Ledbetter v. City of Kennesaw et al

Filing 50

OPINION and ORDER granting 44 City of Kennesaw and William Westenberger's Motion for Summary Judgment and granting in part and denying in part Matthew Wilson, Mark Webster, and James Scollan's 45 Motion for Summary Judgment. The Clerk is directed to terminate the City of Kennesaw, William Westenberger, and Matthew Wilson as parties. Signed by Judge Thomas W. Thrash, Jr. on 5/11/2016. (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
VICTORIA LEDBETTER,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:14-CV-3704-TWT

CITY OF KENNESAW, et al.,
Defendants.

OPINION AND ORDER

This is a civil rights action. It is before the Court on the Motion for Summary
Judgment of the City of Kennesaw and William Westenberger [Doc. 44] and the
Motion for Summary Judgment of Matthew Wilson, Mark Webster, and James
Scollan [Doc. 45]. For the reasons stated below, the City of Kennesaw and William
Westenberger’s Motion for Summary Judgment is GRANTED and Matthew Wilson,
Mark Webster, and James Scollan’s Motion for Summary Judgment is GRANTED in
part and DENIED in part.
I. Background
On the evening of November 28, 2012, at approximately 11:57 P.M., Officers
Matthew Wilson and Mark Webster of the City of Kennesaw Police Department were
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dispatched to the area of Park Drive in Kennesaw to respond to a complaint of a drunk
man causing a disturbance in a driveway.1 Officer Webster was the first officer on
scene.2 While in his police vehicle, Officer Webster could hear a male and female
yelling at each other.3 Upon exiting his vehicle, he noticed a female, who he identified
later as Victoria Ledbetter, the Plaintiff here, yelling from the window at a male
subject, telling that man to get inside the house.4 The man was eventually identified
as Kyle Long, the Plaintiff’s son.5 Officer Webster issued verbal commands to Mr.
Long to come speak with him.6 Once Officer Webster caught up to Mr. Long, he
escorted him back to the police vehicle and away from the Plaintiff.7
Officer Wilson was the second officer on scene.8 When he arrived, he noticed
Officer Webster speaking with Mr. Long, who clearly appeared to be intoxicated.9

1

Defs.’ Statement of Facts ¶ 5.

2

Id.

3

Id. ¶ 6.

4

Id.

5

Id. ¶ 7.

6

Id.

7

Id. ¶ 8.

8

Id. ¶ 9.

9

Id.

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Officer Wilson approached Officer Webster to assist him in placing Mr. Long under
arrest and patting him down.10 While Officers Wilson and Webster were dealing with
Mr. Long, they could still hear the Plaintiff yelling from the window.11 The officers
claim that the Plaintiff was cursing.12 The Plaintiff claims that she was not cursing.13
The Plaintiff began to approach the officers.14 The officers claim that the Plaintiff
approached them aggressively, while cursing, and refused to comply with commands
to return to the house.15 The Plaintiff agrees that she approached the officers, but
states, as do several witnesses, that she did not approach aggressively and did not
curse at the officers.16
Officer Webster states that when the Plaintiff was about eight to ten feet from
him, he stopped dealing with Mr. Long and told the Plaintiff that he would count to
three, after which, if she had not gone back inside of the house, he would take her to

10

Id. ¶ 10.

11

Id. ¶ 11.

12

Id.

13

Pl.’s Resp. to Defs.’ Statement of Facts ¶ 11.

14

Defs.’ Statement of Facts ¶ 12.

15

Id.

16

Pl.’s Resp. to Defs.’ Statement of Facts ¶ 12.

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jail.17 Officer Webster further states that he then counted to three at a normal pace, but
the Plaintiff continued to advance toward him in a threatening manner and refused to
comply with his orders, so he made the decision to arrest her for misdemeanor
obstruction.18 Officer Webster states that when he told the Plaintiff she was under
arrest, she immediately turned away and started to run toward her home.19 At this
point, Officer Webster states that he caught up to the Plaintiff, grabbed one of her
arms, and pulled her to the ground using a circular motion.20 The Plaintiff fell to the
ground and Officer Webster ordered her to roll over and put her hands behind her
back, but instead she physically resisted and yelled “get the fuck off me, let me go!”21
Sometime while the Plaintiff and Officer Webster were on the ground, Officer Scollan
arrived on scene.22 According to Officers Webster and Scollan, the Plaintiff continued
to resist arrest.23 Officer Scollan eventually came to assist Officer Webster, and the

17

Defs.’ Statement of Facts ¶ 14.

18

Id. ¶¶ 14-15.

19

Id. ¶ 16.

20

Id. ¶ 17.

21

Id.

22

Id. ¶ 18.

23

Id. ¶ 19.

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two were able to roll the Plaintiff over and handcuff her.24 After handcuffing the
Plaintiff, Officers Webster and Scollan gave instructions for her to stand up, but she
refused, instead kicking at the officers.25 Officers Scollan and Webster lifted the
Plaintiff off the ground and began escorting her to Officer Webster’s police vehicle;
they state that the Plaintiff was screaming, kicking, and pulling away to the point that
they practically had to carry her.26 When they reached the front of the police vehicle,
Officer Webster wanted to pat the Plaintiff down, but she resisted, pushing away and
trying to turn around.27 While Officer Webster was using a soft hands technique to
push the Plaintiff toward the car, he claims she unexpectedly lost her footing and fell
into the hood of the car, hitting her head.28 Officer Webster states that he helped the
Plaintiff to her feet and placed her in the rear of his police vehicle, noting that she did
not look injured to him.29

24

Id.

25

Id. ¶ 20.

26

Id.

27

Id. ¶¶ 21-22.

28

Id. ¶ 22.

29

Id. ¶ 23.

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The Plaintiff disputes essentially the entire account of events given by the
officers. She states that she attempted to explain to Officer Webster that her son was
not the subject of the 911 call and that the disturbance was next door, but that Officer
Webster simply replied by saying he was going to count to three.30 The Plaintiff then
immediately stepped back and put her hands above her head.31 She states that Officer
Webster then rapidly counted to three, grabbed her, and forcibly threw her on her back
on the concrete driveway.32 The Plaintiff offered no resistance to Officer Webster.33
While the Plaintiff was on the ground, Officer Webster handcuffed her hands behind
her back.34 The officers then dragged the Plaintiff backwards by the handcuffs, in such
a way that her butt was dragging on the ground.35 This caused her pajama pants to fall
down.36 She kept trying to pull them up, but had difficulty doing so due to the
handcuffs.37 One of the officers then said “let’s pick her up,” and the officers picked
30

Pl.’s Resp. to Defs.’ Statement of Facts ¶¶ 14-16.

31

Id. ¶ 16.

32

Id.

33

Id. ¶ 16.

34

Id. ¶¶ 19-20.

35

Id. ¶ 20.

36

Id.

37

Id.

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up the Plaintiff by her armpits and escorted her to the police vehicle in a semi-upright
position.38 The Plaintiff states that she was fully cooperative during this whole
process, did not act aggressively, flee from the officers, or curse at the officers.39 Once
the Plaintiff and the officers got to the police vehicle, Officer Webster bent the
Plaintiff over the hood of the car with her hands still handcuffed behind her back.40 At
this point, the Plaintiff began crying and asked Officer Webster why he was doing
this to her when she did not do anything wrong.41 Officer Webster responded by
slamming the Plaintiff’s head into the hood of the police vehicle twice.42 Each time
the Plaintiff’s head hit the hood, it made a loud banging noise, which could be heard
as far away as the next door neighbor’s residence.43 The Plaintiff’s version of events
is corroborated by Mr. Long, her husband Arthur Johnston, and her neighbors William
Lake, Nicholas Lake, and Zachery Lake.44 After Officer Webster slammed the

38

Id.

39

Id.

40

Id. ¶ 21.

41

Id.

42

Id.

43

Id.

44

Id. ¶¶ 12-23.

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Plaintiff’s head into the hood of the car, the officers high-fived each other.45 From this
incident, the Plaintiff suffered a concussion and injuries to her wrists.46
It is undisputed that following the incident, the Plaintiff and Mr. Long were
both transported to the Kennesaw Police Department for booking.47 It is also
undisputed that Officer Wilson never touched the Plaintiff and could not observe what
was happening while the Plaintiff’s head hit the police vehicle.48 Additionally, Chief
of Police William Westenberger was not present during this incident.49 Based on the
incident, the Plaintiff brought various state and federal claims against the City of
Kennesaw, Chief of Police William Westenberger, Officer Wilson, Officer Webster,
and Officer Scollan. The Defendants all move for summary judgment.
II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions, and
affidavits submitted by the parties show no genuine issue of material fact exists and

45

Ledbetter Dep. at 113.

46

Id. at 100; Pl.’s Resp. to Wilson, Webster, and Scollan’s Mot. for Summ.

J., Ex. P-1.
47

Defs.’ Statement of Facts ¶¶ 25-26.

48

Id. ¶¶ 24, 34.

49

Id. ¶ 45.

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that the movant is entitled to judgment as a matter of law.50 The court should view the
evidence and any inferences that may be drawn in the light most favorable to the
nonmovant.51 The party seeking summary judgment must first identify grounds to
show the absence of a genuine issue of material fact.52 The burden then shifts to the
nonmovant, who must go beyond the pleadings and present affirmative evidence to
show that a genuine issue of material fact does exist.53 “A mere ‘scintilla’ of evidence
supporting the opposing party’s position will not suffice; there must be a sufficient
showing that the jury could reasonably find for that party.”54
III. Discussion
A. City of Kennesaw and William Westenberger
The City of Kennesaw and the Kennesaw Chief of Police, William
Westenberger, move for summary judgment on the claims against them. The only
claim against Kennesaw is a federal municipal liability claim. In order for a
municipality to be held liable under § 1983, there must be some policy or custom of

50

FED. R. CIV. P. 56(a).

51

Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970).

52

Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

53

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

54

Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).

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the municipality that violates the plaintiff’s constitutional rights.55 There is no
evidence here of any policy or custom of Kennesaw that led to any constitutional
violation. The motion for summary judgment on the claim against the City of
Kennesaw should be granted.
Westenberger is the chief of police, or in other words, a supervising officer. In
the Eleventh Circuit, “to hold a supervisor liable a plaintiff must show that the
supervisor either directly participated in the unconstitutional conduct or that a causal
connection exists between the supervisor’s actions and the alleged constitutional
violation.”56 There is no evidence whatsoever that Westenberger was personally
involved in any constitutional violation here. Nor is there any evidence of any causal
connection between Westenberger’s actions and any constitutional violation. He
therefore cannot be held individually liable. Furthermore, the claims against
Westenberger in his official capacity are essentially claims against Kennesaw. As
discussed above, there is no evidence of any Kennesaw policy or custom that led to
any constitutional violation here. The motion for summary judgment on the claims
against Westenberger should be granted. Because this Court grants summary judgment

55

Monell v. Department of Social Servs. of N.Y., 436 U.S. 658, 690-91

(1978).
56

Keith v. DeKalb Cnty., Ga., 749 F.3d 1034, 1047-48 (11th Cir. 2014).

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on all claims against Westenberger and Kennesaw, the claims for attorney’s fees and
costs against those Defendants also fail.
B. Officers Wilson, Webster, and Scollan
The individual officers involved in the incident, Wilson, Webster, and Scollan,
move for summary judgment on the federal and state law claims against them. The
Plaintiff’s first claim against the officers is for excessive force under 42 U.S.C. §
1983. An excessive force claim brought under the Fourth Amendment is analyzed by
determining whether the amount of force used was objectively reasonable.57 The
Supreme Court has held that “‘[n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers,’ . . . violates the Fourth
Amendment.”58 It further noted that “[t]he 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 it necessary in a particular situation.”59 The Eleventh Circuit has
found, however, that “gratuitous use of force when a criminal suspect is not resisting

57

Graham v. Connor, 490 U.S. 386, 396 (1989).

58

Id.

59

Id. at 396-97 (internal citation omitted).

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arrest constitutes excessive force.”60 Additionally, “an officer who is present at the
scene and who fails to take reasonable steps to protect the victim of another officer’s
use of excessive force, can be held liable for his nonfeasance.”61
Here, there are numerous genuine disputes of material fact that prohibit this
Court from resolving the excessive force claim against Officers Webster and Scollan
on summary judgment.

Specifically, the Plaintiff and the Defendants have

diametrically opposed versions of the events that took place surrounding the
Plaintiff’s arrest. The Defendants claim that the Plaintiff was cursing and physically
resisting arrest, that they used only the soft-hands force necessary to restrain her, and
that she hit her head by falling into the hood of the police vehicle.62 The Plaintiff and
other bystander witnesses, however, claim that she was not cursing, was not resisting
arrest, that Officer Webster threw her onto the ground, that Officers Webster and
Scollan dragged her to the police vehicle while she was handcuffed, and that Officer
Webster twice smashed her head into the hood of the police vehicle.63 Taking the facts
in the light most favorable to the Plaintiff, as the Court must on summary judgment,

60

Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008).

61

Id.

62

Defs.’ Statement of Material Facts ¶¶ 13-23.

63

Pl.’s Resp. to Defs.’ Statement of Material Facts ¶¶ 13-23.

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there is a factual dispute about whether the Plaintiff was resisting arrest and whether
the amount of force used by Officer Webster was objectively reasonable. If, as the
Plaintiff and the witnesses claim, Officer Webster smashed the Plaintiff’s head into
the hood of the police vehicle while the Plaintiff was handcuffed and not resisting,
that would be a gratuitous use of force, and therefore excessive under Hadley.
Additionally, because Officer Scollan was potentially in a position to stop Officer
Webster, a reasonable jury could find him liable for his nonfeasance under Hadley.
Officers Webster and Scollan claim that regardless of the factual dispute, they
are entitled to qualified immunity on the excessive force claim. Qualified immunity
shields officers from liability for civil damages unless their conduct violated “clearly
established statutory or constitutional rights of which a reasonable person would have
known.”64 Given the factual dispute discussed above and the Eleventh Circuit
precedent in Hadley, this Court cannot grant summary judgment to Officers Webster
and Scollan on the basis of qualified immunity. If the Plaintiff’s version of events is
true, the officers violated clearly established law through gratuitous use of force. If the
officers’ version of events is true, they did not. Because the facts are disputed, Officer
Webster and Officer Scollan’s motion for summary judgment should be denied.

64

Hope v. Pelzer, 536 U.S. 730, 739 (2002).

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Officer Wilson has a different argument as to why summary judgment should
be granted on the claim against him. The Plaintiff admits that Officer Wilson never
touched her.65 She also admits that Officer Wilson could not see any of the
interactions between Officers Webster and Scollan and herself.66 Because the Plaintiff
admits that Officer Wilson never touched her, the only theory on which an excessive
force claim against him could be successful is a bystander theory. The bystander
theory must fail, however, because Officer Wilson could not observe what was
happening and therefore could not have taken any reasonable steps to prevent the use
of any excessive force. The motion for summary judgment on the excessive force
claim against Officer Wilson should be granted.
The officers also move for summary judgment on the state law claim for assault
and battery against them, arguing that they are entitled to official immunity under
Georgia law. “The making of a warrantless arrest for conduct occurring in an officer’s
presence is a discretionary act that will not give rise to personal liability unless the
officer acted with actual malice or intent to cause injury.”67 Proof of actual malice or
intent to cause injury is a high standard. Profanity, threats, and even slamming a

65

Defs.’ Statement of Facts ¶ 34.

66

Id. ¶ 24.

67

Selvy v. Morrison, 292 Ga. App. 702, 704 (2008).

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suspect’s head against a police vehicle have been found by the Georgia Court of
Appeals to be insufficient proof of actual malice.68 Given the evidence here, the Court
cannot find any evidence rising to the high standard set by the Georgia courts. First,
as the Plaintiff admits that Officer Wilson never touched her, there is certainly no
evidence of actual malice or intent to injure by him. As to Officers Webster and
Scollan, given the holding of the Georgia Court of Appeals in Tittle that even
slamming a suspect’s head into a car is not enough to show actual malice, this Court
finds that there is no evidence of actual malice from them either. The motion for
summary judgment on the Georgia state law claim for assault and battery should be
granted as to all three officers.
IV. Conclusion
For the reasons stated above, the Motion for Summary Judgment of the City of
Kennesaw and William Westenberger [Doc. 44] is GRANTED and the Motion for
Summary Judgment of Matthew Wilson, Mark Webster, and James Scollan [Doc. 45]
is GRANTED in part and DENIED in part. The Clerk is directed to terminate the City
of Kennesaw, William Westenberger, and Matthew Wilson as parties.

68

Tittle v. Corso, 256 Ga. App. 859, 862-63 (2003).

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SO ORDERED, this 11 day of May, 2016.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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