
on Count VI for unlawful search and seizure against the COB and Count X for
unlawful search and seizure against Officers Everett, Hastings, Oldham, Roberts,
and Wilson.
18

B.

COB’s Motion
1.

COB/COP Nunn (Official Capacity)

The Administrator has sued COP Nunn in both her personal and official
capacities. As the Eleventh Circuit has explained the distinctions between these two
categories:
“Personal-capacity suits seek to impose personal liability upon a
government official for actions he takes under color of state law.
Official-capacity suits, in contrast, ‘generally represent only another way
of pleading an action against an entity of which an officer is an agent.’”
Id. at 165-66, 105 S. Ct. at 3105 (citations omitted) (quoting Monell v.
Department of Social Services, 436 U.S. 658, 690 n. 55, 98 S. Ct. 2018,
2035 n. 55-56 L. Ed. 2d 611 (1978)). In other words, a plaintiff in an
action against a government official in his personal capacity can recover
only against the official’s personal assets. The assets of the
governmental entity are not accessible. The reverse is true in an official
capacity lawsuit. Furthermore, “to establish personal liability in a §
1983 action, it is enough to show that the official, acting under color of
state law, caused the deprivation of a federal right.... [I]n an
official-capacity suit the entity’s ‘policy or custom’ must have played a
part in the violation of federal law.” Id. 473 U.S. at 166, 105 S. Ct. at
3105 (citations omitted).
Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1060 (11th Cir. 1992) (emphasis
added). Accordingly, the court analyzes the merits of the Administrator’s claims
against COP Nunn in her official capacity under the same framework used to assess
the claims brought against the COB.14 The counts at issue in this section are count
Accordingly, any references to COB in this section should also be read to
include COP Nunn in her official role.
14

19

IV for deliberate indifference against the COB and count V for deliberate indifference
against COP Nunn, officially.15
As set forth in the COB’s Motion, the Administrator’s claims under § 1983
against it are governed by the rules established by the Supreme Court in Monell v.
Department of Social Services, 436 U.S. 658 (1978). In order for the COB to be
subjected to § 1983 liability, Monell requires that the Administrator prove, at a
minimum: (1) that the individual defendants’ actions were unconstitutional; and (2)
that a municipal “policy” or “custom” of the COB caused these violations to occur.
See, e.g., Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (“[A]
municipality may be held liable [under section 1983] for the actions of a police
officer only when municipal ‘official policy’ causes a constitutional violation.”).
Establishing official municipal policy in the context of challenged police action
can arise when the record reflects deficient officer training. In City of Canton v.
Harris, 489 U.S. 378, 392 (1989), the Supreme Court acknowledged that “there can
be limited circumstances in which an allegation of a ‘failure to train’ can be the basis
for liability in § 1983,” and held that “the inadequacy of police training may serve
as the basis for § 1983 liability only where the failure to train amounts to ‘deliberate
The allegations set forth in these two counts include references to policy,
training, supervision, investigative, autopsy report, apology, and disciplinary failures.
(See Doc. 35 ¶ 129 a.-h.; id. ¶ 131 a.-h.))
15

20

indifference’ to the rights of persons with the police come into contact.” In other
words, the deliberate indifference standard requires a conscious choice on the part of
a municipality and the individual shortcomings of a police officer or even the
negligent administration of an “otherwise sound program” are insufficient grounds
for maintaining a § 1983 municipal claim. City of Canton, 489 U.S. at 390.
Here, in an effort to show § 1983 policy or custom, the Administrator does not
mention deliberate indifference or otherwise rely upon the City of Canton approach.
Instead, the Administrator contends:
A municipality, by actively endorsing or approving of the conduct
of its employees or officials, may be held responsible for it under the
theory of ratification. See Bannum, Inc. v. City of Ft. Lauderdale, 901
F.2d 989, 998 (11th Cir. 1990) (“[R]atification by the authorized
policymakers of a subordinate's reasoning and decision is chargeable to
the municipality because their decision is final.” (internal quotations
omitted)). For a plaintiff to succeed on a § 1983 claim against a
municipality based on a ratification theory, however, “they must
demonstrate that local government policymakers had an opportunity to
review the subordinate's decision and agreed with both the decision and
the decision's basis....” Thomas v. Roberts, 261 F.3d 1160, 1175 n. 12
(11th Cir. 2001), vacated on other grounds by, 536 U.S. 953, 122 S. Ct.
2653, 153 L. Ed. 2d 829 (2002), reinstated by 323 F.3d 950 (11th Cir.
2003).
It is undisputed that Annetta Nunn was the policymaker for the
police department, had the opportunity to review the investigation of
the defendant police officers’ homicide, and agreed that those action
were within the use of force policy of the police department.
(Doc. 115 at 19-20).
21

The court has studied the Bannum decision, and while the opinion does
acknowledge that ratification of a subordinate’s decision is a manner in which § 1983
municipal liability may sometimes be established, the context of that case is entirely
different than this one.

In particular, Bannum does not involve alleged

unconstitutional conduct by police officers, but rather concerns a dispute over a
zoning decision. See Bannum, 901 F.2d at 990 (“Although the Fort Lauderdale
zoning authorities initially approved Bannum’s operation, this approval subsequently
was withdrawn, and Bannum was unable to relocate its supervised residential
program in Fort Lauderdale.”).
Additionally, the Bannum decision turns upon an application of “the guiding
principles for determining when a single decision may be sufficient to establish
unconstitutional municipal policy under section 1983 . . . .” Bannum, 901 F.2d at 997
(citing City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 125, 108 S. Ct. 915, 924,
99 L. Ed. 2d 107 (1988)). Under Bannum, one of the guideposts is that “[t]he
challenged action must have been taken pursuant to a policy adopted by the official
or officials responsible for making policy in that particular area of the city’s business,
as determined by state law.” Id.
Unlike Bannum, no single decision that later became municipal policy is
challenged here. Instead, the Administrator is objecting to the results of COP Nunn’s
22

investigation into the death of Mr. Patrick. Furthermore, the Administrator has not
pointed to and the court is unaware of any binding authority in which the framework
used in Bannum has been extended to encompass a review of police action by a chief
of police as sufficient conduct to establish municipal policy on the basis of
ratification.
Finally, the Administrator offers no basis as an alternative to Bannum upon
which to link the police conduct to municipal policy. Therefore, the court finds that
Administrator’s efforts to show evidence of an actionable municipal policy or custom
in response to the COB’s Motion are inadequate. Accordingly, the COP’s Motion is
GRANTED with respect to count IV and the official capacity component of count
V of the second amended complaint.
2.

COP Nunn (Personal Capacity)

To the extent that the Administrator seeks to impose personal liability against
COP Nunn for her actions in count V, summary judgment is also GRANTED on the
grounds of qualified immunity. In particular, the Administrator has not shown how
COP Nunn’s actions regarding the investigation into the death of Mr. Patrick were
unconstitutional, see Saucier, 533 U.S. at 201, 121 S. Ct. at 2156 (“Taken in the light
most favorable to the party asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right?”), much less, in violation of clearly
23

established law. Id. (“On the other hand, if a violation could be made out on a
favorable view of the parties’ submissions, the next, sequential step is to ask whether
the right was clearly established.”).
In fact, the court fails to see where the Administrator has offered any evidence
or legal authority in support of an individual claim against COP Nunn based upon her
investigation into the police conduct leading up to Mr. Patrick’s death. Under such
circumstances, this court is under no obligation to address the Administrator’s
perfunctory and underdeveloped attempt to impose personal liability upon COP
Nunn. See Flanigan’s Enters., Inc. v. Fulton County, Ga., 242 F.3d 976, 987 n.16
(11th Cir. 2001) (holding that a party waives an argument if the party “fail[s] to
elaborate or provide any citation of authority in support” of the argument); Ordower
v. Feldman, 826 F.2d 1569, 1576 (7th Cir. 1987) (stating that an argument made
without citation to authority is insufficient to raise an issue before the court).
Furthermore, based upon his brief, the Administrator does not even attempt to
challenge the constitutionality of COP Nunn’s individual conduct from any
perspective other than in her role as an investigator. Therefore, COB’s Motion is
GRANTED on the individual liability portion of count V.
3.

Officers Hastings, Oldham, Roberts, and Wilson

The remaining claim for the court to analyze on summary judgment is count XI
24

for excessive force. This claim is asserted against all the Officer Defendants, i.e.,
Officers Hastings, Oldham, Rogers, and Wilson and Officer Everett,16 in their
individual capacities. Taking the facts in a light most favorable to the Administrator,
in sum the excessive force claim stems from the Officer Defendants’ use of a Taser
on Mr. Patrick, a mentally disturbed patient, multiple times even though he did not
violently fight against being returned to UAB Hospital, but instead only passively
resisted, and despite the fact that Mr. Patrick showed signs that he was suffering from
excited delirium or sudden death syndrome, which conditions the Office Defendants
acknowledge are part of Taser training.17
In support of this excessive force claim, the Administrator relies upon an expert
witness, Philip P. Hayden, Ed.D, a former Supervisory Special Agent with the Federal
Bureau of Investigation, who has opined that the Officer Defendants’ multiple use of
Taser guns against a “passive resister” like Mr. Patrick, who was showing signs of
excited delirium or sudden death syndrome, was in violation of their training on the

As mentioned above in the introduction, Officer Everett separately filed his
own summary judgment motion.
16

As observed in Oliver v. City of Orlando, 574 F. Supp. 2d 1279, 1284 n.8
(M.D. Fla. 2008),“[a]n officer may be held liable under § 1983 even if his
involvement was purely passive because police officers have ‘a duty to intervene
when another officer uses excessive force.’” (quoting Byrd v. Clark, 783 F.2d 1002,
1007 (11th Cir. 1986)), aff’d, 586 F.3d 898 (11th Cir. 2009).
17

25

standards applicable to the deployment of such weapons. (See generally Doc. 116-49
at 1-5). While Officer Hastings, Oldham, Roberts, and Wilson have acknowledged
this expert opinion offered by the Administrator to counter summary judgment, they
have suggested that the court should simply disregard the declaration because it is not
evidence, “but merely an opinion.” (Doc. 117 at 4 ¶ 23).
However, they cite to no authority for this proposition and have not filed any
motion in limine regarding this proof. Additionally, the court is unaware of a blanket
prohibition against the use of expert testimony in excessive force cases, and, to the
contrary, has found two published Eleventh Circuit opinions in which the district
court’s decision to admit testimony on the prevailing standards in the field of law
enforcement from an “use of force” witness at trial was upheld. See, e.g., Samples v.
City of Atlanta, 916 F.2d 1548, 1551 (11th Cir. 1990) (“We find, however, that the
questions leading up to this testimony, and the manner in which the expert answered
the question, properly informed the jury that the expert was testifying regarding
prevailing standards in the field of law enforcement.”); United States. v. Myers, 972
F.2d 1566, 1577 (11th Cir. 1992) (“In light of the questioning and answers given, we
find that, as with the testimony in Samples, Baker properly framed his opinion in
accordance with prevailing police standards.”). Against this backdrop, the court turns
to an assessment of the Office Defendants’ qualified immunity defense to the
26

Administrator’s excessive force count.
a.

Constitutional Inquiry

In Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009), a civil rights lawsuit also
involving the use of Tasers that culminated in death, the Eleventh Circuit set forth the
general standards governing an excessive force claim:
The complaint says that Officers Burk and Fiorino used excessive
and unreasonable force in violation of the Fourth Amendment when they
shocked Oliver with a Taser at least eight, and as many as eleven or
twelve times over a two-minute span, eventually causing his death. The
Fourth Amendment’s freedom from unreasonable searches and seizures
encompasses the right to be free from excessive force during the course
of a criminal apprehension. Graham v. Connor, 490 U.S. 386, 394–95,
109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989); Mercado v. City of Orlando,
407 F.3d 1152, 1156 (11th Cir.2005). We analyze a claim of excessive
force under the Fourth Amendment’s “objective reasonableness”
standard. Graham, 490 U.S. at 388, 109 S.Ct. 1865. In order to
determine whether the use of force is “objectively reasonable,” we
carefully balance “the nature and quality of the intrusion on the
individual’s Fourth Amendment interests” against “the countervailing
governmental interests at stake” under the facts of the particular case.
Id. at 396, 109 S. Ct. 1865 (internal citations and quotations omitted).
We measure the quantum of force employed against these factors—the
severity of the crime at issue; whether the suspect poses an immediate
threat to the safety of the officers or others; and whether the suspect
actively resisted arrest or attempted to evade arrest by flight. Lee, 284
F.3d at 1197–98. Notably, we consider the officers’ actions “from the
perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight,” Kesinger ex rel. Estate of Kesinger v.
Herrington, 381 F.3d 1243, 1249 (11th Cir. 2004), recognizing that
“[t]he 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
27

amount of force that is necessary in a particular situation.” Graham,
490 U.S. at 396–97, 109 S. Ct. 1865.
Oliver, 586 F.3d at 905-06 (emphasis added).
In Oliver, the Eleventh Circuit also summarized a prior Taser shock case that
was decided in 2004, prior to the death of Mr. Patrick:
In Draper v. Reynolds, we addressed the use of a Taser shock in
the course of an arrest. 369 F.3d at 1270. In that case, we concluded
that where the police had used a single Taser shock against a “hostile,
belligerent, and uncooperative” suspect, not causing any serious injury
and leaving the suspect “coherent” and “calmed” shortly after the shock,
the force used was proportionate and reasonable. Id. at 1278. We
observed that under the facts of the case, “the single use of the [T]aser
gun may well have prevented a physical struggle and serious harm to
either [the suspect] or [the officer],” and, therefore, “[u]nder the ‘totality
of the circumstances,’ [the officer’s] use of the [T]aser gun did not
constitute excessive force.” Id.
Oliver, 586 F.3d at 906 (emphasis added). Thus, in Draper, a single Taser shock on
an unruly and hostile plaintiff with a minimal amount of resulting harm did not
constitute excessive force.
In deciding that the plaintiff in Oliver (unlike the one in Draper) had
established a viable excessive force claim, the Eleventh Circuit reasoned:
The justification for the repeated use of Taser force, at least
beyond an initial Taser shock, was minimal. The plaintiff was not
accused of or suspected of any crime, and indeed was not threatened
with arrest or apprehension at any time prior to (or after) the use of
force. The plaintiff posed no immediate threat of danger to officers
beyond the moment of struggle with Officer Burk. He did not act
28

belligerently toward the police officers, and he did not curse or yell at
them. In fact, he was largely compliant and cooperative with the
officers—moving away from their vehicle when instructed, stopping and
talking the first time he was requested to do so (even though not
threatened with detainment), stopping when instructed, providing
requested identification, and only attempting to disregard the officer and
walk away when the officer attempted a “custodial touch” on Oliver's
shoulder.
Moreover, the plaintiff did not pose a grave danger to others.
While Oliver did stop in the street and may have attempted to cross the
street against the light, viewing the facts in a light most favorable to
Oliver, we may infer that Oliver was within the lane that was boxed in
by the police cars, and thus not exposed to traffic during the incident.
This inference is supported by Officer Burk’s statement that the entire
incident occurred in “the safe area,” that “none of this incident took
place in the middle of the intersection,” and that he did not recall any
traffic passing by, honking, or almost striking him or Oliver during the
incident. Finally, Oliver was not actively resisting arrest nor attempting
to evade arrest by flight.
Quite simply, though the initial use of force (a single Taser shock)
may have been justified, the repeated tasering of Oliver into and beyond
his complete physical capitulation was grossly disproportionate to any
threat posed and unreasonable under the circumstances.
Oliver, 586 F.3d at 906-07 (emphasis added).
Comparing the facts of this case to those of Oliver and Draper, the court finds,
similar to Oliver, that the Office Defendants’ firing the Taser on Mr. Patrick multiple
times (eighteen shots over a period of less than eleven minutes), given his nonthreatening behavior and at best only passive efforts at resistance, coupled with the
known risks associated with using a Taser when a person shows signs of excited
29

delirium or sudden death syndrome (which Mr. Patrick was undisputably exhibiting),
“was grossly disproportionate to any threat posed and unreasonable under the
circumstances.” Oliver, 586 F.3d at 907. The court’s conclusion that the Officer
Defendants committed a constitutional violation is bolstered by the Administrator’s
expert evidence indicating that the challenged police action violated law enforcement
standards governing the use of Tasers.
b.

Clearly Established Law Inquiry

Regarding clearly established law, the Eleventh Circuit in Oliver determined
that the officers there violated that qualified immunity component under the so-called
“obvious clarity” test:
In order to determine whether a right is clearly established, we
look to the precedent of the Supreme Court of the United States, this
Court’s precedent, and the pertinent state’s supreme court precedent,
interpreting and applying the law in similar circumstances. McClish v.
Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007). “We have said many
times that ‘if case law, in factual terms, has not staked out a bright line,
qualified immunity almost always protects the defendant.’” Priester v.
City of Riviera Beach, Fla., 208 F.3d 919, 926 (11th Cir. 2000) (quoting
Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir.1997)). However, in
some cases, we may find that the right is clearly established, even in the
absence of case law. One such instance is where the case is one of
“obvious clarity”—i.e., where the office’s conduct “lies so obviously at
the very core of what the Fourth Amendment prohibits that the
unlawfulness of the conduct was readily apparent to [the official],
notwithstanding the lack of fact-specific case law” on point. Vinyard v.
Wilson, 311 F.3d 1340, 1355 (11th Cir.2002) (quoting Lee, 284 F.3d at
1199). Under this test, “the law is clearly established, and qualified
30

immunity can be overcome, only if the standards set forth in Graham
and our own case law inevitably lead every reasonable officer in [the
defendant's] position to conclude the force was unlawful.” Lee, 284
F.3d at 1199 (internal quotation marks omitted).
No decision from the United States Supreme Court, or from this
Court, or from the Florida Supreme Court, has clearly established that
an officer's repeated use of a Taser constituted excessive force under
circumstances like these. Indeed, neither the United States Supreme
Court nor the Florida Supreme Court has even addressed the use of
Tasers in an excessive force inquiry, and this Court has only squarely
done so in one published decision, Draper v. Reynolds, 369 F.3d at
1270, which, as we have said, is not directly on all fours with this case.
The question then boils down to this: whether it would be clear to every
reasonable officer, even in the absence of case law, that the force
used—repeatedly tasering Oliver over a two-minute period without
warning—was excessive under the circumstances.
We agree with the district court”s determination that the force
employed was so utterly disproportionate to the level of force reasonably
necessary that any reasonable officer would have recognized that his
actions were unlawful. The need for force was exceedingly limited.
Again, Oliver was not accused of or suspected of any crime, let alone a
violent one; he did not act belligerently or aggressively; he complied
with most of the officers' directions; and he made no effort to flee.
Oliver, 586 F.3d at 907-08 (emphasis added).
The Administrator has video evidence which captures a partial picture of the
circumstances surrounding the tasing of Mr. Patrick. (Doc. 116 at Ex. H (not
accessible on CM/ECF, but the evidence is on file with the clerk)). The court has
watched these video clips and based upon this visual proof as well as the undisputed
evidence that Mr. Patrick was not accused or suspected of any criminal conduct and
31

was showing signs of excited delirium or sudden death syndrome (conditions as to
which the Officer Defendants had received training cautioning against Taser use),
finds, comparable to Oliver, that “any reasonable officer would have recognized that
his actions [i.e., multiple tasing of Mr. Patrick] were unlawful.” 586 F.3d at 908.
Alternatively, the court concludes that “there are facts that are inconsistent with
qualified immunity being granted [on summary judgment as to excessive force and
that, accordingly,] the case and the qualified immunity issue along with it [should]
proceed to trial.”18 Johnson v. Breeden, 280 F.3d 1308, 1317 (11th Cir. 2002).

For example, Ms. Jordan testified that at some point she “was trying to back
out because the police were surrounding [Mr. Patrick], and he just slung them like
they were rag dolls.” (Doc. 110-4 at 4 at 16). When Ms. Jordan observed this in
relationship to the decision to tase Mr. Patrick is unclear from the record, although
the Officer Defendants’ version of events seems to suggest that this occurred after
they had escalated this situation by using the Taser on Mr. Patrick. (Doc. 110 at 9 ¶
18). Additionally, if this is the correct chronology, then the Taser video evidence
does not substantiate Ms. Jordan’s rag doll recollection. Also, in contrast to Ms.
Jordan’s testimony, other medical personnel on the scene have indicated that they
never “were scared of Mr. Patrick at any time.” (Doc. 116-64 at 4 ¶ 12; Doc. 116-65
at 4 ¶ 13).
18

Another materially disputed fact involves Mr. Patrick’s attempted use of
scissors as a weapon, which is discussed more fully in § IV.D immediately below.
Additionally, the record’s overall lack of clarity concerning the chronology of
events before, during, and after the multiple instances of tasing endured by Mr.
Patrick clouds the court’s ability to reach a resolution of the Officer Defendants’
qualified immunity defense to excessive force on summary judgment without
engaging in improper speculation about when key facts occurred.
32

Therefore, for all these reasons, COB’s Motion is DENIED with respect to the
excessive force count alleged against Officers Hastings, Oldham, Roberts, and
Wilson.
C.

Officer Everett’s Motion

Officer Everett’s Motion is substantially similar in content to the COB’s
Motion. Therefore, in light of the above analysis, the court similarly concludes that
Officer Everett’s Motion is GRANTED on all remaining counts involving him, with
the exception of the Administrator’s claim of excessive force asserted against him
individually as set forth in count XI of the second amended complaint.
Relatedly, Officer Everett’s Motion is also DENIED to the extent that it seeks
summary judgment on the Administrator’s punitive damages claim because that is the
only type of damage which the Administrator can recover against an individual
defendant in a § 1983 excessive force action brought on behalf of a decedent. See,
e.g., Weeks v. Benton, 649 F. Supp. 1297, 1303 (S.D. Ala. 1297) (“This statute has
been interpreted to authorize the recovery only of punitive damages. Thus, the
application of the Alabama wrongful death statute to § 1983 actions through § 1988
would normally [i.e., when individual defendants are involved] limit recoverable
damages to punitive damages only.”) (citations omitted).

33

D.

Administrator’s Strike Motion

The Administrator’s Strike Motion seeks to strike language from the reply
briefs offered in support of COB’s Motion and Officer Everett’s Motion on the basis
that such facts were not asserted in the initial briefs and are improperly raised for the
first time on reply.

While Officer Everett did not file a response to the

Administrator’s Strike Motion, the other remaining Officer Defendants did. (Doc.
122).
Under Appendix II of the court’s uniform initial order, “[t]he moving party
shall list in separately numbered paragraphs each material fact the movant contends
is true and not in genuine dispute, and upon which the moving party relies to
demonstrate that it is entitled to summary judgment.” (Doc. 5 at 16 (emphasis
omitted)). Additionally, “[t]he reply submission, if any, shall consist of only the
moving party’s disputes, if any, with the non-moving party’s additional claimed
undisputed facts.” (Id. at 18). Finally, “[e]ach statement of fact should be supported
by its own evidentiary citation, regardless of the fact that more than one statement of
fact allegedly is supported by the same specific reference to the evidentiary record or
more than one statement of fact is contained in the same numbered paragraph.” (Id.
at 17 n.3).
The Administrator first objects to the reference in the reply briefs that Mr.
34

Patrick attempted to use a pair of scissors as a weapon. (Doc. 121 ¶ 2). In
opposition, Defendants contend that they offer this fact in response to the
Administrator’s position that “[t]here is no evidence that Patrick was a threat to the
public.” (Doc. 115 at 6 ¶ 11).
Defendants also indicate that the statements made in paragraphs 17 and 20 of
the initial brief in support of the COB’s Motion are sufficient to allow the court to
consider Mr. Patrick’s attempted use of scissors as a weapon as a fact for purposes
of summary judgment.
The court disagrees. Paragraph 17 states that:
One UAB nurse was trying to assist with Patrick, and that is when
Patrick grabbed the nurse’s scissors and refused to let go. Ms. Jordan
stated they were finally able wrestle the scissors away from Patrick’s
hands.
(Doc. 110 at 8-9 ¶ 17). Paragraph 20 makes no mention of the scissors.
Finally, the evidentiary citations upon which Defendants rely (Doc. 122 at 2-3
¶ 4) do not unanimously confirm that Mr. Patrick attempted to use the scissors as a
weapon. (See Doc. 110-4 (Elisa Jordan Depo.) at 4 at 11 (no reference to Mr.
Patrick’s use of scissors as a weapon); Doc. 110-5 (Captain Tingle Depo.) at 9-10 at
32-33 (same); cf. Doc. 110-7 (Office Wilson Depo.) at 6 at 19 (describing Mr.
Patrick’s being “in a kind of fighting position to ward off anybody that was going to

35

come near him . . . .”)).
In fact, Captain Tingle’s testimony indicates that the scissors grabbed by Mr.
Patrick were bandage ones as opposed to pointed surgical scissors. (Doc. 110-5 at
10 at 33). Other witnesses, like Ms. Jordan and Officer Everett, were unsure if Mr.
Patrick ever even got possession of the scissors. (Doc. 110-4 at 6 at 22 (“Well, he
might not have got them [i.e., the scissors], but I know he was reaching for them.
That’s all I know.”); (Doc. 110-2 at 6 at 19 (“I remember somebody else yelling he’s
going for the scissors or he’s got my scissors . . . I don’t know if he ever did actually
have them.”)).
Still other witnesses, like nurses Brandy Creel and Sonya Skinner, affirmatively
state that they never saw Mr. Patrick holding any scissors. (Doc. 116-64 at 4 ¶ 12;
Doc. 116-65 at 4 ¶ 13). Therefore, even if the evidence is not appropriately
procedurally barred by non-compliance with Appendix II, from a substantive
standpoint, the proof pointed to by Defendants does not undisputedly establish that
Mr. Patrick attempted to use scissors as a weapon. Accordingly, for all these reasons,
the first portion of the Administrator’s Strike Motion is GRANTED.
Regarding the second part of the Strike Motion, the Administrator challenges
Defendants’ factual position that, based upon the number of puncture wounds found
on Mr. Patrick’s body, the Officer Defendants only effectively used the Taser on Mr.
36

Patrick twice. (Doc. 121 ¶ 3). Defendants maintain that they offer this evidence to
refute the Administrator’s summary of the Taser usage data totaling 18 fires at Mr.
Patrick. (Doc. 122 ¶ 3; see also Doc. 115 at 7 ¶ 21 ).
Defendants also rely on paragraph 20 of their initial brief to show that they are
not stating any new facts in this area as part of their reply. Paragraph 20 provides:
On August 3, 2007, Dr. Robert M. Brassie, M.D. is the Chief
Coroner/Medical Examiner for the Jefferson County, Alabama
performed an autopsy on Clyde. Dr. Brassie testified in his deposition
that the cause of death of Clyde as probably arrhythmia secondary to
dilated cardiomypothy (enlarged heart) due to all events occurring at the
scene that day. (Brassie deposition, p.45, 126, (Morrow Deposition,
Plaintiff’s Exh. 7). Dr. Brassie testified that no asphyxiation or
positional asphyxiation of Clyde took place. (Brassie deposition pg.
125).
(Doc. 110 at 9-10 ¶ 20). Thus, paragraph 20 makes no mention of Robert M. Brissie,
M.D.’s (“ Dr. Brissie”)19 testimony relating to Tasers or Taser puncture wounds found
on Mr. Patrick’s body, and these facts stated in reply are newly stated ones.
Additionally, the facts offered by Defendants relating to Taser puncture
wounds do not dispute that 18 shots were fired at Mr. Patrick. Finally, even if Dr.
Brissie’s testimony can be read, as Defendants maintain, to conclusively confirm that

The deposition transcript reflects the correct spelling to be “Brissie” as
opposed to “Brassie”. (Doc. 110-10 at 2 at 1). Dr. Brissie “was the division head for
the forensic pathology division and chief coroner and medical examiner of Jefferson
County” in August 2007. (Doc. 110-10 at 4 at 9).
19

37

the 18 fires from the weapons only resulted in five puncture wounds and two fully
functioning Taser shots, they still have not shown through Dr. Brissie’s opinion
testimony that the pain endured by Mr. Patrick was, as a result, merely minimal (see
Doc. 110-10 at 33 at 125 (“And I think he received tasers, and I think that would be
painful and cause release of epinephrine [i.e., adrenaline], norepinephrine.”)) or that
Taser use was medically unrelated to Mr. Patrick’s death. (See Doc. 116-8 at 2 at
0001 (listing “CAUSE OF DEATH” as “Probable arrhythmia secondary to dilated
cardiomyopathy”;

“MANNER

OF

DEATH”

as

“Homicide”

and

“CONTRIBUTORY” as “Taser use”)). Accordingly, for all these reasons, the
second section of the Administrator’s Strike Motion is also GRANTED.
V.

CONCLUSION
Thus, based upon the foregoing analysis, COB’s Motion is GRANTED IN

PART and DENIED IN PART, Officer Everett’s Motion is GRANTED IN PART
and DENIED IN PART, and Plaintiff’s Strike Motion is GRANTED. Accordingly,
counts IV, V, VI, and X of the Administrator’s second amended complaint are
HEREBY DISMISSED WITH PREJUDICE. By separate order, the court will set
the sole surviving count XI, i.e., the Administrator’s excessive force claim against the
Officer Defendants in their individual capacities, for a pretrial conference.

38

DONE and ORDERED this the 29th day of August, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

39