Felder v. Lukima
ORDER DENYING SUMMARY JUDGMENT; the Court accepts the magistrate judge's recommendation and the 30 Motion for Summary Judgment is denied; the case is again referred to the magistrate judge as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 12/12/14. (SPT )
2014 Dec-12 PM 03:58
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
Case No. 4:10-cv-02355-CLS-TMP
ORDER DENYING SUMMARY JUDGMENT
The magistrate judge filed his report and recommendation1 on September 9,
2014, recommending that the court deny the defendant’s motion for summary
judgment filed July 21, 2014.2 The defendant filed his objections to the report and
recommendation on September 23, 2014. Pursuant to 28 U.S.C. § 636(b)(1)(B) and
Fed. R. Civ. P. 72, the court has reviewed and considered de novo the report and
recommendation, the objections to it, and other materials in the court file. The
objections are hereby OVERRULED, and the report hereby is ADOPTED ,and the
recommendation is ACCEPTED.
Doc. no. 36.
Doc. no. 30.
Although defendant objects to several portions of the report and
recommendation, the most important one is the finding that factual disputes remain
for a factfinder to resolve as to whether Officer Lukima used excessive force by
punching, hitting, striking, or kicking plaintiff after he was restrained and handcuffed
on the floor. Defendant contends that plaintiff testified in his deposition that Lukima
did not hit, strike, or kick him. This is a misreading of plaintiff’s testimony.
Plaintiff’s deposition testimony, which must be accepted as true for purposes
of the defendant’s motion for summary judgment, is fairly clear. As plaintiff was
walking out of his cell with a cellphone in his hand, Officer Lukima approached and
demanded he surrender the phone as contraband. Instead, plaintiff threw the phone
“upstairs” to the second tier of cells in the cellblock.3 When he did so, Officer
Lukima “tried to tackle” plaintiff.4 There was a short “tussle,” ending with Officer
Lukima telling plaintiff to stand in the hallway.5 Plaintiff described the “tussle” as,
“[i]t’s like he’s trying to take me to the ground, but I’m not going to let you take me
to the ground.” When the “tussle” ended, plaintiff went to the hallway as instructed
by Officer Lukima. Plaintiff saw another officer, Officer Thompson, with his
cellphone, talking to Officer Lukima. Then, Officer Lukima came through the door
Doc. no. 35-1, at 54.
Id. at 55.
Doc. no. 35-2, at 56-57.
into the hallway “and swung and punched [plaintiff] in the face.”6 The blow struck
plaintiff “in the left side of the face,” “[l]ike on the side of [plaintiff’s] nose right up
underneath the eye.”7 Officer Lukima then grabbed plaintiff by the shirt and pants
and threw him to the floor.8
After being taken to the floor by Officer Lukima, other officers arrived and
began punching and kicking plaintiff. Officer Lukima was still holding onto
plaintiff’s left arm, but had it bent upward. Plaintiff gave the following testimony:
Q. So it’s your belief, although you don’t know for sure, but it’s your
belief that it was some other officers who were striking you, not Officer
A. I know all of them was striking me. He had already struck me when
he tried to tackle me and tried to punch me.
Q. You’ve already described that.
A. And tried to break my shoulder, but now, the kicking in the head
and the ribs and all that, no, he couldn’t have did that and tried to cuff
me. No, he couldn’t have did that.
Doc. no. 35-2, at 96. Later, plaintiff again indicated that Officer Lukima also struck
him while he was being punched and kicked by a group of officers:
Q. And so it’s your testimony that once you were placed on the ground,
when he grabbed your shirt and your pants and put you on the ground
Id. at 74.
Id. at 81.
Id. at 88-90.
and was trying to handcuff you, it’s your belief that it was some other
officers who were striking you, not Officer Lukima, because it would be
very difficult for him to do both; is that correct?
A. It wouldn’t be difficult for him to do both.
Q. I thought you said he had your arm -A. He had my arm.
Q. He was trying to handcuff you.
A. Okay. But you’ve got one arm. You’ve got one of your hands on
one of my arms. That leaves you with another arm. My right arm is
already back. I’m trying to let them cuff me, but my left arm is way up
Q. Okay. So he’s trying to cuff you.
A. Yeah. He’s trying to cuff me. We’ll say that.
Q. Okay. So I thought you said earlier, and we can look at the record,
but that it was your thought that it was the other officers that were
striking you. You don’t know who it was -A. I said I knew for a fact all of them was hitting me, but it would be
hard for him to do it with one hand. So I mean, he can’t just do all of
this by himself. No, he can’t.
Doc. no. 35-2, at 99-100. It simply is not true that plaintiff testified affirmatively that
Officer Lukima did not strike him during the melee on the floor. He repeatedly
testified that all of the officers were striking him. It is true that plaintiff testified that
he did not see Officer Lukima strike him, but this was simply because he was being
restrained face down on the floor and could see none of the officers striking him.9 “I
didn’t see anyone during this time until I was lifted up and being escorted to the
office.”10 It reads far too much into the testimony to say that plaintiff affirmatively
stated that he was not struck by the defendant.
It is true that, later still in his deposition testimony, he said that, “Other than
trying to break my shoulder, no, he [Officer Lukima] didn’t hit me.”11 This answer
was in response to the question, “But when you were on the ground, you cannot say
that Officer Lukima struck you.”12 In light of his earlier testimony that all of the
officers struck him, this does nothing more than raise a question of credibility that
must be resolved by the factfinder. In any event, he clearly described a use of force
by Officer Lukima “trying to break [his] shoulder.” Whether this is an exaggeration
or otherwise unbelievable is not something that can be resolved on summary
judgment. Likewise, the fact that plaintiff has, at various times, provided different
versions of Officer Lukima’s role in the alleged assault does nothing more than raise
credibility issues that must be resolved by the factfinder. The court must view the
facts favorably to the non-moving plaintiff at this stage of the case.
Id. at 101.
Id. at 102.
Doc. no. 35-3, at 107.
Defendant seems to advance the argument that plaintiff’s theory of liability has
shifted from an excessive force claim to a “failure to protect” claim that had not been
pleaded by plaintiff. He basis this on some evidence suggesting that Officer Lukima
restrained plaintiff while other officers punched and kicked him. As indicated above,
defendant stresses those parts of plaintiff’s testimony in which he says that Officer
Lukima did not hit him. Officer Lukima argues that, absent evidence that he hit or
kicked plaintiff, evidence that he did nothing more than restrain plaintiff while other
officers hit and kicked him states a claim for “failure to protect,” not use of excessive
The court disagrees. The fundamental constitutional right at stake under either
view of the evidence is the right of plaintiff to be free from cruel and unusual
punishment under the Eighth Amendment. Even assuming the evidence to be that
Officer Lukima only restrained plaintiff (i.e., held him to the floor with plaintiff’s left
arm raised behind plaintiff’s back) while other officers were hitting and kicking him,
such still would establish a violation of the Eighth Amendment prohibition. An
officer who significantly assists the unconstitutional application of unnecessary force
by restraining a prisoner while others beat him is equally liable for the violation of
the Eighth Amendment as those who actually delivered the blows.
The Eleventh Circuit Court of Appeals has held officers on the scene of
an excessive-force violation accountable where the officers, by virtue of
their presence on the scene, must have either directly participated in
striking the plaintiff or clearly had the opportunity to intervene. See
Velazquez v. City of Hialeah, 484 F.3d 1340, 1342 (11th Cir.2007)
(holding that, although the plaintiff could not identify which officer beat
him, the two officers’ presence at the beating would permit the jury to
conclude that both officers were liable, either for excessive force or
failure to intervene). In other words, under this line of cases, each
defendant, by being present, necessarily committed a constitutional
Luster v. Ledbetter, 647 F. Supp. 2d 1303, 1307 (M.D. Ala. 2009). Thus, whether
there is evidence that Officer Lukima himself actually struck or kicked plaintiff is
immaterial where plaintiff clearly testified that the defendant restrained him while
other officers assaulted him.
The court agrees with the magistrate judge that the defendant’s motion for
summary judgment must be denied because there remain genuine issues of material
fact concerning the alleged assault of plaintiff and Officer Lukima’s role in it.
Accordingly, the court ACCEPTS the magistrate judge’s recommendation, and the
motion for summary judgment is DENIED.
The case is again referred to the magistrate judge to hold an evidentiary hearing
and to file a report and recommendation with proposed findings of fact and
conclusions of law for resolution of plaintiff’s Eighth Amendment claim.
The Clerk is DIRECTED to mail a copy of this Order to plaintiff.
DONE and ORDERED this 12th day of December, 2014.
United States District Judge
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