Blackwell v. Mitchell et al
Filing
69
ORDER granting 38 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 08/19/2011. (CGC)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
JIMMY L. BLACKWELL,
*
Plaintiff,
*
vs.
*
OFFICER ROBERT C. MITCHELL,
et al.,
*
CASE NO.: 3:09-CV-42 (CDL)
*
Defendants.
*
O R D E R
This action arises from the arrest of Plaintiff Jimmy L.
Blackwell (“Blackwell”) by Defendant Officer Robert C. Mitchell
(“Officer
Mitchell”),
police officer.
arrest,
Officer
a
City
of
Hartwell,
Georgia
(“City”)
Blackwell alleges that during the course of the
Mitchell
and
Dustin
Carruth
(“Carruth”),
a
private citizen riding along with Officer Mitchell, attacked and
beat him.
Blackwell asserts federal law claims for unreasonable
seizure and excessive force in violation of the Fourth Amendment
against Officer Mitchell and Carruth pursuant to 42 U.S.C. §
1983 (“§ 1983”).1
Blackwell also asserts a § 1983 claim against
the City, contending that its ride-along policy played a role in
causing the deprivation of his constitutional rights.
Finally,
Blackwell asserts state law tort claims against Officer Mitchell
1
Blackwell generally alleges that his Fourteenth Amendment rights were
also violated, but he fails to state which particular Fourteenth
Amendment right was violated or how it was violated.
and
Carruth
for
assault,
battery,
intentional
emotional distress, and false imprisonment.
before
the
Court
is
Defendants’
Motion
infliction
of
Presently pending
for
Partial
Summary
Judgment (ECF No. 38) as to Defendants Carruth and The City.2
As
discussed below, the motion is granted.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “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.”
Civ. P.
56(a).
Fed. R.
In determining whether a genuine dispute of
material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party=s favor.
U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc., 477
A fact is material if it is relevant or
necessary to the outcome of the suit.
Id. at 248.
A factual
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
2
Id.
Blackwell voluntarily dismissed his claims against Defendants Welborn
and Little and his failure to train claim against the City. Pl.’s Br.
in Opp’n to Defs. Carruth, Welborn, & Little’s Mot. for Summ. J. 6,
ECF No. 47-2; Pl.’s Resp. in Opp’n to Defs. Reno & City of Hartwell’s
Mot. for Summ. J. 5, ECF No. 47-3.
Therefore, summary judgment is
appropriate as to those claims.
Blackwell brought his claims against Hartwell Chief of Police
Cecil Reno in his official capacity only. 2d Am. Compl. ¶ 9, ECF No.
31. The Court construes Blackwell’s official capacity claims against
Chief Reno as claims against the City. See e.g. Mann v. Taser Int’l,
Inc., 588 F.3d 1291, 1309 (11th Cir. 2009).
2
BLACKWELL’S AFFIDAVIT
As a preliminary matter, the Court must determine whether
it may rely on Blackwell’s affidavit in determining whether any
genuine
fact
Defendants
disputes
contend
exist.
that
See
the
Pl.’s
Court
Aff.,
should
ECF
48-1.
consider
not
No.
those
portions of Blackwell’s affidavit that conflict with his prior
deposition testimony.
“[A] district court may find an affidavit which contradicts
testimony on deposition a sham when the party merely contradicts
its prior testimony without giving any valid explanation.”
Van
T. Junkins & Assoc., Inc. v. U.S. Indus., Inc., 736 F.2d 656,
656 (11th Cir. 1984).
This case involves an altercation between
Blackwell and Officer Mitchell.
was also involved.
deposition,
Blackwell
When asked about the altercation in his
Blackwell
admits
Blackwell alleges that Carruth
to
could
drinking
not
“a
remember
fair
many
amount”
details.
earlier
that
evening, and that at the time of the incident he was “under the
influence” of alcohol.
No. 45.
Pl.’s Dep. 65:15-18, Sept. 9, 2010, ECF
Blackwell also testified that there were two police
officers
and
that
remember
anything
somebody
else.
attacked
Id.
at
him,
but
72:13-78:21.
he
could
not
Specifically,
Blackwell could not recall who struck him, whether he struck
anyone, or whether he made any verbal threats.
76:20-77:23.
Id. at 75:3-18,
In fact, Blackwell stated in his deposition that
3
the first thing he remembers after the officers first approached
him and asked his name was waking up in the hospital.
Id. at
72:13-78:21.
In
his
affidavit,
which
Blackwell
signed
and
swore
to
months after his deposition, Blackwell contends that he never
attempted to strike any officers.
He asserts that two people
held him on the ground, beat him, and kicked him after the
initial blow to his head, and that he never made any verbal
threats.
See
Pl.
Aff.
¶¶
28-32.
But
Blackwell
offers
no
explanation for his sudden recollection of the specifics of the
altercation.
Nevertheless,
eight
months
prior
to
his
deposition,
Blackwell testified in a Hart County Superior Court hearing that
he “didn’t hit nobody.”
See Pl.’s Resp. in Opp’n to Defs.’ Mot.
for Summ. J. Attach. 6, Mot. for Change of Venue & Mot. to
Suppress
Hr’g
Tr.
43,
48
Jan. 12, 2010,
[hereinafter Sup. Ct. Hr’g Tr.].
ECF
No.
47-6
But Blackwell admitted that he
could not recall what, if anything, he said to the officers.
Id. at 36 (“I don’t know what I said.”).
testimony
affirms
in
part
and
So Blackwell’s hearing
conflicts
in
part
with
the
assertions made in his affidavit.
To the extent that Blackwell’s affidavit is in conflict
with both his prior hearing and deposition testimony, the Court
will not consider
it.
But where
4
Blackwell’s
affidavit
only
conflicts with his deposition testimony and is supported by his
prior hearing testimony, the Court will consider it.
FACTUAL BACKGROUND
Viewed in the light most favorable to Blackwell, the record
reveals the following:
In the early hours of February 16, 2009,
Blackwell
was
walking along Gordon Street in Hartwell, Georgia, toward his
brother-in-law’s
house
at
129
Savannah
Street.
Defendants
contend that Blackwell was walking in the middle of the street.
Mitchell Dep. 25:19-27:15, Sept. 13, 2010, ECF No. 56; see also
Carruth
Dep.
Blackwell
15:11-16,
maintains
that
Sept.
he
13,
was
2010,
simply
ECF
No.
crossing
58.
the
But
street.
Pl.’s Dep. 71:4-72:7.
Officer Mitchell was on patrol in the vicinity.
He was
accompanied in his patrol car by Carruth, a participant in the
Hartwell
spotted
Police
Department’s
Blackwell
and
ride-along
brought
attention.
Mitchell Dep. 25:19-22.
patrol car
close
to
him
program.3
to
Officer
Carruth
Mitchell’s
Officer Mitchell pulled his
Blackwell—who by then
Savannah Street—and asked him to stop.
was
walking along
When Blackwell refused,
Officer Mitchell got out of his patrol car, approached him, and
asked
him
for
his
name
and
identification.
3
Blackwell
gave
At the time, the police department authorized private citizens to
ride along with officers on patrol to gain insight into the nature of
police work. Reno Dep. 12:17-13:21, Sept. 13, 2010, ECF No. 64.
5
Officer
Mitchell
identification.
Blackwell
his
name,
but
he
Pl.’s Dep. 74:7-10.
started
walking
away
did
not
have
any
Following this exchange,
from
Officer
Mitchell,
but
Officer Mitchell stepped in front of him and grabbed Blackwell
by his left arm.
It
is
Mitchell Dep. 31:5-36:17.
undisputed
that
an
altercation
ensued
between
Blackwell and Officer Mitchell and that Officer Mitchell hit
Blackwell in the head with his metal baton.
Defs.’ Joint Mot.
for Summ. J. Ex. A, Mitchell Supplemental Rep., ECF No. 38-1
[hereinafter Mitchell Suppl. Rep.]. Officer Mitchell also called
for police back-up.
Id.
Blackwell asserts that he did not
attempt to strike any officers.
See Pl.’s Aff. ¶ 31; accord
Sup. Ct. Hr’g Tr. 43, 48.
During the altercation, Blackwell began moving toward his
brother-in-law’s house nearby.
Mitchell Suppl. Rep.
Although
Blackwell stated both in his deposition and in his affidavit
that after the initial blow to his head he remained on the
ground, he also admitted that he somehow reached his brother-inlaw’s driveway.
over
in
his
Sup. Ct. Hr’g Tr. 46 (“I don’t know how I got
driveway.”).
As
he
moved
toward
the
house,
Blackwell said that he was going to get a gun and kill Officer
Mitchell and Carruth.
Mitchell Suppl. Report.
At that time,
Officer Mitchell asked Carruth to help him stop Blackwell from
reaching the house.
Id.; Mitchell Dep. 68:2-9.
6
In response,
Carruth
took
house.
Blackwell
Carruth
to
Dep.
the
Ex.
ground
18,
before
Carruth
Feb. 17, 2009; Mitchell Suppl. Rep.
he
reached
Supplemental
the
Report,
Officer Mitchell’s back-up—
Corporal Kenneth Little—then arrived and helped Officer Mitchell
handcuff
Blackwell.
Sept. 13, 2010,
Carruth
ECF
Little
No.
57.
Dep.
Once
8:1-9:7,
Corporal
13:1-12,
Little
arrived,
stepped back and offered no further help to Officer
Mitchell
or
ambulance
any
other
transported
officer.
Blackwell
Carruth
to
Hart
Dep.
25:22-23.
An
Hospital
for
County
treatment.
It is undisputed that, as a result of the altercation,
Blackwell
lost his left eye, has difficulty seeing with his
right eye, and suffered a broken jaw and broken nose.
also
undisputed
that,
as
a
result
of
the
incident,
It is
Officer
Mitchell sustained a concussion that forced him to miss work for
more than a month.
DISCUSSION
I.
Blackwell’s Federal Claims Against Carruth
To prevail on his § 1983 claim against Carruth, Blackwell
must show that Carruth was acting under color of law and that
Carruth deprived him of a right, privilege, or immunity secured
by the Constitution or a federal law.
Blackwell
asserts
right
be
to
free
that
from
Carruth
violated
unreasonable
7
See 42 U.S.C. § 1983.
his
seizure
Fourth
and
Amendment
the
use
of
excessive force.4
2d Am. Compl. ¶¶ 1, 21, ECF No. 31.
Blackwell
must also show that Carruth “may fairly be said to be a state
actor.”
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).
Assuming for purposes of the present motion that Carruth was
acting as a state actor, the Court finds that he did not deprive
Blackwell of any constitutionally-protected right.
Therefore,
Carruth is not liable under § 1983.
A.
Unreasonable Seizure
The
Court
rejects
Blackwell’s
claim
that
Carruth
unreasonably seized him because the undisputed evidence shows
that Officer Mitchell, not Carruth, made the decision to detain
Blackwell.
did
not
Blackwell
The undisputed evidence further shows that Carruth
become
involved
threatened
to
in
Blackwell’s
get
a
gun,
seizure
when
until
Officer
directed Carruth to assist in stopping Blackwell.
after
Mitchell
Under these
circumstances, no reasonable jury could conclude that Carruth
unreasonably
seized
Amendment rights.
Blackwell
in
violation
of
his
Fourth
Accordingly, Carruth is entitled to summary
judgment on this claim.
4
Blackwell also alleges that Carruth violated his Fourteenth Amendment
rights.
But he points to no evidence to support his claim.
See
generally 2d Am. Compl.
To the extent Blackwell intends to rely on
the Fourteenth Amendment’s substantive due process protections, his
claims fail because unreasonable seizure and excessive force claims
are analyzed under the Fourth Amendment. E.g. Carr v. Tatangelo, 338
F.3d 1259, 1267 n.15 (11th Cir. 2003) (citing Graham v. Connor, 490
U.S. 386, 395 (1989)).
For these reasons, the Court focuses on
Blackwell’s Fourth Amendment claims.
8
B.
Excessive Force
The Court also rejects Blackwell’s claim that Carruth used
excessive force in violation of his Fourth Amendment rights when
Carruth tackled him.
judged
under
standard.”
the
“[C]laims of excessive force are to be
Fourth
Amendment’s
objective
reasonableness
Crenshaw v. Lister, 556 F.3d 1283, 1290 (11th Cir.
2009) (internal quotation marks omitted).
The right to make an
arrest “necessarily carries with it the right to use some degree
of
physical
coercion
or
threat
thereof
(internal quotation marks omitted).
judged
on
a
case-by-case
reasonable officer
basis
to
effect
it.”
Id.
The use of force must be
“from
the
perspective
of
a
on the scene, rather than with the 20/20
vision of hindsight.”
Id. (internal quotation marks omitted).
“Not every push or shove, even if it may later seem unnecessary
in the peace of a judge’s chambers . . . violates the Fourth
Amendment.”
Graham
v.
Connor,
490
U.S.
386,
(internal quotation marks and citations omitted).
396
(1989)
“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, and rapidly evolving—
about the amount of force that is necessary in a particular
situation.”
Id. at 396-97 (internal quotation marks omitted).
In determining whether the use of force was objectively
reasonable, the Court pays “careful attention to the facts and
9
circumstances of each particular case, including the severity of
the
crime
at
issue,
whether
the
suspect
poses
an
immediate
threat to the safety of the officers or others, and whether he
is actively resisting arrest or attempting to evade arrest by
flight.”
Crenshaw, 556 F.3d at 1290 (internal quotation marks
omitted).
“In addition, other considerations include: (1) the
need for the application of force, (2) the relationship between
the need and the amount of force used, (3) the extent of the
injury inflicted and, (4) whether the force was applied in good
faith or maliciously and sadistically.”
Id. (internal quotation
marks omitted).
Blackwell
genuine
fact
has
not
dispute
pointed
in
his
to
any
favor
evidence
regarding
reasonableness of Carruth’s use of force.
creating
the
a
objective
First, Blackwell has
not demonstrated that there was no need for the application of
force, and the present record supports the use of some force.
Both
Carruth
and
Officer
Mitchell
stated
that
Blackwell
was
threatening to get a gun from a nearby house and shoot them.
See Mitchell Dep. 67:25-68:9; Carruth Dep. 30:3-4.
Further, the
amount of force Carruth used was reasonable since the record
shows that Carruth took
more.
Blackwell
to the ground
and nothing
Moreover, Blackwell has produced no evidence that Carruth
caused any of his injuries.
Carruth’s
actions
were
And there is no evidence that
malicious
10
or
sadistic;
rather,
the
evidence suggests that Carruth took Blackwell to the ground as
Officer Mitchell directed in a good faith attempt to prevent
Blackwell—who
was
in
retrieving
a
firearm
Therefore,
the
flight
from
Court
finds
from
his
Officer
Mitchell—from
brother-in-law’s
that
no
reasonable
jury
house.5
could
conclude that Carruth used excessive force against Blackwell.
Accordingly,
Carruth
is
entitled
to
summary
judgment
on
Blackwell’s excessive force claim.
II.
Blackwell’s State Law Claims Against Carruth
Defendants
also
seek
summary
judgment
state law claims against Carruth.
with
any
claims.
argument
or
evidence
to
Blackwell’s
Blackwell did not respond
support
of
his
state
law
See generally Pl.’s Br. in Opp’n to Defs.’ Mot. for
Summ. J., ECF No. 47-2.
not
in
as
relied
upon
in
“[G]rounds alleged in the complaint but
summary
judgment
are
deemed
abandoned.”
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th
Cir. 1995).
summary
Therefore, the Court grants Defendants’ motion for
judgment
as
to
Blackwell’s
state
law
claims
against
Carruth.
5
Blackwell insists that his brother-in-law does not own any guns and
that his threat, which he does not recall making, was at best an empty
one. See Pl.’s Dep. 76:20-77:23. Even if that is true, there is no
evidence that Officer Mitchell and Carruth knew it was an empty
threat.
11
III. Blackwell’s § 1983 Claim Against the City
To prevail on his § 1983 claim against the City, Blackwell
must show that there is a direct causal link between a City
policy or custom and the alleged constitutional violations.
City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).
See
Since
the Court has found that Carruth committed no constitutional
violations,
Officer
Blackwell’s
Mitchell’s
claim
alleged
against
the
violations.
City
must
Therefore,
rest
on
Blackwell
must produce some evidence from which a reasonable jury could
conclude that a City policy or custom caused Officer Mitchell to
deprive Blackwell of his Fourth Amendment rights to be free from
unreasonable seizure and excessive force.
The
only
policy
or
custom
relied
on
by
Blackwell
in
opposition to summary judgment is the City’s ride-along policy.
See 2d Am. Compl. ¶¶ 66-75; see also generally, Pl.’s Br. in
Opp’n to Defs. Reno & City of Hartwell’s Mot. for Summ. J., ECF
No. 47-3.
civilian
It is undisputed that the City’s custom was that
ride-alongs
were not to aid in any law enforcement
activity unless an officer expressly requested their assistance.
See Carruth Dep. 8:21-23 (“[T]he officer I was riding along with
would pretty much tell me just sit in the car unless they needed
my help”).
While Blackwell alleges that this custom was the
“direct and proximate cause” of his injuries, 2d Am. Compl. ¶
73-74, he fails to explain the connection between the custom and
12
the alleged constitutional violations.
And the Court can find
no evidence in the record from which a reasonable jury could
conclude
that
the
ride-along
policy
contributed
to
Officer
Mitchell’s detention of Blackwell or Officer Mitchell’s use of
force against him.
Accordingly, the City is entitled to summary
judgment on Blackwell’s § 1983 claim against it.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary
Judgment (ECF No. 38) is granted.
Given the Court’s grant of
summary judgment and Blackwell’s dismissal of other previously
asserted claims, the only claims remaining for trial are against
Officer Mitchell in his individual capacity.
IT IS SO ORDERED, this 19th day of August, 2011.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
13
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