Crutcher v. Athens Police Department et al

Filing 84

MEMORANDUM OPINION as more fully set out in therein. Signed by Judge C Lynwood Smith, Jr on 10/31/2014. (AHI)

FILED
2014 Oct-31 PM 12:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ORLANDO)
)
)
)
Plaintiff,
)
)
vs.
)
ATHENS POLICE DEPARTMENT; )
WAYNE HARPER; RANDY )
VICKERS; and THE CITY OF )
)
ATHENS,
COURTNEY
CRUTCHER,

Civil Action No. CV-10-S-1176-NE

Defendants.
MEMORANDUM OPINION
Courtney Orlando Crutcher commenced this action as a pro se plaintiff,1 but
now is represented by an attorney. His original complaint alleged numerous claims
against Athens, Alabama, Police Officer Randy Vickers, the City of Athens, Alabama,
the Athens Police Department, and Athens Police Chief Wayne Harper. The
gravamen of his claims was that Officer Vickers choked him when effecting an arrest

1

While all complaints, including plaintiff’s pro se complaint, refer to plaintiff as “Courtney
Orlando Crutcher,” see doc. no. 32 (Second Amended Complaint); doc. no. 26 (Amended
Complaint); and doc. no. 1 (Complaint), plaintiff’s response in opposition to summary judgment
refers to plaintiff as “Cordney Orlando Crutcher,” and even notes that references to “Courtney” are
incorrect. See doc. no. 79 (Opposition to Summary Judgment), at 10 (“he witnessed ‘an Athens City
police officer choke Courtney [sic] Crutcher while he was in handcuffs.’”) (quoting doc. no. 1
(Complaint), at 7) (alteration in original). Because the iteration was handwritten atop the first
document filed in this case, and, therefore, is in the official caption of this case, the court will call
plaintiff Courtney Orlando Crutcher, where necessary, with apologies if this is incorrect.

on December 8, 2008.2 All defendants except the City of Athens responded to the
complaint by filing motions to dismiss.3 The court granted the motions filed by
Police Chief Wayne Harper and the Athens Police Department, but denied the motion
filed by Officer Randy Vickers.4 Thereafter, plaintiff twice amended his complaint,5
and Vickers and the City of Athens filed motions to dismiss the amended pleadings.6
The court granted the motions in part, and dismissed several of plaintiff’s claims.7
2

Doc. no. 1 (Complaint), at ECF 5-6. “ECF” is the acronym for “Electronic Case Filing,”
a system that allows parties to file and serve documents electronically. See Atterbury v. Foulk, No.
C-07-6256 MHP, 2009 WL 4723547, *6 n.6 (N.D. Cal. Dec. 8, 2009). Bluebook Rule 7.1.4 permits
citations to the “page numbers generated by the ECF header.” Wilson v. Fullwood, 772 F. Supp. 2d
246, 257 n.5 (D.D.C. 2011) (citing The Bluebook: A Uniform System of Citation R. B. 7.1.4, at 21
(Columbia Law Review Ass’n et al., 19th ed. 2010)). Even so, the Bluebook recommends “against
citation to ECF pagination in lieu of original pagination.” Wilson, 772 F. Supp. 2d at 257 n.5. Thus,
unless stated otherwise, this court will cite the original pagination in the parties’ pleadings. When
the court cites to pagination generated by the ECF header, it will, as here, precede the page number
with the letters “ECF.”
3

See doc. no. 8 (Motion to Dismiss by Athens Police Department); doc. no. 10 (Motion to
Dismiss by Wayne Harper); doc. no. 11 (Motion to Dismiss by Randy Vickers).
4

Doc. no. 23 (Memorandum Opinion and Order Dismissing Fewer than All Defendants).

5

See doc. no. 26 (Amended Complaint); doc. no. 32 (Second Amended Complaint). Plaintiff
first filed motions for leave to amend his complaint, see doc. no. 26 (Motion for Leave to File
Amended Complaint); doc. no. 33 (Motion for Leave to File Second Amended Complaint), which
this court granted. See doc. no. 28 (Order Granting Motion for Leave to Amend); Text Order dated
April 19, 2011. The Second Amended Complaint “incorporates all paragraphs from [the] previous
complaint and amended complaint.” Doc. no. 32 (Second Amended Complaint), ¶ 1 (alteration
supplied). Thus, the court will cite to portions of the amended complaint when describing the claims
asserted against Officer Vickers and the City of Athens.
6

See doc. no. 34 (Third Motion to Dismiss by Randy Vickers); doc. no. 36 (Motion to
Dismiss by the City of Athens). Officer Vickers had already filed a motion to dismiss the first
amended complaint, see doc. no. 31 (Second Motion to Dismiss by Randy Vickers), but this court
found his motion moot in light of plaintiff’s second amended complaint. See Text Order dated April
19, 2011.
7

Doc. no. 54 (Order Dismissing Fewer than All Claims). The dismissed claims included:
failure to intervene, unlawful search and seizure, denial of due process, deliberate indifference,
2

The only claims that remain pending against defendants Vickers and City of Athens
are a federal claim for excessive force, and supplemental state-law claims for assault
and battery and outrage.8 The action presently is before the court on defendants’
motion for summary judgment.9
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that a court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
other words, summary judgment is proper “after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v.
City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the nonmoving party are not unqualified, however. “[A]n inference is not reasonable if it is
negligent supervision, and inadequate training.
8

Id.

9

Doc. no. 76 (Motion for Summary Judgment).
3

only a guess or a possibility, for such an inference is not based on the evidence, but
is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d
1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat
summary judgment unless that factual dispute is material to an issue
affecting the outcome of the case. The relevant rules of substantive law
dictate the materiality of a disputed fact. A genuine issue of material
fact does not exist unless there is sufficient evidence favoring the
nonmoving party for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration
supplied). see also Saucier v. Katz, 533 U.S. 204, 201 (2001) (“A court required to
rule upon the qualified immunity issue must consider . . . this threshold question:
Taken in the light most favorable to the party asserting the injury, do the facts alleged
show the officers conduct violated a constitutional right?”) (emphasis supplied).
II. SUMMARY OF FACTS10
10

The following statements are the “facts” for summary judgment purposes only, and may
not be the actual facts. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400
(11th Cir. 1994). The court has gleaned these statements from the parties’ submissions of facts
claimed to be undisputed, their respective responses to those submissions, and the court’s own
examination of the evidentiary record. All reasonable doubts about the facts have been resolved in
favor of the nonmoving party. See Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220,
1224 (11th Cir. 2002). Note well, however, that plaintiff failed to include his disputes with
defendants’ claimed undisputed facts, organized in separately numbered paragraphs that coincide
with those of defendants’ claimed undisputed facts as required by the Uniform Initial Order entered
on June 30, 2010. See doc. no. 14, at 16. Instead, he provided a “Narrative Statement of Disputed
Facts.” See doc. no. 79 (Opposition to Summary Judgment), at 2-4. Although plaintiff does dispute
some contentions contained in defendants’ claimed undisputed facts, he does not address all of them.
Thus, those facts that defendants contend are undisputed, which plaintiff did not contest, will be
deemed admitted for summary judgment purposes.
4

Randy Vickers has been employed as a police officer for the City of Athens,
Alabama, since February 2, 2005.11 He first encountered plaintiff in the Spring of
2008, when he stopped plaintiff’s automobile on Sanderfer Road in Athens, because
plaintiff was not wearing a seatbelt.12 Vickers asked plaintiff for his driver’s license,
but he did not have one.13 Plaintiff was traveling with a licensed female passenger
at the time, however, so Vickers issued only a verbal warning to plaintiff, rather than
a written citation, and allowed the female to drive the vehicle away from the scene
with plaintiff as her passenger.14
Officer Vickers’s next encounter with the plaintiff occurred on the evening of
December 8, 2008.15 Vickers was on duty in his police cruiser, traveling south on
Hines Street,16 when he passed plaintiff, who was northbound on the same public
roadway.17 Plaintiff was exceeding the speed limit.18 After passing Officer Vickers,
plaintiff pulled into the parking lot of T&T Grocery (a convenience store), exited his
vehicle, walked to the front door of the store, and began talking to a friend, David

11

Doc. no. 77-3 (Vickers Deposition), at 8-9.

12

Id. at 29-30.

13

Id. at 39-40.

14

Id. at 40.

15

Id. at 32; doc. no. 73-1 (Plaintiff Deposition), at 35, 44.

16

Doc. no. 77-3 (Vickers Deposition), at 34-35, 44.

17

Id. at 34.

18

Id. Officer Vickers registered plaintiff’s speed with a radar gun. Id. at 35.
5

Kirby.19 About thirty second later, Officer Vickers pulled into the parking lot and
activated his lights.20 He then walked up to plaintiff and asked for his driver’s
license.21 Once again, plaintiff did not have a license,22 but he provided his Social
Security number at Vickers’s request.23 Vickers called the police dispatch operator
and ascertained through the use of plaintiff’s Social Security number that his driver’s
license had been revoked.24 He then called for a wrecker to tow plaintiff’s automobile
to an impoundment facility.25 That upset plaintiff, and Vickers asked him to sit in his
patrol cruiser while he conducted an inventory search of plaintiff’s vehicle prior to
its impoundment.26 Plaintiff complied, but Vickers was unable to locate a tag receipt
while searching the automobile.27 He allowed plaintiff to retrieve the receipt from his
vehicle.28

19

Doc. no. 73-1 (Plaintiff Deposition), at 45-46.

20

Doc. no. 73-3 (Vickers Deposition), at 36.

21

Doc. no. 73-1 (Plaintiff Deposition), at 46. Officer Vickers alleges that, “as [he was]
pulling into the gas station, [plaintiff] jumped out of his car and ran and tried to duck down behind
a truck that was at the gas pump.” Doc. no. 77-3 (Vickers Deposition), at 36.
22

Doc. no. 73-3 (Vickers Deposition), at 38. Plaintiff testified that, when Vickers asked him
for his license, he told Vickers, “you don’t know that that was me driving the truck or anything.”
Doc. no. 73-1 (Plaintiff Deposition), at 50.
23

Doc. no. 73-3 (Vickers Deposition), at 38.

24

Id. at 38.

25

Id. at 40.

26

Id. at 40-41

27

Id. at 43.

28

Id.
6

After obtaining the tag receipt, Officer Vickers attempted to issue two written
citations — speeding, and driving while revoked — but plaintiff refused to sign the
citations, saying that he was “not going to sign shit.”29 Vickers told plaintiff that he
would have to take him to jail if he did not sign the tickets.30 That further upset
plaintiff, and he threatened to kill Vickers when he saw him “out of [his] uniform.”31
Vickers radioed for backup, and told plaintiff to turn around and place his
hands behind his back.32 Plaintiff did not immediately comply but, instead, continued
to curse Vickers and threaten him. Vickers asked plaintiff to turn around several
more times.33 Finally, after approximately eight such requests, plaintiff turned around
and allowed Vickers to handcuff him.34 While Vickers was doing so, he rhetorically
asked: “what [are] you going to do when you see me?”35
Vickers opened the back door to his police cruiser and instructed plaintiff to
sit inside, but he refused to do so.36 Vickers ordered plaintiff several more times, but
plaintiff refused to comply, and continued to threaten Vickers.37 What happened next
29

Doc. no. 73-3 (Vickers Deposition), at 46-47.

30

Id. at 47.

31

Id. at 48 (alteration supplied).

32

Id. at 48, 50.

33

Id. at 48.

34

Id. at 49.

35

Doc. no. 77-1 (Plaintiff Deposition), at 55 (alteration supplied).

36

Doc. no. 77-3 (Vickers Deposition), at 49.

37

Id. at 52-53.
7

is contested.
Defendants contend that Officer Vickers applied a so-called “brachial plexus
clavicle notch nerve pressure point control technique” to compel plaintiff’s
compliance with his directives.38 That control technique is administered by pressing
downward on the shoulder, between the neck and the clavicle.39 Through its use,
Vickers was able to place plaintiff in the backseat of the patrol car without further
incident.40
Plaintiff, on the other hand, contends that Vickers “took his forearm and he put
it in [plaintiff’s] neck,” and Vickers “had his body weight on” plaintiff’s neck while
plaintiff’s “back went against the car.”41 Plaintiff blacked out and, when he regained
consciousness, his “head was in the floorboard [of the police car] and [his] right foot
was on the window.”42
The tow-truck and backup police officer did not arrive until after plaintiff had

38

Doc. no. 77-3 (Vickers Deposition), at 53. Prior to the incident with plaintiff, Vickers
attended the police academy for twelve weeks, where he was trained on several restraint techniques,
including handcuffing and pressure point control techniques such as the “brachial plexus clavicle
notch nerve pressure point control technique.” Id. at 8-10, 53-54, & 107-08.
39

Id. at 127-28.

40

Id. at 54.

41

Doc. no. 77-1 (Plaintiff Deposition), at 59 (alterations supplied). Plaintiff originally
testified that Vickers “took both his hands and choked [plaintiff].” Id. at 56 (alterations supplied).
He later clarified, however, that Vickers did not squeeze plaintiff’s throat with his hands, he only put
his forearm against plaintiff’s throat. Id. at 65-66.
42

Id. at 59 (alterations supplied).
8

been placed in Vickers’s police cruiser.43 Vickers asked the backup officer to
complete the impoundment of plaintiff’s automobile, while he transported plaintiff
to the police department for booking.44 Plaintiff’s grandmother, Dorthy Malone,45
who had arrived at some point, asked Vickers if she could take plaintiff’s vehicle,
rather than having it towed, but Vickers denied her request, saying that, “if she would
have been there earlier before the wrecker was called” he would have allowed her to
drive the car away from the scene.46
While Vickers filled out the booking paperwork at the police department,
plaintiff continued to threaten him, saying he was “going to get [Vickers] when [he’s]
not in [his] uniform, [and that] he knows where [Vickers] live[s], knows [Vickers]
goes to Walmart late at night, [and] knows [Vickers’s] family.”47 Plaintiff eventually
was charged with speeding, driving while revoked, harassment, resisting arrest, and
disorderly conduct.48 The day after his arrest, plaintiff visited the doctor for a stiff
neck, and was diagnosed with a muscle sprain.49 Later, in June of 2009, plaintiff
43

Doc. no. 77-3 (Vickers Deposition), at 54.

44

Id. at 55.

45

Dorthy Malone did not witness the confrontation between plaintiff and Officer Vickers,
but she received several telephone calls “telling her about what happened, so she left from [her]
house and came to the store.” Doc. no. 77-1 (Plaintiff Deposition), at 74.
46

Id. at 68; doc. no. 77-3 (Vickers Deposition), at 55.

47

Doc. no. 77-3 (Vickers Deposition), at 61 (alterations supplied).

48

Id. at 33.

49

Doc. no. 77-1 (Plaintiff Deposition), at 91-92.
9

observed Officer Vickers “reenact choking [plaintiff] like from the incident at the
[T&T] store” in his police cruiser.50
In the Winter of 2009, Officer Vickers was near a Jiffy gas station in Athens
when he heard loud music coming from a car, and saw plaintiff “throwing his hands
up at [Vickers].”51 Vickers attempted to give plaintiff a written citation for a violation
of the city’s noise ordinance, but plaintiff refused to sign it, telling Vickers that “he’s
not signing shit . . . to keep his fucking license, and [that Vickers didn’t] have him
stopped because [he] didn’t have [his] blue lights on.”52 Plaintiff then got into his
automobile and was attempting to leave, but Vickers pulled out his taser and ordered
plaintiff out of the vehicle.53 Plaintiff complied, and Vickers arrested him for
disorderly conduct.54
III. DISCUSSION
Plaintiff alleges three claims against defendants: a federal claim, asserted
under 42 U.S.C. § 1983, that Vickers employed excessive or unreasonable force in
violation of rights guaranteed to plaintiff by the Fourth Amendment to the United

50

Id. at 87 (alterations supplied).

51

Doc. no. 77-3 (Vickers Deposition), at 83 (alterations supplied).

52

Id. at 83-84 (alterations supplied).

53

Id. at 84.

54

Id. at 82, 84.
10

States Constitution;55 and supplemental state-law claims for assault and battery and
outraged, asserted under 28 U.S.C. § 1367.56
A.

Qualified Immunity for Plaintiff’s Excessive Force Claim
Defendants contend that the doctrine of qualified immunity shields Officer

Vickers from liability for plaintiff’s Fourth-Amendment excessive-force claim. That
doctrine provides “immunity from suit to governmental officials performing
discretionary functions as long as ‘their conduct violates no clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
Green v. Brantley, 941 F. 2d 1146, 1148 (11th Cir. 1991) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). The purpose of the doctrine is to allow
government officials to carry out their discretionary duties without the fear of
personal liability or harassing litigation. Anderson v. Creighton, 483 U.S. 635, 638
(1987); Lee v. Ferraro, 284 F.3d 1188, 1193–94 (11th Cir. 2002). It protects from
55

See doc. no. 26 (Amended Complaint), ¶¶ 13-14. In relevant part, the Fourth Amendment
provides that: “The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. amend. IV
(1791) (emphasis supplied). The “incorporation” of the Fourth Amendment into the Due Process
Clause of the Fourteenth Amendment and, thereby, its application to the various states, was finalized
by the Supreme Court’s decision in Mapp v. Ohio, 367 U.S. 643 (1961). See also, e.g., Ker v.
California, 374 U.S. 23 (1963); Wolf v. Colorado, 338 U.S. 25 (1949). Plaintiff’s complaint does
not explicitly mention 42 U.S.C. § 1983, but that statute, nevertheless, creates a private cause of
action for damages and injunctive relief against individuals and governmental bodies whose conduct
under color of state law deprives a plaintiff of “rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983; Arnold v. Board of Educ. of Escambia County, 880 F.2d
305, 310 (11th Cir. 1989).
56

See doc. no. 26 (Amended Complaint), ¶¶ 15-17, 29-31.
11

suit “all but the plainly incompetent or one who is knowingly violating the federal
law.” Hope v. Pelzer, 536 U.S. 730, 752 (2002) (quoting Malley v. Briggs, 475 U.S.
335, 341 (1986)); see also, e.g., Lee, 284 F.3d at 1193–94; Chesser v. Sparks, 248
F.3d 1117, 1121–22 (11th Cir. 2001).
Courts generally apply a two-part test for determining whether a defendant is
entitled to claim the benefits of the doctrine of qualified immunity. The “threshold
question” is: Do the facts, viewed “in the light most favorable to the party asserting
the injury,” show that the police officer’s conduct violated a constitutional right?
Saucier v. Katz, 533 U.S. 194, 201 (2001). If that question is answered “yes,” then
the court will proceed to analyze the second part of the inquiry: i.e., Was the right
“clearly established”? Id.57
1.

Did Officer Vickers’s use of force violate the Fourth Amendment?

The Supreme Court has said that “all claims that law enforcement officers have
used excessive force — deadly or not — in the course of an arrest, investigatory stop,
or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment
57

The Supreme Court recently relieved lower courts from mandatory adherence to the order
of the two-part analytical framework established by the Saucier opinion. See Pearson v. Callahan,
555 U.S. 223, 236 (2009) (“On reconsidering the procedure required in Saucier, we conclude that,
while the sequence set forth there is often appropriate, it should no longer be regarded as
mandatory.”). It now is within the court’s discretion to, in appropriate cases, assume that a
constitutional violation occurred for the purpose of addressing, in the first instance, whether such
a violation would be “clearly established.” Id. Nevertheless, under the circumstances of this case,
Saucier’s tested sequence of analysis will be followed.
12

and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). A
determination of the reasonableness of an officer’s use of force “requires analyzing
the totality of the circumstances.” Plumhoff v. Rickard, — U.S. —, 134 S. Ct. 2012,
2020 (2014).58
The reasonableness of the force applied also is measured as of the precise
moment it is administered. Events that occurred prior to that moment, though perhaps
giving factual context to the use of force, are not probative of the reasonableness of
the decision to use force. See Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991).
Additionally, “[u]se of force must be judged on a case-by-case basis ‘from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.’” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993)
(quoting Graham, 490 U.S. at 396) (alteration supplied). “The calculus of
reasonableness must embody allowance for the fact that police officers are often
forced to make split-second judgments — in circumstances that are tense, uncertain,

58

The court may consider a number of factors when determining whether the force applied
was “reasonable” under the circumstances, including: (1) the “severity, or lack of severity, of the
alleged crime in issue,” Graham, 490 U.S. at 396; (2) “whether the person against whom the force
was used posed an immediate threat to the safety of the police or others,” id.; (3) “the need for the
application of force,” Jackson v. Sauls, 206 F.3d 1170 n. 18 (11th Cir. 2000); (4) “the relationship
between the need and the amount of force used,” id.; (5) “the extent of the injury inflicted,” id.; (6)
“whether the force was applied in good faith or maliciously and sadistically,” id.; (7) “the possibility
that the persons subject to the police action are themselves violent or dangerous,” id.; (8) “the
possibility that the suspect may be armed,” id.; (9) “the number of persons with whom the police
officers must contend at one time,” id.; and (10) “whether the suspect was resisting or fleeing.” Id.
13

and rapidly evolving — about the amount of force that is necessary in a particular
situation.” Graham, 490 U.S. at 396-97.
Even when an officer’s use of force is unreasonable, however, there is “a de
minimis level of imposition with which the Constitution is not concerned.” Ingraham
v. Wright, 430 U.S. 651, 674 (1977). See also Nolin v. Isbell, 207 F.3d 1253, 1255-56
(11th Cir. 2000) (emphasis supplied).
Defendants contend that Vickers’s use of the “brachial plexus clavicle notch
nerve pressure point control technique” was a de minimis use of force that lies outside
the protection of the Fourth Amendment.59 As an initial matter, the court must
address some of the evidence that plaintiff has submitted in opposition to defendants’
motion for summary judgment that is inconsistent with plaintiff’s deposition
testimony, such as the affidavit of his cousin, Brenda Crutcher,60 stating that “Officer
Vickers had his hands around the neck of [plaintiff] and was choking him.”61
Defendants argue that Brenda Crutcher’s statement should not be considered because
it contradicts plaintiff’s own testimony: i.e., that Vickers took his forearm and placed

59

Doc. no. 78 (Brief in Support of Summary Judgment), at 16-22.

60

Brenda Crutcher was “getting ready to get off [Highway] 72 in the turning lane in front of
the store to turn on to Hine[s] Street” when she witnessed the confrontation between plaintiff and
Officer Vickers. Doc. no. 77-1 (Plaintiff Deposition), at 70.
61

Doc. 79-3 (Affidavit of Brenda Crutcher), ¶ 6 (alterations supplied). Other such evidence
includes several signed statements attached to plaintiff’s complaint from purported witnesses that
claim to have seen Officer Vickers choke plaintiff. See doc. no. 1 (Complaint), at ECF 7-8.
14

it against plaintiff’s throat. That inconsistency presents an unusual circumstance:
that is, the plaintiff’s testimony actually is more harmful to his case than the
testimony of some of the witnesses. While the court is required to construe all facts
in the light most favorable to plaintiff for purposes of summary judgment, that duty
does not extend to rejecting the plaintiff’s own testimony when it is harmful to his
case. As the Eleventh Circuit has stated:
When the nonmovant has testified to events, we do not . . . pick and
choose bits from other witnesses’ essentially incompatible accounts (in
effect, declining to credit some of the nonmovant’s own testimony) and
then string together those portions of the record to form the story that we
deem most helpful to the nonmovant. Instead, when conflicts arise
between the facts evidenced by the parties, we credit the nonmoving
party’s version. Our duty to read the record in the nonmovant’s favor
stops short of not crediting the nonmovant’s testimony in whole or part:
the courts owe a nonmovant no duty to disbelieve his sworn testimony
which he chooses to submit for use in the case to be decided.
Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005) (emphasis in original).
Thus, the court will accept plaintiff’s testimony, and finds for purposes of evaluating
the motion for summary judgment that Officer Vickers did not wrap his hands around
plaintiff’s neck, but pushed his forearm against plaintiff’s throat.
Defendants also assert that plaintiff’s description of the incident — i.e., that
Vickers took his forearm and pushed it against plaintiff’s throat — is consistent with
Vickers’s testimony about the pressure-point control-technique he applied.62 This
62

Doc. no. 80 (Reply Brief in Support of Summary Judgment), at 6-7.
15

court disagrees.
Vickers testified that he placed his right hand on plaintiff’s left shoulder,
between the neck and clavicle, and pressed downward.63 Plaintiff, however, stated
that Vickers’s forearm (not his right hand) was pressed against his throat (not
between his neck and clavicle).64 In fact, plaintiff later asserted that Vickers’s
forearm was against the front of his throat, as opposed to the side of his neck, where
the control technique normally would have been applied.65 Thus, plaintiff’s testimony
is not consistent with Vickers’s description of the “brachial plexus clavicle notch
nerve pressure point control technique,” and it is plaintiff’s testimony that will be
credited for purposes of ruling upon the motion for summary judgment.
Looking at the facts known to Officer Vickers at the moment when he applied
force to plaintiff, but accepting plaintiff’s version of the facts, plaintiff resisted arrest
by refusing Officer Vickers’s order to sit inside his police car, and Vickers responded
by mashing his forearm against the front of plaintiff’s throat, thereby choking him
until he passed out, and then pushing plaintiff’s unconscious body into the police car.
Some courts have held that “a choke hold . . . without more, constitutes the use
of de minimis force.” Eggleton v. Jackson, No. 09-cv-81292, 2011 WL 379186, at
63

Doc. no. 77-3 (Vickers Deposition), at 127-28.

64

Doc. no. 77-1 (Plaintiff Deposition), at 59.

65

Id. at 65-66.
16

*12 (S.D. Fla. Jan. 13, 2011). See also Watson v. Hall, No. 1:07cv928(TSE/TRJ),
2008 WL 149133, at *5–6 (E.D. Va. Jan. 8, 2008) (holding that a choke hold was not
excessive force when it caused only de minimis injury). This court agrees. Plaintiff
was actively resisting arrest, cursing Vickers, threatening him with future harm, and
some degree of force was necessary to place plaintiff into Officer Vickers’s patrol car.
See Graham, 490 U.S. at 396 (“the right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of physical coercion or threat
thereof to effect it”). By placing his forearm against plaintiff’s throat, Officer Vickers
was able to subdue plaintiff and effect his arrest. Plaintiff suffered only minor, nonpermanent injuries (i.e., a muscle sprain in his neck). Thus, no more force than
necessary to effect an arrest without the assistance of a backup officer was used.
Even assuming for the sake of discussion that Officer Vickers’s use of force
was not de minimis, it was still reasonable under the circumstances. The Eleventh
Circuit has held that a police officer’s use of a choke hold was reasonable even when
a suspect was not resisting arrest, but had previously been arrested for violently
resisting arrest, because “a reasonable officer . . . could have concluded that the
technique was needed to stop [the suspect] from becoming violent.” Post v. City of
Fort Lauderdale, 1552, 1559 (11th Cir. 1993). See also Wesson v. Oglesby, 910 F.2d
278, 284 (5th Cir. 1990) (choke hold used on prisoner was not excessive force even
17

though it allegedly caused brief unconsciousness). Here, plaintiff was actively
resisting his arrest by refusing to enter Officer Vickers’s patrol car. Vickers needed
to apply some force to effect plaintiff’s arrest, and his application of force only
resulted in minor injuries to plaintiff.

Under those circumstances, Vickers’s

application of force was reasonable. Accordingly, plaintiff has not established that
Officer Vickers violated the Fourth Amendment.
2.

Was it clearly established that Vickers’s conduct was unlawful?

Even if this court had found a violation of the Fourth Amendment, Vickers still
would be entitled to summary judgment because plaintiff has not demonstrated that
Vickers violated a “clearly established” constitutional right.
In determining whether a constitutional right is clearly established, “‘the salient
question is whether the state of the law [at the time of the unconstitutional act] gave
respondents fair warning that their alleged treatment of [the plaintiff] was
unconstitutional.’” Williams v. Consolidated City of Jacksonville, 341 F.3d 1261,
1270 (11th Cir. 2003) (alterations in original) (quoting Hope, 536 U.S. at 741). The
Supreme Court has rejected the requirement that the facts of previous cases must
always be “materially similar” to those facing the plaintiff. Hope, 536 U.S. at 739.
Instead, for a constitutional right to be “clearly established,”
its contours “must be sufficiently clear that a reasonable official would
18

understand that what he is doing violates that right. This is not to say
that an official action is protected by qualified immunity unless the very
action in question has previously been held unlawful, see Mitchell [v.
Forsyth, 472 U.S. 511,] 535, n.12, 105 S. Ct. 2806, 86 L. Ed. 2d 411;
but it is to say that in the light of pre-existing law the unlawfulness must
be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct.
3034, 97 L. Ed. 2d 523 (1987).
Hope, 536 U.S. at 739 (emphasis supplied, alteration in original).
As the Eleventh Circuit has observed, there are various ways in which an
officer may be placed on “fair warning” that his or her conduct in specific
circumstances may violate the constitution or federal law.
First, the words of the pertinent federal statute or federal
constitutional provision in some cases will be specific enough to
establish clearly the law applicable to particular conduct and
circumstances to overcome qualified immunity, even in the total
absence of case law. This kind of case is one kind of “obvious clarity”
case. For example, the words of a federal statute or federal
constitutional provision may be so clear and the conduct so bad that case
law is not needed to establish that the conduct cannot be lawful.
Second, if the conduct is not so egregious as to violate, for
example, the Fourth Amendment on its face, we then turn to case law.
When looking at case law, some broad statements of principle in case
law are not tied to particularized facts and can clearly establish law
applicable in the future to different sets of detailed facts. See Marsh [v.
Butler County], 268 F.3d [1014,] 1031-32 n.9 [(11th Cir. 2001)]. For
example, if some authoritative judicial decision decides a case by
determining that “X Conduct” is unconstitutional without tying that
determination to a particularized set of facts, the decision on “X
Conduct” can be read as having clearly established a constitutional
principle: put differently, the precise facts surrounding “X Conduct” are
immaterial to the violation. These judicial decisions can control “with
19

obvious clarity” a wide variety of later factual circumstances. These
precedents are hard to distinguish from later cases because so few facts
are material to the broad legal principle established in these precedents;
thus, this is why factual differences are often immaterial to the later
decisions. But for judge-made law, there is a presumption against wide
principles of law. And if a broad principle in case law is to establish
clearly the law applicable to a specific set of facts facing a governmental
official, it must do so “with obvious clarity” to the point that every
objectively reasonable government official facing the circumstances
would know that the official’s conduct did violate federal law when the
official acted.
Third, if we have no case law with a broad holding of “X” that is
not tied to particularized facts, we then look at precedent that is tied to
the facts. That is, we look for cases in which the Supreme Court or we,
or the pertinent state supreme court has said that “Y Conduct” is
unconstitutional in “Z Circumstances.” We believe that most judicial
precedents are tied to particularized facts and fall into this category. . .
. When fact-specific precedents are said to have established the law, a
case that is fairly distinguishable from the circumstances facing a
government official cannot clearly establish the law for the
circumstances facing that government official; so, qualified immunity
applies. On the other hand, if the circumstances facing a government
official are not fairly distinguishable, that is, are materially similar, the
precedent can clearly establish the applicable law.
Vinyard v. Wilson, 311 F.3d 1340, 1350-52 (11th Cir. 2002) (emphasis in original,
alterations supplied). See also Ashcroft v. al-Kidd, — U.S. —, 131 S. Ct. 2074, 2083
(2011) (“We do not require a case directly on point, but existing precedent must have
placed the statutory or constitutional question beyond debate.”).
It should also be noted that it is the plaintiff who bears the burden of
establishing that the constitutional right at issue was clearly established at the time
20

of the violation. Youmans v. Gagnon, 626 F.3d 557, 562 (11th Cir. 2010). Plaintiff
has not done so. Instead, he argues only that, “[e]ven if no prior case law exists as to
an officer choking a handcuffed arrestee unconscious, Vickers is still sufficiently on
notice that his conduct violated established principles.”66 This court disagrees.
In light of the Eleventh Circuit’s opinion in Post v. City of Fort Lauderdale,
supra, this is not an “obvious clarity” case. Thus, the court must turn to case law to
determine whether the purported constitutional violation was clearly established at
the time Officer Vickers employed force against plaintiff.
Plaintiff contends that the constitutional right in this case was “clearly
established” by the case law of Thornton v. City of Macon, 132 F.3d 1395 (11th Cir.
1998), an excessive force case in which the Eleventh Circuit found that police
officers were not entitled to qualified immunity. In that case,
Marjorie Mullis called the Macon city police department on June
5, 1990. She explained to the dispatcher that she wanted the assistance
of a police officer in resolving a dispute between [Mark] Thornton and
herself. Mullis and Thornton had lived together in Thornton’s
apartment, but had parted ways over two years earlier. Mullis explained
that she had a set of keys to Thornton’s car, which she used periodically,
and that Thornton wanted her to return those keys. She had told
Thornton that if she had to return the keys, then he would have to return
a mattress that she had left in his apartment. Mullis explained that she
wanted an officer to assist her in exchanging the keys for the mattress.
Officer [Desmond] Coleman was dispatched to Mullis’ residence.
66

Doc. no. 79 (Response in Opposition to Summary Judgment), at 17.
21

Mullis explained the situation to Coleman and asked him to take the
keys to Thornton. Coleman agreed to do so and proceeded to
Thornton’s apartment, which was located across the street in the same
block as Mullis’ apartment. When Coleman arrived, Thornton was
standing on the front porch of his apartment, which was on the ground
floor of the apartment house. Coleman explained to Thornton that he
was there to return the keys and to pick up Mullis’ mattress. Thornton
responded by telling Coleman that he had done nothing wrong and that
he wanted Coleman to leave the premises. At some point during this
initial exchange, Mullis arrived on the scene. Thornton became upset
and entered his apartment, closing a screen door behind him. Once
inside, Thornton stood at the screen door and repeatedly told Coleman
and Mullis to leave.
Instead of leaving, Coleman called for backup. Less than a
minute later, Officers [Jhristian] Lodge and [Ziva] Beddingfield arrived
on the scene. Coleman briefed them on the situation. Thornton repeated
his desire that the officers leave. The officers tried unsuccessfully to get
Thornton to come out on the porch and talk to them. Finally, they told
him that if he opened the screen door, they would give him his car keys.
As Thornton opened the door to get the keys, the officers charged
into the apartment. One of the officers grabbed Thornton’s arms, and
another grabbed Thornton around the neck. The officers threw Thornton
to the floor, cuffed his hands behind his back, picked him up by his
arms, dragged him outside and shoved him into a police car.
[Tommy] Cravey was an acquaintance of Thornton’s and had
been doing some repair work on the apartment house. When the officers
arrived, Cravey was sitting in a pickup truck parked in the apartment
house driveway; he had come to the house to check on his brother Earl,
who was working there that day. While in the truck, Cravey observed
the officers arrest Thornton and put him in the patrol car. As the officers
took Thornton to the car, Thornton yelled to Cravey; he wanted Cravey
to call his mother and his lawyer and to lock his apartment. Cravey got
out of the truck and approached the officers to ask if he could enter the
apartment to use the phone. One of the officers responded by patting
22

Cravey down; he found a pocket knife on Cravey’s person. The officer
charged Cravey with “obstruction,” slammed him down on the hood of
a police car, and cuffed his hands behind his back. The officer placed
Cravey in the back seat of the police car with Thornton.
Thorton, 132 F.3d at 1397-98 (alterations supplied). Based upon these facts, the
Eleventh Circuit held that,
[n]either Thornton nor Cravey was suspected of having committed a
serious crime, neither posed an immediate threat to anyone, and neither
actively resisted arrest. Yet, on the facts viewed in the light most
favorable to the plaintiffs, the officers used force in arresting both
Thornton and Cravey. The officers grabbed Thornton and wrestled him
to the ground, and threw Cravey on the hood of one of the patrol cars
before handcuffing him. Under the circumstances, the officers were not
justified in using any force, and a reasonable officer thus would have
recognized that the force used was excessive.
Id. at 1400 (emphasis in original, alteration supplied).
The facts of this case are not similar to those at issue in Thornton. Vickers
applied his forearm to plaintiff’s throat only after plaintiff refused several time to
enter Vickers’s police car — i.e., plaintiff was actively resisting arrest — and he did
so in order to place plaintiff inside his police car. Some degree of force was
necessary to effect plaintiff’s arrest. See Graham, 490 U.S. at 396 (holding that “the
right to make an arrest or investigatory stop necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect it”).

The officers in

Thornton, on the other hand, used force when neither plaintiff was refusing police

23

orders at the time the force was applied. Thus, “the officers were not justified in
using any force.” Thornton, 132 F.3d at 1400.
Additionally, Officer Vickers applied his forearm to plaintiff’s throat only for
a brief interval. The officers in the latter case, however, grabbed one of the plaintiffs
by his arms and neck, threw him to the floor, cuffed his hands behind his back, picked
him up by his arms, drug him outside, and shoved him into a police car. They then
slammed the other plaintiff down on the hood of a police car, and cuffed his hands
behind his back. Thus, the amount of force applied in each case differed significantly.
For these reasons, the facts of plaintiff’s case differ to such a degree that
Thornton v. City of Macon did not “clearly establish” that Officer Vickers’s conduct
was unconstitutional on the date it occurred. Further, the court cannot find any case
law broadly establishing that, as of December 8, 2008, the date of the events
underlying this case, choking a suspect was a violation of the Fourth Amendment, or
narrowly establishing that choking a suspect was a violation of the Fourth
Amendment when the suspect is actively resisting arrest by refusing to enter a police
vehicle. See, e.g., Post, 7 F.3d at 1559-60. Thus, even if Officer Vickers violated
plaintiff’s Fourth-Amendment rights, he still would be entitled to summary judgment
based on the doctrine of qualified immunity because he did not violate a “clearly
established” right.
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B.

Municipal Liability for Plaintiff’s Excessive Force Claim
Where, as here, there is no underlying constitutional violation,67 there can be

no municipal liability. See Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (holding
that, if a plaintiff “has suffered no constitutional injury at the hands of the individual
police officer, the fact that the departmental regulations might have authorized the
use of constitutionally excessive force is quite beside the point”) (emphasis in
original); McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (“[T]o impose
§ 1983 liability on a municipality, a plaintiff must show[, among other things,] that
his constitutional rights were violated.”) (alterations supplied). Even if there were
some constitutional violation on which to base a theory of municipal liability,
however, plaintiff’s claim would still fail.
In order to hold the municipality liable, plaintiff would have to demonstrate
that the City of Athens itself directly caused the violation of his constitutional rights,
either through its adoption of, or failure to adopt, some official policy or practice. See
Monell v. Department of Social Services of City of New York, 436 U.S. 658, 695
(1978). A theory of respondeat superior is not sufficient to support a § 1983 claim,
and assertions that the City of Athens was generally responsible for the actions of its
police officers do not provide a sufficiently direct link between the city’s behavior
67

See supra Part III.A.1.
25

and plaintiff’s injury to prove liability. See id. at 691-92.
Defendants contend that the City of Athens is not liable for plaintiff’s FourthAmendment excessive-force claim because “Section 1983 will not support a claim
under a vicarious liability theory — even where an officer acted unconstitutionally,
which is not the case here . . . .”68 Plaintiff presents no evidence that the actions of
Officer Vickers were more than an isolated incident, or that the City of Athens
adopted, or failed to adopt a policy, or engaged in a custom that caused plaintiff’s
alleged constitutional injury. Thus, even if Officer Vickers violated plaintiff’s
Fourth-Amendment rights, the City of Athens still would be entitled to summary
judgment because plaintiff has failed to prove some basis for holding the city liable.
C.

Plaintiff’s State-Law Claims for Assault and Battery and Outrage
In cases where the court’s jurisdiction is based solely upon a federal question,

the district court has discretion to entertain state claims that are supplemental to the
federal claim. See 28 U.S.C. § 1367(a). The district court may decline to exercise
supplemental jurisdiction when:
(1)

the claim raises a novel or complex issue of state law,

(2)

the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction,

(3)

the district court has dismissed all claims over which it has

68

Doc. no. 78 (Brief in Support of Summary Judgment), at 22-23.
26

original jurisdiction, or
(4)

in exceptional circumstances, there are other compelling reasons
for declining jurisdiction.

28 U.S.C. § 1367(c) (emphasis supplied). “[I]n the usual case in which all federallaw claims are eliminated before trial, the balance of factors to be considered under
the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and
comity — will point toward declining to exercise jurisdiction over the remaining
state-law claims.” Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n.7
(1988).
Here, plaintiff’s federal claims have been eliminated. Accordingly, this court
declines supplemental jurisdiction over the remaining state-law claims, and exercises
its discretion to dismiss those claims, but without prejudice to plaintiff’s right to
reassert the claims in an appropriate state forum, if he desires to do so.
IV. CONCLUSION
For the reasons explained above, the motion for summary judgment is due to
be granted in part and denied in part.

A separate order consistent with this

memorandum opinion will be entered contemporaneously herewith.

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DONE and ORDERED this 31st day of October, 2014.

______________________________
United States District Judge

28