WILSON et al v. MILLER et al

Filing 76

ORDER granting 47 Motion for Summary Judgment; denying 50 Motion for Partial Summary Judgment. Judgment shall be entered in favor of the Defendants. Ordered by US DISTRICT JUDGE W LOUIS SANDS on 9/14/2015. (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
YONG NAM WILSON, as administrator
of the Estate of Lemuel Keith Wilson,
Deceased, JESSICA BATES as natural
guardian and next friend of T.S.W.,
a minor child of the Deceased and
LATRICE WILLIAMS as natural
guardian and next friend of
M.W., a minor child of the Deceased,

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Plaintiffs,
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v.
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MATTHEW MILLER, individually
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and in his official capacity
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as a Police Officer of the City of Pelham, :
NEALIE MCCORMICK individually
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and in his official capacity as
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Chief of Police of the City of Pelham;
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and CITY OF PELHAM,
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a municipal corporation of Georgia;
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Defendants.
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Case No.: 1:14-cv-10 (WLS)

ORDER
Before the Court are Plaintiffs’ Motion for Partial Summary Judgment (Doc. 50) and
Defendants’ Motion for Summary Judgment (Doc. 47). For the following reasons, Plaintiffs’
Motion (Doc. 50) is DENIED and Defendants’ Motion (Doc. 47) is GRANTED.
PROCEDURAL HISTORY
On January 13, 2014, Plaintiffs filed this case asserting both Georgia and federal law
claims against Defendants. Their claims arise from the 2012 shooting and death of Lemuel
Keith Wilson. (Doc. 1.) On January 15, 2014, Plaintiffs filed their First Amended Complaint.
(Doc. 6.) On March 7, 2014, Defendants filed a Partial Motion to Dismiss several claims in

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the amended complaint. (Doc. 16.). On October 22, 2014, Plaintiffs filed a Motion for
Leave to File an Amended Complaint (Doc. 38). On October 29, 2014, the Court granted
that Motion and ordered Plaintiffs to submit their amended complaint within fourteen days.
The Plaintiffs did not file an amended complaint following entry of the Court’s October 29,
2014 Order. Upon reviewing the docket and noting that Plaintiffs had failed to file their
amended complaint after being granted leave to do so, the Court ordered Plaintiffs to submit
their Second Amended Complaint. Plaintiffs submitted their Second Amended Complaint
(Doc. 42), and the Court dismissed Defendants’ Partial Motion to Dismiss (Doc. 16) as
moot. (Doc. 43.)
On December 30, 2014, Defendants’ filed a new Partial Motion to Dismiss some of
the claims asserted in the Second Amended Complaint (Doc. 44). On March 16, 2015, the
Court granted-in-part and denied-in-part Defendants’ Partial Motion to Dismiss, dismissing
Plaintiffs’ Fourth Amendment claims for unlawful arrest against Miller, Plaintiffs’ state law
claims against Defendant McCormick in his individual capacity for failure to train and
properly supervise, as well as any associated damages claims set forth in Counts Twelve and
Thirteen, and Plaintiffs’ claim for punitive damages against the City of Pelham.
On January 26, 2015, Defendants filed a Motion for Summary Judgment as to all of
Plaintiffs’ remaining claims. (Doc. 47.) On February 20, 2015, Plaintiffs filed their response,
and on March 23, 2015, after being granted an extension of time, Defendants filed their
reply. (Docs. 63, 72.) Also on January 26, 2015, Plaintiffs filed a Motion for Partial Summary
Judgment as to Counts One, Two, Three, Six, Seven, Eight, Nine, Ten, Eleven, and Twelve.
(Doc. 50.) On March 3, 2015, after being granted an extension of time, Defendants filed
their response, and on April 3, 2015, after being granted an extension of time, Plaintiffs filed
their reply. (Docs. 67, 74.) The Court finds that the Motions for Summary Judgment are
now ripe for review.
FACTUAL HISTORY
The following facts are derived from Defendants’ Statement of Material Facts to
Which There Is No Genuine Dispute (Doc. 47-2), Plaintiffs’ Response (Doc. 64), Plaintiffs’
Statement of Material Facts to Which There Is No Genuine Dispute (Doc. 50-1), and

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Defendants’ Response (Doc. 68), all of which were submitted in compliance with M.D. Ga.
L.R. 56. Where relevant, the factual summary also contains undisputed and disputed facts
derived from the pleadings, the discovery and disclosure materials on file, and any affidavits
submitted, all of which are construed in a light most favorable to the nonmoving party. See
Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In particular, the
Court notes an audio file submitted by Plaintiffs containing Pelham Police radio calls from
March 2, 2012 beginning at 4:57 PM and ending at 6:26 PM. Although Plaintiffs do not
specifically reference this audio file as an exhibit in their briefing, it was submitted along with
Document 64, and the Court found it particularly corroborative of portions of Miller’s
deposition testimony.
On March 2, 2012, the Pelham Police Department received a report that a naked man
was running in the area of Liberia Street in Pelham, Georgia. Officers Wanda Rickerson and
Sergeant David Cook responded. Officer Rickerson proceeded to Liberia Street to find the
residence of the 911 caller. Sergeant Cook patrolled the area, asking people whether they
had seen the naked man.

Sergeant Cook radioed for Defendant Matthew Miller, an

investigator with the Pelham Police Department, to bring a four-wheeler vehicle to the scene
to assist in locating the naked man. Miller left the station in a four-wheeler and went to the
scene.
Upon arriving at the scene, Miller spoke with the 911 caller at her residence, which
was very close to the city limits. The woman told Miller that she had observed the naked
man run through her yard and into the woods nearby. Miller parked the four-wheeler
outside the woods and went into the woods alone and on foot to search for the naked man.
Miller informed Rickerson that he was doing so. Officers Rickerson and Cook did not
accompany Miller into the woods. Miller carried a firearm as his only weapon and tool for
restraint. Miller did not know whether he was within the Pelham city limits while in the
woods. Meanwhile, Rickerson went to Cemetery Road where she believed the naked man
might emerge from the woods, and Cook continued patrolling Cemetery Road, Mize Street,
School Street, and Liberia Street.

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When Miller entered the woods, around 5:00 PM, it was daylight. After searching the
woods for several minutes, Miller heard someone yell “hey” from behind him. Miller turned
around and saw the naked man, later identified as Lemuel Keith Wilson, crouching about
fifty yards away. Around 5:09 PM, Miller radioed that he had made contact with the naked
man.

Miller walked towards Wilson and asked him if everything was alright. Wilson

responded by asking Miller if he had a gun. Miller stopped walking towards Wilson and
informed him that he did have a gun. Wilson then asked Miller if he felt like using the gun,
to which Miller responded that he did not. Wilson told Miller he would have to use his gun
to kill him or Wilson would kill Miller.
Wilson then stood up and started approaching Miller with his fists closed. Miller
could see that Wilson had something clinched in his left hand but could not tell what it was.
Miller started backing up while talking Wilson, attempting to calm him down.

Miller

removed his firearm from its holster and aimed it toward the ground. Miller continued to
back up and attempt to calm Wilson down while Wilson continued to close the distance
between them. In the minute or so that elapsed after Miller’s first contact with Wilson,
Miller radioed for backup multiple times and stated that Wilson had threatened to kill him.
Wilson continued approaching Miller and said, “It’s too late,” and, “They’re coming for me.”
Wilson lunged toward Miller with his arms stretched out. From around six feet away, Miller
fired two rounds from his firearm, hitting Wilson. Around 5:10 PM, Miller radioed that
shots had been fired in Pelham. Wilson was transported to the hospital where he was
pronounced deceased.
Wilson weighed around 145 pounds and was five feet, eleven inches tall, and Miller
weighed around 185 pounds and was five feet, eight inches tall at the time of the incident.
The object clinched in Wilson’s left fist was later discovered to be a roll of over sixty $20
bills. Plaintiff Yong Nam Wilson is the administrator of Lemuel Wilson’s estate. Plaintiffs
T.S.W. and M.W. are the minor children of Lemuel Wilson. Defendant Nealie McCormick
was Chief Officer of the Pelham Police Department at the time of the incident and exercised
supervisory and managerial authority over Defendant Miller.

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STANDARDS OF REVIEW
I.

Federal Rule of Civil Procedure 56
Federal Rule of Civil Procedure 56 allows a party to move for summary judgment

where no genuine issue of material fact remains and the party is entitled to judgment as a
matter of law. “Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” Maddox v. Stephens, 727 F.3d 1109, 1118 (11th Cir. 2013). “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.” Grimes v. Miami Dade Cnty., 552 F.
App’x 902, 904 (11th Cir. 2014) (citing Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir.
2000)). “An issue of fact is ‘material’ if it is a legal element of the claim under the applicable
substantive law which might affect the outcome of the case.” Allen v. Tyson Foods, Inc., 121
F.3d 642, 646 (11th Cir. 1997) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“It is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the
nonmoving party.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The movant bears the initial burden of showing, by reference to the record, that there
is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Barreto v. Davie Marketplace, LLC, 331 F. App’x 672, 673 (11th Cir. 2009). The movant can
meet this burden by presenting evidence showing there is no dispute of material fact, or by
demonstrating to the district court that the nonmoving party has failed to present evidence
in support of some element of its case on which it bears the ultimate burden of proof. See
Celotex, 477 U.S. at 322-24. Once the movant has met its burden, the nonmoving party is
required “to go beyond the pleadings” and identify “specific facts showing that there is a
genuine issue for trial.” Id. at 324. To avoid summary judgment, the nonmoving party
“must do more than summarily deny the allegations or ‘show that there is some metaphysical
doubt as to the material facts.’” Matsushita, 475 U.S. at 586 (citations omitted). Instead, the
nonmovant must point to record evidence that would be admissible at trial. See Jones v. UPS

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Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012) (quoting Macuba v. Deboer, 193 F.3d
1316, 1322 (11th Cir. 1999)) (noting that hearsay may be considered on a motion for
summary judgment only if it “could be reduced to admissible evidence at trial or reduced to
admissible form”). Such evidence may include affidavits or declarations that are based on
personal knowledge of the affiant or declarant. See Fed. R. Civ. P. 56(c)(4).
On a motion for summary judgment, the Court must view all evidence and factual
inferences drawn therefrom in the light most favorable to the nonmoving party and
determine whether that evidence could reasonably sustain a jury verdict. See Celotex, 477 U.S.
at 322-23; Allen, 121 F.3d at 646. However, the Court must grant summary judgment if
there is no genuine issue of material fact and the movant is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c).
II.

Local Rule 56
Local Rule 56 requires the following:
The respondent to a motion for summary judgment shall attach to the
response a separate and concise statement of material facts, numbered
separately, to which the respondent contends there exists a genuine issue to be
tried. Response shall be made to each of the movant's numbered material
facts. All material facts contained in the moving party's statement which are
not specifically controverted by the respondent in respondent's statement shall
be deemed to have been admitted, unless otherwise inappropriate.

M.D. Ga. L.R. 56.

Here, both Parties properly filed summary judgment motions

accompanied by a statement of undisputed facts, as required by the Federal Rules of Civil
Procedure and the Local Rules of this Court. (Docs. 47-2, 50-1.)
ANALYSIS
I.

Defendants’ Motion for Summary Judgment
Defendants move for summary judgment on all claims remaining in this action. (Doc.

47.) The claims that remain are: Count One, a 42 U.S.C. § 1983 claim against Miller for
excessive force; Count Two, an ordinary negligence claim against Miller; Count Three, a
negligence per se claim against Miller; Count Four, a Section 1983 claim against City of
Pelham for excessive force; Count Five, a Section 1983 claim against McCormick for
excessive force; Count Six, a false imprisonment claim against Miller; Count Seven, a state
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law unlawful arrest claim against Miller; Count Eight, an assault and battery claim against
Miller; Count Nine, a negligence claim against McCormick; Count Ten, a negligence
infliction of emotional distress claim against Miller; Count Eleven, an intentional infliction of
emotional distress claim against Miller; and Counts Twelve and Thirteen, claims for
wrongful death, damages, and attorneys’ fees against all Defendants. All claims against
McCormick and Miller are against them in their individual and official capacities except for
the Count Nine claim against McCormick, which is only against him in his official capacity.
A. Plaintiffs’ Section 1983 Fourth Amendment Excessive Force Claims against
Miller, City of Pelham, and McCormick (Counts One, Four, Five)
1. Excessive Force Claim against Miller in His Individual Capacity
Miller asserts that he is entitled to qualified immunity from Plaintiffs’ Section 1983
excessive force claim against him in his individual capacity (Doc. 47-1 at 6). Qualified
immunity allows “government officials to carry out their discretionary duties without the fear
of personal liability or harassing litigation.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.
2002) (citations omitted). “To receive qualified immunity, the public official must first prove
that he was acting within the scope of his discretionary authority when the allegedly
wrongful acts occurred.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002). There are
two steps in establishing that an officer was acting within his discretionary authority. The
first is establishing that the officer’s action was undertaken pursuant to the performance of
his official duties, and the second is establishing that the action was within the scope of the
official’s authority, in other words that it was “within, or reasonably related to, the outer
perimeter of an official’s discretionary duties.” Maughon v. City of Convington, 505 F. App’x
818, 822 (11th Cir. 2013) (quoting Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1282 (11th Cir.
1998)).
An officer’s decisions to effect an arrest and to use force are actions taken pursuant
to the performance of his official duties. See Kesinger ex rel. Estate of Kesinger v Herrington, 381
F.3d 1243, 1248 (11th Cir. 2004); Wood v. Kesler, 323 F.3d 872, 877 (11th Cir. 2003).
Plaintiffs argue that Jones v. City of Atlanta, 192 F. App’x 894 (11th Cir. 2006), clearly
established that an officer’s use of force outside of his jurisdiction is not within his

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discretionary authority. The Court finds that Jones is distinguishable from this case. The
officers in Jones were returning from lunch outside their jurisdiction when they encountered
the plaintiff –a scenario which is distinct from the one here involving an officer on duty in
his own jurisdiction who begins an investigation in his jurisdiction, near the city limits, and
may have ended up outside of his jurisdiction at the time of the use of force. Furthermore,
Miller was acting within the scope of his authority as a police officer when he searched for
and encountered Wilson very near the county line in coordination with other officers. See
Maughon v. City of Covington, 505 F. App’x 818, 822 (11th Cir. 2013) (finding that an officer
who effected an arrest outside of his jurisdiction but very near the county line acted within
the scope of his authority). The Court notes that neither Party’s statement of facts as to
which no genuine disputes exist even mentions the allegation that Miller was outside the city
limits at the time of his altercation with Wilson. The Court finds that if a dispute of fact
exists as to that issue, it is not material because Miller was acting within his discretionary
capacity regardless.

Therefore, Miller must establish that he did not violate a clearly

established right of Wilson’s.
An official seeking qualified immunity must establish that he did not violate “a
statutory or constitutional right that was clearly established at the time of the challenged
conduct.” Carroll v. Carman, 135 S.Ct. 348, 350 (2014). “A right is clearly established only if
its contours are sufficiently clear that ‘a reasonable official would understand that what he is
doing violates that right.’” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). An
exception exists to this rule in the excessive force context “where the official’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
caselaw.” Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997). In other words, in order for
the exception to apply, a plaintiff “would have to show that every reasonable officer in [a
defendant’s] situation would know that the force he used was unlawful.” Merricks v. Adkisson,
Case No. 14-12801 at 22 (11th Cir. May 15, 2015) (citing Priester v. City of Riviera Beach, Fla.,
208 F.3d 919, 926-27 (11th Cir. 2000)).

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The Supreme Court has held, “[T]here can be no question that apprehension by the
use of deadly force is a seizure subject to the reasonableness requirement of the Fourth
Amendment.” Tenn. v. Garner, 471 U.S. 1, 7 (1985). The Court further held, “A police officer
may not seize an unarmed, nondangerous suspect by shooting him dead,” but “[w]here the
officer has probable cause to believe that the suspect poses a threat of serious physical harm,
either to the officer or to others, it is not constitutionally unreasonable to prevent escape by
using deadly force.” Id. at 11.
There are three factors discussed in Garner, Graham v. Connor, and subsequent
Eleventh Circuit cases that a court should consider in determining the reasonableness of an
officer’s use of force: (1) “the severity of the crime at issue”; (2) “whether the suspect poses
an immediate threat to the safety of the officers or others”; and (3) whether the suspect was
“actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. 386, 396;
see also Garner, 471 U.S. at 8-9; Fils v. City of Aventura, 647 F.3d 1272, 1288 (11th Cir. 2011).
“[I]f the suspect threatens the officer with a weapon . . . , deadly force may be used if
necessary . . . , and if, where feasible, some warning has been given.” Garner, 471 U.S. at 11–
12. Use of deadly force may not be reasonable where the officer himself created the
situation giving rise to the threat of serious physical harm. See Gilmere v. City of Atlanta, Ga.,
774 F.2d 1495, 1501-02 (11th. Cir. 1985) (abrogated on other grounds) (holding that use of
deadly force was not reasonable where “any fear on the officer’s part was the fear of
retaliation against his own unjustified physical abuse”).
“The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Graham, 490 U.S. at 396. But also, “[a]t summary judgment, we cannot simply
accept the officer's subjective version of events, but rather must reconstruct the event in the
light most favorable to the non-moving party and determine whether the officer's use of
force was excessive under those circumstances.” Fils, 647 F.3d at 1288 (citing Vinyard, 311
F.3d at 1347-48).
Generally, in the context of Fourth Amendment excessive force claims, the Eleventh
Circuit has held that “no bright line exists for identifying when force is excessive,” instead

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concluding “that unless a controlling and materially similar case declares the official's
conduct unconstitutional, a defendant is usually entitled to qualified immunity.” Priester, 208
F.3d at 926. Miller argues that he did not violate Wilson’s clearly established rights, focusing
on the reasonableness of his use of force in response to Wilson’s threat to kill him, physical
advances, and possession of an unidentified object in his left hand. Plaintiffs argue that the
totality of the circumstances the Court should consider includes not only the encounter in
the woods but Miller’s decision to enter the woods alone, without any restraint tool except
for a firearm, in search of a naked man who Plaintiffs suggest Miller should have presumed
to be of diminished capacity. Plaintiffs argue that Miller acted unreasonably and created the
circumstances giving rise to any fear of serious harm he may have experienced. (See Doc. 63
at 7-16.)
Plaintiffs argue that Gilmere and Fils clearly established that a reasonable officer
cannot believe deadly force is justified where the officer has created the situation giving rise
to the threat of serious harm feared by the officer. (Doc. 63 at 17.) In Gilmere, the Eleventh
Circuit held that use of deadly force was not reasonable where “any fear on the officer’s part
was the fear of retaliation against his own unjustified physical abuse.” 774 F.2d at 1501. In
Gilmere, the decedent was older and smaller than the two arresting officers and was unarmed
and clearly intoxicated. Id. at 1496-97. The decedent resisted arrest and attempted to flee.
While the officers escorted him to the patrol car, they “beat him about the head.” Id. The
decedent then broke free of the officers’ hold, attempting to flee, and was shot and killed by
one of the officers. Id. The Eleventh Circuit determined that the beating was excessive and
unnecessary and therefore gave rise to the decedent’s flight. And in Fils, the plaintiff who
was tasered by an officer did not threaten the officer’s safety, did not disobey any warnings
or directives from the officer, and in fact took a step away from the officer, and after being
initially tased did not attempt to resist arrest but was nevertheless tased again. 647 F.3d at
1289. The Eleventh Circuit found that the force used against that plaintiff was unprovoked
and excessive. Id.
Here, Miller’s choice to enter the woods alone, with only a firearm, was unwise but
did not give rise to or provoke Wilson’s threats that ultimately caused Miller to fear for his

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life. The evidence indicates that Miller made efforts to calm Wilson down, and there is no
evidence Miller provoked Wilson in anyway or created a situation where Wilson’s only
choice was to submit to force, respond with force, or flee. Plaintiffs cite no binding case law,
and the Court can find none, holding that Fourth Amendment law clearly requires that
officers respond to situations like the one Miller faced with back-up officers and alternative
methods of restraint.
In arguing that Miller violated Wilson’s clearly established constitutional rights,
Plaintiffs rely on Samples on Behalf of Samples v. City of Atlanta, 846 F.2d 1328 (11th Cir. 1988).
In Samples the Eleventh Circuit upheld a district court’s denial of summary judgment where
the district court found that an issue of fact remained as to whether an officer used excessive
force. Samples left open the question of whether an officer’s use of force in a situation similar
to the one here was excessive. Thus, Samples did not clearly establish Wilson’s constitutional
rights such that Miller was or should have been on notice that his conduct was unlawful.
Rather, the Court finds that at the time of the incident, the most clearly established contours
of Wilson’s right to be free from excessive force were the three factors discussed in Graham,
Garner, and subsequent Eleventh Circuit cases. See Graham, 490 U.S. 386, 396; Garner, 471
U.S. at 8-9; Fils, 647 F.3d at 1288.
The Court now considers the three Garner factors. As the Court has already held in
its Order on Defendants’ Motion to Dismiss, Miller had probable cause to arrest Wilson for
public indecency, based on the facts alleged. (Doc. 70 at 5-6.) The Court now finds that the
facts as established in the record also support that Miller had probable cause to arrest Wilson
for public indecency.
The Court also finds that a reasonable officer in Miller’s position could believe that
he faced an immediate threat of serious injury based on Wilson’s threat to kill him,
possession of an unidentified object, and aggressive physical advances. Further, the Court
finds that a reasonable officer in Miller’s position could believe that Wilson was actively
attempting to evade arrest by continuing to threaten Miller verbally and physically instead of
heeding Miller’s requests to calm down. This case is distinguishable from cases involving
use of force where a suspect was cooperating with law enforcement. Here, Wilson made

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verbal and physical threats toward Miller, acting erratically, holding an unidentified object in
his left hand, and quickly closing the distance between the two. Additionally, although there
is no evidence that Miller provided an explicit warning to Wilson that he was about to shoot,
Miller testified that he had his gun drawn, pointed at the ground, during the time that Wilson
advanced toward him and that he told Wilson that he “did not want to do this” while
attempting to calm him down. Furthermore, Wilson’s comments to Miller regarding his gun
and his statement to the effect of, “You’re going to [have to] kill me,” indicate that Wilson
was quite aware of the risk of imminent deadly force if he continued his advances. The
Court therefore finds that Wilson had adequate warning that Miller would use deadly force if
necessary.
Finally, the Court finds that Miller’s conduct was not so apparently unlawful as to fall
within the exception to the “clearly established right” requirement. The Court finds that
Plaintiffs have not established that every reasonable officer in Miller’s situation would know
that the force he used was unlawful. As discussed above, Miller had probable cause to arrest
Wilson; Wilson made verbal and physical threats, holding an unidentified object in his left
hand. Reasonable officers perform searches and seizures without immediate backup all the
time, and Plaintiffs have pointed to no binding case law holding that officers are required to
carry tools of restraint other than a firearm at all times. For those reasons, the Court finds
that Miller’s actions were not so obviously unconstitutional that no reasonable officer would
have taken them in Miller’s situation.
The Court finds that a reasonable officer in Miller’s position could determine that, in
light of the three Garner factors, use of deadly force was reasonable, and the Court finds no
controlling and materially similar case that would have put Miller on notice that his actions
were unconstitutional.

The Court finds, therefore, that Miller is entitled to qualified

immunity as to Plaintiffs’ Count One Section 1983 claim against him in his individual
capacity.1
Although hindsight is not “20/20,” the Court does not mean to suggest that Miller handled the situation
perfectly or that Wilson’s tragic death was entirely unpreventable in view of the facts as established by the
record. However, the Court is required to apply established law, and, here, the Court finds that, under
established law, Wilson’s tragic and possibly preventable death does not give rise to a constitutional claim
against Miller in his individual capacity.
1

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2. Excessive Force Claims against Miller and McCormick in Their Official Capacities and
the City of Pelham
The Court now considers Plaintiffs’ Section 1983 excessive force claims against Miller
and McCormick in their official capacities and against the City of Pelham. When a plaintiff
makes a Section 1983 claim against an officer in his official capacity that is “another way of
pleading an action against an entity of which an officer is an agent.” Abusaid v. Hillsborough
Cnty. Bd. of Cnty. Comm'rs, 405 F.3d 1298, 1302 n. 3 (11th Cir.2005). Municipalities (and local
officials sued in their official capacities) can be sued directly under § 1983 for monetary relief
“where the action that is alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially adopted or promulgated by those
whose edicts or acts may fairly be said to represent official policy.” Monell v. Dep’t of Social
Servs. of City of New York, 436 U.S. 658, 690 (1978). Further, municipalities can be liable under
Section 1983 for constitutional violations that occur pursuant to governmental custom, even
where such custom has not been adopted as an official policy. Id. at 690-91.
Specifically, where a plaintiff asserts that a municipality is liable for failure to train or
adequately supervise, the plaintiff must demonstrate that the failure was a “deliberate” or
“conscious” choice by the municipality.

City of Canton, 489 U.S. at 388-89. “Since a

municipality rarely will have an express written or oral policy of inadequately training or
supervising its employees,” a plaintiff may prove a city policy by showing that the
municipality's failure to train evidenced a “deliberate indifference” to the rights of its
inhabitants. Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (citing City of Canton,
489 U.S. at 388-89). “To establish a ‘deliberate or conscious choice’ or such ‘deliberate
indifference,’ a plaintiff must present some evidence that the municipality knew of a need to
train and/or supervise in a particular area and the municipality made a deliberate choice not
to take any action.” Id. “[T]he Supreme Court has given only a hypothetical example of a
need to train being ‘so obvious’ without prior constitutional violations: the use of deadly
force where firearms are provided to police officers.” Gold, 151 F.3d at 1350 (citing City of
Canton, 489 U.S. at 390 n. 10).

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Here, Plaintiffs’ own evidence, a document reflecting the training Miller received,
indicates that on June 9, 2011, Miller was trained in firearms and use of deadly force. (Doc.
52-1 at 4-5.) Thus, there is no genuine issue of fact as to whether Pelham Police Department
failed to train Miller on firearms and the use of deadly force.
Furthermore, Plaintiffs point to no evidence that the City of Pelham made a
deliberate choice not to train officers in a particular area where it knew such training was
needed. Plaintiffs’ rest their argument on the fact that Miller was not specifically trained on
Pelham’s policy on dealing with persons with diminished capacity. Miller testified that he
had read the Department policy on dealing with persons with diminished capacity, but the
evidence does not indicate that he was trained specifically on the policy. (Doc. 56 at 20.) A
police department, however, is not required to have such a policy, much less train officers
regarding such a policy, unless the department knows of a need to train in that particular
area. Gold, 151 F.3d at 1350.
Plaintiffs’ only evidence that the Pelham Police Department knew of such a need is
the Department’s own policy manual, which states that the “final policy maker of the agency
knows to a moral certainty” that officers will face certain “high-risk critical tasks” that could
lead to “a physical or constitutional injury,” including dealing with persons with diminished
capacity. (Doc. 42-5 at 60-61.) The Eleventh Circuit has held:
It is not enough to show that a situation will arise and that taking the wrong
course in that situation will result in injuries to citizens . . . . City of Canton also
requires a likelihood that the failure to train or supervise will result in the
officer making the wrong decision. Where the proper response . . . is obvious
to all without training or supervision, then the failure to train or supervise is
generally not “so likely” to produce a wrong decision as to support an
inference of deliberate indifference by city policymakers to the need to train or
supervise.
Sewell v. Town of Lake Hamilton, 117 F.3d 488, 490 (11th Cir. 1997) (quoting Walker v. City of
New York, 974 F.2d 293, 299-30 (2d Cir. 1992)).

Sewell dealt with an officer’s sexual

molestation of a detainee, a scenario where the proper response was so obvious that the
failure to train could not have been a cause of the injury. Here, the Court does not find that
the proper response was so obvious that training on dealing with persons of diminished

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capacity should not have been necessary, but does find that the bare statements in the City’s
policy manual are not sufficient, alone, to show that there was a likelihood that failure to
train would result in an officer making the wrong decision.
Plaintiffs’ also cite the deposition of Rod Williams, arguing that he admitted “that
Pelham does have incidents of naked people running around.” (Doc. 63 at 19.) However,
the Court cannot find the transcript of this deposition in the record. (See Docket.) Plaintiffs
have produced no evidence of similar incidents that would have put Pelham on notice of the
need for training beyond the training it did provide and having officers read the policy on
persons with diminished capacity. For those reasons, the Court GRANTS Defendants’
Motion for Summary Judgment as to Plaintiffs’ Section 1983 claims against Miller and
McCormick in their official capacities and against the City of Pelham.
3. Excessive Force Claim against McCormick in His Individual Capacity
Plaintiffs’ also assert a Section 1983 claim against McCormick in his individual
capacity under a theory of supervisory liability. In Section 1983 actions, supervisory officials
are not liable under a theory of vicarious liability, or respondeat superior. Cottone v. Jenne, 326
F.3d 1352, 1360 (11th Cir. 2003). Officials may be liable on a theory of supervisory liability.
Id. To state a claim under a theory of supervisory liability, a plaintiff must allege:
either (1) a “custom or policy [that] result[s] in deliberate indifference to
constitutional rights or . . . facts [that] support an inference that the
supervisor[s] directed the subordinates to act unlawfully or knew that the
subordinates would act unlawfully and failed to stop them from doing so;” or
(2) “a history of widespread abuse [that] put[] the responsible supervisor on
notice of the need to correct the alleged deprivation and [that] he fail[ed] to do
so.”
West v. Tillman, 496 F.3d 1321, 1328 (11th Cir. 2007) (quoting Cottone, 326 F.3d at 1360).
As the Court has already found with regard to Plaintiffs’ claims against the City of
Pelham and Miller and McCormick in their official capacities, Plaintiffs have produced no
evidence of a custom or policy that resulted in deliberate indifference to Wilson’s
constitutional rights or a history of widespread abuse that would have put McCormick and
others on notice of the need for more training. Furthermore, Plaintiffs have produced no
evidence that McCormick was directly involved in the incident or directed a subordinate to
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act unlawfully. For those reasons, the Court GRANTS Defendants’ Motion for Summary
Judgment as to Plaintiffs’ Section 1983 claim against McCormick in his individual capacity.
B. Plaintiffs’ State Law Claims
Having found that Plaintiffs have failed to survive summary judgment on their
Section 1983 claims, which fall within this Court’s original jurisdiction, the Court declines to
exercise supplemental jurisdiction over Plaintiffs’ remaining state law claims.

See, e.g.,

McCulloch v. PNC Bank Inc., 298 F.3d 1217, 1227 (11th Cir. 2002) (“The Court may decline to
exercise jurisdiction over state-law claims where the Court has dismissed all the federal
claims over which it has original jurisdiction.”); see also 28 U.S.C. § 1367(c)(3). Accordingly,
Counts Two, Three, Six, Seven, Eight, Nine, Ten, Eleven, Twelve, and Thirteen are
DISMISSED WITHOUT PREJUDICE.
C. Plaintiffs’ Motion for Partial Summary Judgment
The Court also addresses Plaintiffs’ Motion for Partial Summary Judgment (Doc. 50).
Plaintiffs argue that they are entitled to judgment as a matter of law because Defendants
violated a ministerial duty to follow the Pelham Police Department’s policy on responding to
persons with diminished capacity and because Miller acted with actual malice. (Doc. 50 at 2.)
First, the term “ministerial duty” is one used in the context of determining whether a
defendant is entitled to official immunity under Georgia state law. Thus, to the extent
Plaintiffs argue that Defendants are not entitled to official immunity, that argument only
applies to Plaintiffs’ state law claims, not the remaining federal claim against Miller asserted
in Count One. Plaintiffs’ other argument –that Miller acted with actual malice – also relates
only to their state law claims and the issue of whether Miller would be entitled to official
immunity under state law. Having dismissed Plaintiffs’ state law claims, the Court DENIES
without prejudice as moot Plaintiffs’ Motion for Partial Summary Judgment (Doc. 50) as
to some of their state law claims.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment (Doc. 47) is
GRANTED as to Plaintiffs’ Section 1983 claims against Miller, McCormick, and the City of
Pelham. The Clerk is directed to enter judgment on those claims in favor of Defendants

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Miller, McCormick, and the City of Pelham.

Plaintiffs’ Motion for Partial Summary

Judgment (Doc. 50) is DENIED without prejudice. The Court declines to exercise
supplemental jurisdiction over Plaintiffs’ remaining state law claims, and those claims are
DISMISSED without prejudice.
SO ORDERED, this 14th day of September, 2015.
/s/ W. Louis Sands______________________
W. LOUIS SANDS, SR. JUDGE
UNITED STATES DISTRICT COURT

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