Sims v. Smith et al

Filing 31

ORDER GRANTING 27 Motion for Summary Judgment. Ordered by Judge Marc Thomas Treadwell on 10/5/2012. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
KYLE COLBERT SIMS,
Plaintiff,
v.
OFFICER BRANDON SMITH, et al.,
Defendants.

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CIVIL ACTION NO. 5:11-CV-143 (MTT)

ORDER
This matter is before the Court on the Defendants’ Motion for Summary
Judgment. (Doc. 27). For the following reasons, the Motion is GRANTED.
I. FACTUAL BACKGROUND
This action arises out of the arrest of Plaintiff Kyle Colbert Sims on April 14,
2010. The Plaintiff attempted to pass a forged check at Famous Liquors store in
Warner Robins, Georgia. The cashier notified police of the attempted forgery, and
Officer Matt Moulton arrived first to the scene. Officer Moulton attempted to speak with
the Plaintiff regarding the forged check. The Plaintiff immediately attempted to flee the
store. At that point, Officer Moulton tried to restrain the Plaintiff, who in turn struggled
and resisted. (Doc. 27-1 at ¶ 6). The Plaintiff incapacitated Officer Moulton by shoving
him against a large cooler, causing him to severely injure his neck and to lose feeling in
his hands. (Doc. 27-3 at ¶ 10). The Plaintiff, however, claims that he did not fight or
resist arrest once Officer Moulton threw him to the ground. (Doc. 30 at 17:11-12).
Shortly before Officer Moulton’s incapacitation, Defendant Officers Brandon
Smith, Timothy Gray, Nicholas Taylor, Billy Styles, and Bradley Triplett and Defendant

Lieutenant Donald Edwards (collectively the “Defendant Officers”) arrived on the scene
and attempted to restrain the Plaintiff. The Defendants allege that the Plaintiff
continued to violently resist arrest for several minutes before being placed in handcuffs
and escorted from the building. (Doc. 27-1 at ¶ 8). The Plaintiff claims that he did not
struggle with or resist any of the Defendant Officers. (Doc. 30 at 17:15-19). The
Plaintiff further claims that the Defendant Officers used excessive force when they
arrested him by punching, kicking, and elbowing him after he put his hands in the air
and indicated he would cooperate. (Doc. 30 at 19:19-23). The Plaintiff alleges that at
some point during the altercation the Defendant Officers picked him up and threw him
several times, both in the parking lot and in the liquor store. (Doc. 30 at 27:8-10; 28:69). During the course of the arrest, none of the officers used weapons such as batons,
pepper spray, or tasers.1 (Doc. 30 at 18:17-20).
The Plaintiff pled guilty to felony obstruction of justice for violence against a
police officer and forgery in the first degree arising out of this incident. Officer Moulton
was seriously injured as a result of the Plaintiff’s actions. Since the incident, Officer
Moulton has undergone surgery on his elbow and has been referred to a neurologist for
possible surgery on his neck. (Doc. 27-1 at ¶ 10).
The Plaintiff filed this action on April 15, 2011, alleging federal claims against
Defendant City of Warner Robins for inadequate training and inadequate supervision
and against the Defendant Officers for excessive force. The Plaintiff also alleged state
law claims against the Defendant Officers for assault, battery, and intentional infliction of
emotional distress.

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The Defendants have not explicitly stated the precise type of force used to arrest the Plaintiff, other than
to state that any forced used was de minimis. (Doc. 27-2 at 8).

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The Defendants moved for summary judgment on all claims. The Plaintiff did not
file a response to the Defendants’ Brief in Support of its Motion or the Defendants’
Statement of Material Facts. Thus, the Court finds that the facts as set forth by the
Defendants in their Statement of Material Facts Not in Dispute (Doc. 27-1) are admitted.
M.D. Ga., L.R. 56. The Court has also reviewed the record and finds the facts
undisputed.
II. DISCUSSION
A. Motion for Summary Judgment Standard
Summary judgment must be granted “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). “A factual dispute is genuine only if ‘a reasonable
jury could return a verdict for the nonmoving party.’” Info. Sys. & Networks Corp. v. City
of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002) (quoting United States v. Four Parcels
of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991)). The burden rests with the moving
party to prove that no genuine issue of material fact exists. Id. The party may support
its assertion that a fact is undisputed by “citing to particular parts of materials in the
record, including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). The
district court must “view all evidence in the light most favorable to the nonmoving party,
and resolve all reasonable doubts about the facts in its favor.” Info. Sys. & Networks
Corp., 281 F.3d at 1224.

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B. Fourth Amendment Excessive Force Claim
In his Complaint, the Plaintiff alleges that the Defendant Officers used excessive
force against him during the course of his arrest. The Plaintiff contends that the
arresting officers picked him up and threw him several times and repeatedly punched,
kicked, and elbowed him despite his verbal indication to cooperate while also placing
his hands in the air. The Defendants argue that they did not use excessive force and
are entitled to qualified immunity on this claim.
“Qualified immunity offers complete protection for individual public officials
performing discretionary functions ‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.’” Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th Cir. 2012) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “There can be no doubt” that deputies
effectuating an arrest are performing discretionary duties. Lee v. Ferraro, 284 F.3d
1188, 1194 (11th Cir. 2002). “‘Once discretionary authority is established, the burden
then shifts to the plaintiff to show that qualified immunity should not apply.’” Edwards v.
Shanley, 666 F.3d 1289, 1294 (11th Cir. 2012) (quoting Lewis v. City of West Palm
Beach, 561 F.3d 1288, 1291 (11th Cir. 2009)). To meet this burden, a plaintiff must
establish that “the officer's conduct amounted to a constitutional violation” and “the right
violated was ‘clearly established’ at the time of the violation.” City of West Palm Beach,
561 F.3d at 1291. The clearly established law must provide a defendant with “fair
warning” that his or her conduct deprived the plaintiff of a constitutional right. Hope v.
Pelzer, 536 U.S. 730, 739-41 (2002). Clearly established precedent in this Circuit only

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applies to opinions of the United States Supreme Court, the Eleventh Circuit, and the
highest court of the pertinent state. McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir.
2007). This two-step analysis may be done in whatever order is deemed most
appropriate for the case. City of West Palm Beach, 561 F.3d at 1291 (citing Pearson v.
Callahan, 555 U.S. 223 (2009)).
As the Defendant Officers were effectuating a valid arrest when they allegedly
used excessive force against the Plaintiff, they were clearly acting within the scope of
their discretionary authority. Thus, the Court will first determine whether the Defendant
Officers’ conduct amounted to a constitutional violation. “Fourth Amendment
jurisprudence has long recognized 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.” Lee, 284 F.3d at 1197 (quoting Graham v. Connor, 490 U.S. 386,
396 (1989)). “[T]he force used by a police officer in carrying out an arrest must be
reasonably proportionate to the need for that force....” Id. at 1198. “[A] minimal amount
of force and injury … will not defeat an officer’s qualified immunity in an excessive force
case.” Nolin v. Isbell, 207 F.3d 1253, 1258 (11th Cir. 2000).
Whether an officer used excessive force turns on a number of factors,
such as “the severity of the crime, whether the suspect posed an
immediate threat, and whether the suspect was resisting or fleeing. Use
of force must be judged on a case-by-case basis....” Because of this lack
of a bright-line standard, “qualified immunity applies unless application of
the standard would inevitably lead” a reasonable officer in the defendant's
position to conclude that the force was unlawful.
Gold v. City of Miami (Gold I), 121 F.3d 1442, 1446 (11th Cir. 1997) (quoting Post v.
City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993)).

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Although the Plaintiff may have initially intended to commit a non-violent crime by
presenting a forged check, he immediately attempted to flee from the scene when
approached by Officer Moulton. The Plaintiff vigorously resisted arrest and violently
attacked Officer Moulton. The attack caused Officer Moulton both immediate
incapacitation and lasting serious injury. Clearly, the Plaintiff posed a danger to the
Defendant Officers. After Officer Moulton’s incapacitation, the Plaintiff continued to
violently struggle against the Defendant Officers attempting to arrest him. Despite the
Plaintiff’s resistance, the Defendant Officers never used any weapons to carry out the
arrest. Furthermore, the Plaintiff was evaluated by paramedics following the arrest who
did not order any medical treatment other than mild pain relievers. (Doc. 30 at 24:3-15).
The Plaintiff has not shown either that any force used by the Defendant Officers was not
reasonably proportionate to the need for such force under the circumstances or that he
suffered anything other than minimal injury. Thus, the Plaintiff has failed to establish a
constitutional violation on his excessive force claim, and the Defendant Officers are
entitled to qualified immunity.
C. Inadequate Training and Supervision Claims
In “limited circumstances,” inadequate training or supervision can subject a
defendant to section 1983 liability when it amounts to a city policy that causes its
employees to violate the plaintiff’s constitutional rights. Gold v. City of Miami (Gold II),
151 F.3d 1346, 1350 (11th Cir. 1998) (internal citation omitted). The plaintiff must prove
that the inadequate training or supervision constituted “deliberate indifference” to the
rights of its inhabitants. Id. “To establish a ‘deliberate or conscious choice’ or such
‘deliberate indifference,’ a plaintiff must present some evidence that the municipality

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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. (internal citations omitted). “[W]ithout
notice of a need to train or supervise in a particular area, a municipality is not liable as a
matter of law for any failure to train and supervise.” Id. at 1351. This burden is
“intentionally onerous for plaintiffs” to prevent municipalities from being subject to
respondeat superior liability. Id. at 1351 n.10.
As discussed above, the Plaintiff has failed to show that his constitutional rights
were violated during his arrest. Even assuming the Plaintiff established a violation of
his constitutional rights, aside from the bare allegations in the Plaintiff’s Complaint that
the Defendant City of Warner Robins failed to adequately train the Defendant Officers
on proper arrest procedures and that the Defendant City had notice of other incidents
involving physical abuse by its police officers, the Plaintiff has failed to present any
specific evidence to establish deliberate indifference. The Plaintiff has also failed to
present any specific evidence that a lack of appropriate training or supervision caused
the injuries he claims to have suffered at the hands of the Defendant Officers. The
Defendants have shown that each of the Defendant Officers graduated from the Police
Academy prior to the date of the Plaintiff’s arrest and were current on their continuing
education requirements. (Doc. 27-4 at ¶ 6 and 7). Because the Plaintiff has failed to
show a constitutional violation, his claims for inadequate training and supervision fail.
Thus, the Defendant City of Warner Robins is entitled to qualified immunity on these
claims.

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D. State Law Claims
The Plaintiff has alleged claims of assault, battery, and intentional infliction of
emotional distress stemming from his arrest against the Defendant Officers. State
employees may only be sued for performing their discretionary functions if they acted
with “actual malice or with actual intent to cause injury in the performance of their official
functions.” Ga. Const. Art. 1, § 2, ¶ IX(d). Georgia courts recognize that arrests by
officers are discretionary functions. Selvy v. Morrison, 292 Ga. App. 702, 665 S.E.2d
401 (2008); Reed v. DeKalb County, 264 Ga. App. 83, 589 S.E.2d 584 (2003).
Here, the Plaintiff has failed to show any actual malice by the Defendant Officers
to defeat official immunity. There is no evidence that any force was used against the
Plaintiff other than the amount of force necessary to effectuate an arrest or that the
Defendant Officers acted with intent to harm the Plaintiff. Thus, the Defendant Officers
are entitled to official immunity on the Plaintiff’s assault, battery, and intentional infliction
of emotional distress claims.
III.

CONCLUSION

For the foregoing reasons, the Defendants’ Motion for Summary Judgment is
GRANTED.
SO ORDERED, this the 5th day of October, 2012.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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