Brown v. City of Atlanta et al
Filing
181
OPINION & ORDER: the Court DENIES Defendant Matthew Johns's Motion to Strike the Opinions of Sergeant Scott DeFoe 166 and DENIES his Motion to Strike Opinions in Plaintiff Payne's Medical Records 170 . The Court DENIES Defendant Matthew Johns's Motion for Summary Judgment 162 and DENIES Plaintiffs' Motion for Partial Summary Judgment Against Matthew Johns 133 . The Court GRANTS Defendant City of Atlanta's Motion for Summary Judgment 141 and DENIES Plaintiffs 9; Motion for Summary Judgment as to Defendant City of Atlanta 148 . The Court DIRECTS the Clerk to terminate Defendant City of Atlanta as a party defendant. The Court ORDERS the rest of this case to mediation. The parties may retain the mediator to mediate this case. The expense of a retained mediator must be paid by the parties. The parties, alternately, may request that the Court appoint a magistrate judge to conduct the mediation. The parties are not required to pay for mediation by a magi strate judge. The parties shall advise the Court, on or before October 13, 2020, of their mediation preference. If they elect to retain their own mediator, the parties shall identify the mediator on or before October 27, 2020. The parties must have p resent at the mediation a person with authority to settle this litigation. The parties shall, within five days after the mediation, notify the Court in writing whether mediation resulted in a settlement of this action. The Court STAYS this case pending mediation. The Court DIRECTS the Clerk to ADMINISTRATIVELY CLOSE this case during the period of the stay. Signed by Judge Michael L. Brown on 9/21/20. (bjh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
Zabora Brown and Antraveious
Payne,
Plaintiffs,
Case No. 1:17-cv-04850
Michael L. Brown
United States District Judge
v.
City of Atlanta and Matthew
Johns,
Defendants.
________________________________/
OPINION & ORDER
After a highspeed car chase in September 2015, Defendant Officer
Matthew Johns beat Plaintiff Antraveious Payne before arresting him,
sending him to the hospital with injuries. Payne, along with his mother
Plaintiff Zabora Brown, allege Defendant Johns’s use of force was
unconstitutionally excessive under 42 U.S.C. § 1983.
They also sue
Defendant City of Atlanta, seeking to impose municipal liability. All
parties have filed motions for summary judgment. (Dkts. 133; 141; 148;
162.) The Court addresses each motion.
I.
Factual Background
A.
The Car Chase
On the afternoon of September 15, 2016, Atlanta Police Department
(“APD”) officers Blackman and Kennedy were on their regular patrol in
downtown Atlanta when they spotted a black BMW with a stolen license
plate. (Dkts. 141-1 ¶ 1; 152 ¶ 1.) The officers tried to follow the vehicle,
but it sped away too quickly. (Dkts. 141-1 ¶¶ 3–4; 152 ¶¶ 3–4.) Officer
Blackman used his radio to call out a description of the car and its
direction of travel. Officer Pagan spotted the BMW zoom past him on
Interstate 75. (Dkts. 141-1 ¶¶ 5–7; 152 ¶¶ 5–7.) He notified the radio
dispatcher of the suspect’s location and gave chase. (Dkts. 141-1 ¶¶ 5–
7; 152 ¶¶ 5–7.) During his continued pursuit, Officer Pagan updated
other officers as to his location. (Dkts. 141-1 ¶ 8; 152 ¶ 8.) APD Officers
Harp and Rolfe heard the radio communications and joined the chase.
(Dkts. 141-1 ¶ 9; 152 ¶ 9.)
Defendant Officer Matthew Johns, who was assigned to a
specialized unit of APD known as the Atlanta Proactive Enforcement and
Interdiction Unit (“APEX”), heard the radio calls about the pursuit. (Dkt.
133-1 ¶ 9.) He joined the chase when it passed his location. (Dkt. 141-1
2
¶ 24; 152 ¶ 24.) In doing so, he disobeyed a direct order to all APEX
officers not to get involved in the pursuit. (Dkts. 133-1 ¶ 10; 141-1 ¶ 56.)1
He also was not permitted to drive a police vehicle that day because he
had been in a prior accident.2 (Dkt. 133-1 ¶ 11.)
The pursuit reached speeds of nearly 110 miles per hour, traveling
on both highways and surface roads and through commercial areas and
residential neighborhoods. (Dkts. 141-1 ¶ 10; 152 ¶ 10.) After more than
ten minutes, a Georgia State Patrol Officer caught up with the pursuing
APD officers. (Dkts. 141-1 ¶ 13; 152 ¶ 13.) The trooper stopped the BMW
using a quick-action pit maneuver. The pursuit lasted about fifteen
minutes. (Dkts. 141-1 ¶ 17; 152 ¶ 17.)
Defendant Johns claims the only reason he joined the pursuit was
because, based on the duration of the pursuit, he believed the occupants
of the vehicle were armed and dangerous. (Dkt. 133-1 ¶ 11.) Though the
subjective beliefs of Defendant Johns are immaterial at this time, the
Court likewise finds no evidence that anyone else believed that those
riding in the vehicle were armed and dangerous. (Id. ¶¶ 12–14.)
2 Plaintiffs also bring up Defendant Johns’s prior motor vehicle accidents
in 2013, 2014, and 2016. (Dkt. 133-1 ¶¶ 35–36.) The Court agrees with
Defendant Johns, however, that these facts are immaterial to the Court’s
determination on summary judgment here. (See Dkt. 161 at 3.)
1
3
B.
The Immediate Aftermath
Dashcams (or what APD calls “WatchGuard”) captured most of the
interactions between police (including Defendant Johns) and the
occupants of the car (including Plaintiff Payne) immediately following
the chase. (Dkt. 144, Ex. C.) The Court has reviewed all available video
footage. (Dkts. 142; 144.) Supplemented by the parties’ statements of
material facts, the Court summarizes those critical moments:
After the successful pit maneuver by the state trooper, APD Officers
Harp, Rolfe, and Pagan drew their service weapons and approached the
car. (Dkts. 141-1 ¶ 15; 152 ¶ 15.) APD Officers Harp and Pagan, both
standing on the driver’s side of the car, positioned themselves to extract
and arrest the driver and any backseat passengers. (Dkts. 141-1 ¶ 20;
152 ¶ 20.) On the other side of the car, Officers Rolfe and Johns moved
into position to grab occupants from the passenger side. (Dkts. 141-1
¶ 23; 152 ¶ 23.)
Three people jumped out of the BMW and immediately laid on the
ground. (Dkts. 141-1 ¶ 18; 152 ¶ 18.)3 Officer Harp grabbed the driver
Likely because the driver never put the vehicle in park, the car
continued to roll slowly down a slight decline (after everyone had jumped
out) and stopped when it hit a tree. (Dkts. 141-1 ¶ 19; 152 ¶ 19.)
3
4
and detained him without incident. (Dkt. 134-24 at 73:10–15.) Officer
Rolfe grabbed the backseat passenger, detained him, and handcuffed him
on the ground. (Dkts. 141-1 ¶ 26; 152 ¶ 26.) Payne, who had been sitting
in the front passenger seat, quickly flopped out of the car and laid on his
belly. Defendant Johns exited his patrol vehicle and ran up to Payne.
With forward momentum, Defendant Johns kicked Payne in the head.
(Dkts. 133-1 ¶ 16; 148-1 ¶ 1; 153-1 ¶ 1.) Johns then used his foot, lifting
it vertically and stomping down on the back of Payne’s head as Payne
was lying face down on the ground. (Dkt. 133-1 ¶ 18.) Defendant Johns
then knelt on Payne’s back near his head and struck him in the left side
of his body while trying to handcuff him. He punched Payne again in the
head with a closed left-handed fist. (Id. ¶ 19.)
As Defendant Johns struggled to put Payne’s left wrist in
handcuffs, he punched him several more times in the abdomen. (Id.
¶ 20.) He testified that he struck him with a closed fist in the head,
stomach, and ribcage because he “wouldn’t give him his hands.” (Dkt.
141-1 ¶ 29.)
Defendant Johns also described his use of force as an
attempt to push Payne onto the ground and gain control of his hands
under his body. (Dkt. 133-2 at 5.) Yet a careful review of the video shows
5
that Payne’s arms were not underneath his body when Defendant Johns
first kicked him. (Dkt. 133-2 at 6.) The video also appears to show that,
at the time of the incident, Payne was not struggling, trying to flee, or
resisting arrest. (Dkts. 148-1 ¶ 2; 153-1 ¶ 2.) Defendant Johns’s body
language also suggests he was not threatened by Payne or in fear for his
own safety. The video shows him looking around at his fellow officers
before he handcuffed Payne or even pulled his cuffs out. (Dkt. 144, Ex. C
at 14:14–19.) At one point, the video appears to show Defendant Johns
with his full body weight on top of the then-fifteen-year-old Payne, one
knee on the back of the boy’s neck and the other on the boy’s lower back
and side. (Id. at 14:40.)
The APD officers placed the suspects under arrest as other officers
arrived on the scene. (Dkts. 141-1 ¶ 31; 152 ¶ 31.) Within a minute of
the stop, Senior Patrol Officer Amy Soeldner arrived and saw blood on
Payne’s mouth and near one of his ears. (Dkts. 141-1 ¶ 32; 152 ¶ 32.)
She called for an ambulance to take Payne to Grady Hospital for
evaluation and treatment. (Dkts. 141-1 ¶ 33; 152 ¶ 33.)
In total, Defendant Johns kicked and punched Payne in the head,
neck, and torso for a period of around thirty-six seconds. (Dkt. 133-1
6
¶ 69.) He had his knee on Payne’s neck for even longer. (Dkt. 144, Ex. C
at 14:07–15:00.) Payne received injuries and abrasions to his head and
face and suffered a concussion requiring an overnight hospital stay.
(Dkts. 133-1 ¶ 71; 141-1 ¶ 1; 152 ¶ 1.)
C.
APD’s Disciplinary Response to the Incident
APD maintains a policy that prohibits employees from the
unnecessary or unreasonable use of force against any person or property.
(Dkts. 141-1 ¶ 41; 152 ¶ 41; 153-1 ¶ 40.)
After the incident, the
department’s Office of Professional Standards (“OPS”) opened an
investigation. (Dkts. 133-1 ¶ 2; 148-1 ¶¶ 9, 37; 153-1 ¶¶ 9, 37.) Sergeant
Peter Malecki determined Payne had not struggled with Defendant
Johns, resisted arrest, or disregarded orders. (Dkt. 133-1 ¶ 24.) OPS
thus found Defendant Johns’s use of force against Payne was
unreasonable, unnecessary, and unauthorized. (Dkts. 141-1 ¶ 57; 152
¶ 57; 148-1 ¶ 33; 153-1 ¶ 33.)
APD terminated Defendant Johns’s
employment and dismissed him from the force. (Dkts. 133-1 ¶ 3; 141-1
¶ 59; 152 ¶ 59; 153-1 ¶ 41.)
7
D.
The Criminal Proceedings Against Defendant Johns
A Fulton County grand jury eventually returned an indictment
against Defendant Johns, charging him with four counts of aggravated
assault, two counts of making false statements and writings, and two
counts of violating his oath of office. (Dkts. 133-1 ¶¶ 4, 25; 148-1 ¶ 5; 1531 ¶ 5.) Three of the assault charges stemmed from Defendant Johns
kicking Payne with his foot. The fourth involved him kneeling on Payne’s
neck and throat and applying pressure to impede Payne’s normal
breathing. (Dkt. 133-1 ¶¶ 26–29.) The false statement counts charged
Defendant Johns with knowingly and willfully making false statements
during the investigation by stating to his supervisor that Payne received
his injuries from jumping out of a moving vehicle (and that he did not use
force against Payne) and by writing in an APD report that Payne tried to
stand up causing Defendant Johns to push Payne to the ground with his
leg. (Dkt. 133-1 ¶¶ 30, 31.)
Defendant Johns pleaded guilty to all counts in the indictment.
(Dkts. 141-1 ¶ 60; 152 ¶ 60.) During his plea colloquy, he acknowledged
under oath that he understood the charges against him and understood
his right to plead guilty or not guilty. (Dkt. 133-1 ¶ 38–39.) He also
8
acknowledged that his plea was voluntary and that he was pleading
guilty because he was in fact guilty. (Id. ¶¶ 40–41.) After accepting the
guilty plea, Fulton County Superior Court Judge Constance Russell
sentenced Defendant Johns to twenty years in prison, to serve five years.
(Dkts. 133-1 ¶¶ 5–6; 148-1 ¶ 6; 153-1 ¶ 6.)4
In this civil trial, however, Defendant Johns contends that,
although he pleaded guilty in his criminal proceedings, he is not guilty of
any count within the indictment. (Dkt. 133-1 ¶ 42.) He instead claims
that he pleaded guilty only because his “lawyer at the time quit the day
of the trial” and “we only had 30 days to prepare for trial.” (Id. ¶ 43.)
Defendant Johns claims he did not commit the acts attributed to him.
(Id. ¶ 7.)
E.
Defendant Johns’s Background
Before becoming a police officer in 2010, Defendant Johns was a
member of the United States Marine Corps, serving four years and
completing two deployments in Iraq. (Dkts. 148-1 ¶¶ 7, 9; 153-1 ¶¶ 7, 9.)
Plaintiffs include statements of the sentencing judge in their statement
of material facts. (Dkt. 133-1 ¶¶ 51–56.) Defendant Johns focuses on
how Judge Russell was not qualified as a testifying expert. (Dkt. 161 at
4.) The Court, however, finds those statements immaterial to the Court’s
determination at summary judgment.
4
9
He was involved in multiple Improvised Explosive Device (IED) attacks,
with two directly hitting his vehicle. (Dkt. 148-1 ¶ 10.) Defendant Johns
was discharged in January 2009. (Dkts. 148-1 ¶ 7; 153-1 ¶ 7.) During a
Veterans Administration evaluation ten months later, Johns reported
exposure to traumatic events from combat that included casualties of
civilians, fellow soldiers, and enemies. (Dkt. 148-1 ¶ 11.) He reported
feeling vigilant and having feelings of irritability, a shortened temper,
difficulty
sleeping,
difficulty
concentrating,
forgetfulness,
and
depression. (Id. ¶ 12.)
Defendant Johns testified that his PTSD began with his first
deployment to Iraq. (Id. ¶ 29; Dkt. 153-1 ¶ 29.) He said he was suffering
from PTSD when APD hired him in 2010. (Id.) He also testified that —
throughout his time with APD — he experienced nightmares and panic
attacks and was constantly on alert and jittery. (Dkts. 148-1 ¶ 30; 153-1
¶ 30.)
F.
Defendant City of Atlanta’s Psychological Screening
Procedures for New Hires
APD requires all new recruits to undergo a psychological screening
to identify anyone with serious disorders of thought, mood, personality,
or impulse control. (Dkts. 148-1 ¶ 13; 153-1 ¶ 13.) The screening is
10
intended to ensure that an applicant is neither seriously exploitative,
manipulative, nor hostile, and is adequately able to relate to citizens and
peers. (Dkts. 148-1 ¶ 14; 153-1 ¶ 14.) All APD applicants must also
submit to a pre-employment psychological interview conducted by a
licensed psychologist. (Dkts. 148-1 ¶ 15; 153-1 ¶ 15.)
Plaintiffs claim Defendant City of Atlanta failed to conduct the
necessary
investigation
into
Defendant
Johns’s
psychological
background. (Dkt. 148-1 ¶ 16.) The City says its psychologist, Dr. Joseph
Hill, conducted the required psychological screening and determined
Defendant Johns could work as a police officer. (Dkt. 153-1 ¶¶ 16–17.)
It says Dr. Hill concluded Defendant Johns exhibited no gross
psychopathology, cognitive deficits, or personality factors that would
interfere with his ability to be an APD officer. (Dkts. 148-1 ¶ 18; 153-1
¶ 18.) Defendant Johns had told Dr. Hill he was a combat veteran. But
Dr. Hill did not investigate further to learn how much that combat
experience may have affected Defendant Johns’s fitness to be a police
officer. (Dkts. 148-1 ¶ 19; 153-1 ¶ 19.)
Despite acknowledging that military and combat experience may
impact a person’s psychological fitness, Dr. Hill does not typically review
11
a combat veteran’s military records during psychological screenings.
(Dkts. 148-1 ¶ 20; 153-1 ¶ 20.) He claims, however, that Defendant Johns
did not exhibit any signs of PTSD at his initial applicant screening in
October 2009. (Dkts. 148-1 ¶ 22; 153-1 ¶ 22.)
Plaintiffs criticize Dr. Hill’s evaluation of Defendant Johns, arguing
he included no test for PTSD. (Dkt. 148-1 ¶ 23.) The City counters that
Dr. Hill asked whether Defendant Johns experienced any symptoms
commonly associated with PTSD, and Defendant Johns specifically
denied all such symptoms. (Dkt. 153-1 ¶ 23.) Dr. Hill admits, however,
that Defendant Johns is not currently fit to serve as a police officer
because he suffers from complex PTSD. (Dkts. 148-1 ¶ 24; 153-1 ¶ 24.)
During the criminal proceedings, Dr. David Anthony conducted
another psychological evaluation of Defendant Johns. He testified that
Defendant Johns’s PTSD might or might not have played a role in
Defendant Johns’s actions on the date of the incident. (Dkt. 153-1 ¶ 25.)
Dr. Anthony also concluded that Defendant Johns should not be a police
officer because “nobody that has PTSD untreated should be a police
officer or have a firearm.” (Dkts. 148-1 ¶ 27; 153-1 ¶ 27.)
12
G.
Testimony of Expert Dr. William Gaut, PhD
Dr. William Gaut offered expert testimony about APD’s training
techniques. He testified that “APD regularly teaches officers to use the
very physical techniques for which Officer Johns [was] criminally
charged.” (Dkt. 148-1 ¶ 66.) He also identified an APD PowerPoint
presentation on the use of force, which (he says) is used to teach APD
officers to “hit them back first.” (Id. ¶ 67.) The City does not deny the
substance of this fact but contends officers are trained to use such
techniques only against resisting suspects.
Dr. Gaut also testified APD officers learn to use closed fist punches
to muscular target areas of a resisting offender. (Id. ¶¶ 70–72; Dkt. 1531 ¶¶ 70–72.)
Areas such as the rib cage and brachial junctions are
particularly sensitive to pain without causing serious injury. (Dkts. 1481 ¶¶ 70–72; 153-1 ¶¶ 70–72.) Together with self-defense, using closed
fist punches are taught as “pain compliance” techniques to “encourage
the offender to surrender.” (Dkts. 148-1 ¶¶ 70–72; 153-1 ¶¶ 70–72.) So,
in this instance, as Payne’s head and upper body again began to rise —
an indication of resistance — the video shows Defendant Johns using a
punch to the back of his head. (Dkts. 148-1 ¶ 73; 153-1 ¶ 73.)
13
Dr. Gaut identified and analyzed dozens of APD Use of Force
reports in which supervisors determined officers’ use of closed-fist strikes
and other techniques were “reasonable force” and “justified and in
compliance with APD policies and Georgia code.” (Dkts. 148-1 ¶ 74; 1531 ¶ 74.) Again, the City does not deny this fact but clarifies that the
officers’ actions were found reasonable and justified because they were
used against resisting suspects. (Dkt. 153-1 ¶¶ 74–75.)
Plaintiffs contend APD allows officers to use compliance strikes to
include kicking and punching suspects, even when a subject is not
resisting. (Dkt. 148-1 ¶ 77.) Dr. Gaut also testified that Defendant
Johns’s actions against Payne are “reflective of what other officers did in
the same or similar circumstances as to what Officer Johns did and they
were all found to be justifiable and in compliance with APD policies.” (Id.
¶ 79.) But the City counters that Dr. Gaut failed to identify a single use
of force report that allowed officers to use compliance strikes when a
subject was not resisting or flouting an officer’s commands. (Dkt. 153-1
¶ 77.) The crux of the issue, then, is whether the suspect is resisting or
refusing to obey an officer’s commands.
14
For purposes of municipal
liability, all parties agree that if Payne was not resisting, Defendant
Johns’s use of force would not be proper or reasonable.
H.
Performance Reviews of Defendant Officer Johns and
Early Warning System
Plaintiffs contend that Defendant Johns received midyear and
annual performance evaluations from his hiring in 2009 through 2012.
But no record exists of his annual performance evaluation from 2014
through his termination in 2017. The City also kept no record of any
midyear performance evaluations from 2013 through his termination,
even though its policies required it to maintain the records.
APD also employs an “Early Warning System” that allows it to
identify employees with patterns of misbehavior. (Dkts. 148-1 ¶ 88; 1531 ¶ 88.) Based on other use of force incidents in April 2015, March 2015,
October 2013, and September 2014, Defendant Johns met the Early
Warning System criteria and should have been flagged. (Dkts. 148-1
¶ 91; 153-1 ¶ 91.) But OPS failed to launch the Early Warning Review
process for Defendant Johns as required by APD policy. (Dkts. 148-1
¶ 92; 153-1 ¶ 92.)
The City contends that OPS relied on another database (IAPro) to
provide alerts, and it never notified OPS of Defendant Johns’s status.
15
(Dkt. 153-1 ¶ 92.) The City, however, does not contest the underlying
fact: Defendant Johns should have been flagged by the Early Warning
Review system but somehow slipped through the cracks and never was.
(Dkts. 148-1 ¶ 99; 153-1 ¶ 99.)
I.
Procedural History
In November 2017, Plaintiffs sued Defendants Johns and the City
of Atlanta, seeking compensatory damages for violating Plaintiff Payne’s
constitutional and statutory rights. (Dkt. 1.)
This case has had a long and convoluted procedural history in the
interim, however.
The City of Atlanta did not provide counsel to
Defendant Johns. Because of a mistaken entrance of appearance on his
behalf, he never answered the complaint. (Dkts. 12 at 1; 94 at 10.)
Plaintiffs sought a default judgment against him. (Dkt. 56.) The Court
granted Defendant Johns in forma pauperis status and appointed him
counsel. (Dkts. 77; 78.) That lawyer successfully argued against default
judgment. The parties then agreed to stay this case pending resolution
of Defendant Johns’s criminal charges in Fulton County Superior Court.
(Dkts. 91; 93; 94.)
16
Following his guilty plea and sentencing, this matter resumed.
(Dkts. 99; 100.) And after the close of discovery, the parties filed their
motions for summary judgment. (Dkts. 133; 141; 148; 162.) The Court
considers each of those pending motions, plus two motions to strike.
(Dkts. 166; 170.)
The Court notes that, in responding to Plaintiffs’ motion or in
support of his own, Defendant Johns largely disregarded Local Rule
56.1B, which requires a nonmovant to refute directly each of a movant’s
facts with concise responses and specific citations to evidence.
LR
56.1B(2)(a)(2), NDGa. For the most part, Defendant Johns simply denies
Plaintiffs’ claims of undisputed facts, stating that “the underlying
opinions and assumptions are not correct.” (See, e.g., Dkt. 161 at 1.) He
also failed to file his own statement of material facts about which he
believes genuine issues exist.
See LR 56.1B(2)(b) (requiring the
nonmovant to file a “statement of additional facts which the respondent
contends are material and present a genuine issue for trial”).
Because Defendant Johns violated Local Rule 56.1B, the Court
considers admitted each of Plaintiffs’ facts to which he failed to respond
properly. See LR 56.1B(2) (“This Court will deem each of the movant’s
17
facts as admitted unless the respondent . . . directly refutes the movant’s
fact with concise responses supported by specific citations to
evidence . . . .”); Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir.
2009) (“Plaintiffs[’] failure to comply with local rule 56.1 is not a mere
technicality.”); see also Smith v. Mercer, 572 F. App’x 676, 678 (11th Cir.
2014) (noting that district court properly found defendants’ facts
admitted under Local Rule 56.1 where plaintiff responded to facts
without including citations to evidence of record).
The Court notes,
however, that many of Plaintiffs’ facts also contain inappropriate
argumentative assertions and legal conclusions. (See, e.g., Dkts. 133-1
¶ 17; 148-1 ¶¶ 96–97.) The Court disregards any such facts that do not
conform to the Local Rules. See LR 56.1B, NDGa.
This determination, however, does not discharge Plaintiffs’
burden at summary judgment. The Court must still review the evidence
to determine whether, based on the undisputed facts, they are entitled to
judgment as a matter of law. Mann, 588 F.3d at 1303 (citing Reese v.
Herbert, 527 F.3d 1253, 1269 (11th Cir. 2008)).
18
II.
Legal Standard
A.
Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure 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). A fact is material if
“it might affect the outcome of the suit under the governing law.”
W. Grp. Nurseries, Inc. v. Ergas, 167 F.3d 1354, 1360 (11th Cir. 1999).
A factual dispute is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. at 1361.
The party moving for summary judgment bears the initial burden
of showing a court, by reference to materials in the record, that there is
no genuine dispute as to any material fact. Hickson Corp. v. N. Crossarm
Co., 357 F.3d 1256, 1260 (11th Cir. 2004). A moving party meets this
burden by “showing—that is, pointing out to the district court—that
there is an absence of evidence to support the nonmoving party’s case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The movant, however,
need not negate the other party’s case. Id. at 323.
19
Once the movant has adequately supported its motion, the
nonmoving party then has the burden of showing that summary
judgment is improper by coming forward with “specific facts” showing a
genuine dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). Ultimately, there is no “genuine issue for trial”
when “the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.” Id. “[T]he mere existence of some
alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48.
Throughout its analysis, a court must “resolve all reasonable doubts
about the facts in favor of the non-movant, and draw all justifiable
inferences in his or her favor.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1115 (11th Cir. 1993). “It is not the court’s role to weigh conflicting
evidence or to make credibility determinations; the non-movant’s
evidence is to be accepted for purposes of summary judgment.” Mize v.
Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996).
20
B.
Motion to Strike or Exclude
Trial courts serve a critical gate-keeping function for the
admissibility of expert testimony. Daubert v. Merrell Dow Pharms., Inc.,
509 U.S. 579, 589 (1993).
Expert testimony can be particularly
persuasive, and as such, the role of the trial court is to keep speculative
and unreliable testimony from reaching the jury.
Id. at 595; see
McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir.
2002).
Federal Rule of Evidence 702 allows a qualified expert to give
opinion testimony when it is necessary to help the trier of fact understand
the issues, the opinion reflects enough facts or data, the expert produced
it using reliable principles and methods, and those principles and
methods were reliably applied to the facts of the case. Fed. R. Evid. 702.
The Eleventh Circuit employs a “rigorous” three-part inquiry to
determine whether an expert’s testimony meets these admissibility
criteria. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562
(11th Cir. 1998). Expert testimony is admissible when
(1) the expert is qualified to testify competently regarding the
matters he intends to address; (2) the methodology by which
the expert reaches his conclusions is sufficiently reliable as
determined by the sort of inquiry mandated in Daubert; and
21
(3) the testimony assists the trier of fact, through the
application of scientific, technical, or specialized expertise, to
understand the evidence or to determine a fact in issue.
Id. (internal footnote omitted). Thus, the admissibility of an expert’s
opinion turns on three things: qualifications, reliability, and helpfulness.
See United States v. Frazier, 387 F.3d 1244, 1260–62 (11th Cir. 2004).
While the trial court’s role is critical, it “is not intended to supplant
the adversary system or the role of the jury.” Allison v. McGhan Med.
Corp., 184 F.3d 1300, 1311 (11th Cir. 1999).
When the accuracy of
evidence is the issue — rather than its admissibility — the trial court
should allow the judicial process to resolve the matter. Daubert, 509 U.S.
at 596 (“Vigorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.”).
C.
Qualified Immunity Standard
“Qualified immunity offers complete protection for government
officials sued in their individual capacities if their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Vinyard v. Wilson, 311 F.3d 1340,
1346 (11th Cir. 2002) (internal quotation marks omitted). So “[q]ualified
22
immunity gives government officials breathing room to make reasonable
but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd,
563 U.S. 731, 743 (2011).
It allows 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). When
properly applied, qualified immunity thus “protects all but the plainly
incompetent or those who knowingly violate the law.” al-Kidd, 563 U.S.
at 743 (internal quotation marks omitted).
Qualified immunity may attach only when the officer is “acting
within the scope of his discretionary authority when the allegedly
wrongful acts occurred.” Grider v. City of Auburn, 618 F.3d 1240, 1254
n.19 (11th Cir. 2010). The parties agree Defendant Johns acted within
the scope of his discretionary authority at the time of the incident. (Dkts.
133-1 ¶ 1; 161 at 1.) In a motion for summary judgment seeking the
application of qualified immunity, Plaintiffs thus have the burden of
showing that it is unavailable to Defendants. See Lee, 284 F.3d at 1194.
The qualified immunity analysis presents two questions: first,
whether the allegations establish the violation of a constitutional right;
and second, if so, whether the constitutional right was clearly established
23
when the violation occurred. Hadley v. Gutierrez, 526 F.3d 1324, 1329
(11th Cir. 2008). These distinct questions “do not have to be analyzed
sequentially.” Fils v. City of Aventura, 647 F.3d 1272, 1287 (11th Cir.
2011). Instead, a court may address them in either order, although a
plaintiff’s failure on either prong dooms his claim. Id.
On summary judgment, the burden thus lies with Plaintiffs to show
that genuine disputes of material fact exist that Defendants’ actions
violated the relevant constitutional rights and that the rights were
clearly established at the time of the arrest. See Hadley, 526 F.3d at
1329.
III. Discussion & Analysis
A.
Motions to Strike
Defendant Johns has moved to exclude the expert opinions of
Sergeant Scott DeFoe and also any references to “concussion” in Payne’s
medical records. (Dkts. 166; 170.) Plaintiffs oppose both motions. (Dkts.
169; 172.)
1.
Motion to Exclude Opinions of Sergeant DeFoe
(Dkt. 166)
In support of his motion to exclude the testimony of Sergeant Scott
DeFoe, Defendant Johns argues that the opinions are not relevant to
24
matters at issue in the case and do not derive from reliable principles and
so must be excluded. (Dkt. 166 at 5.)
In opposition, Plaintiffs assert that Mr. DeFoe, as a retired police
officer and law enforcement expert, is qualified to provide expert
testimony in this case. (Dkt. 169 at 13.) They also argue that his opinions
about professional and ethical standards of law enforcement are relevant
and admissible as helpful to the jury. (Id.) The Court agrees with
Plaintiffs that Sergeant DeFoe’s testimony is not subject to exclusion.
This is because he is qualified to testify, his testimony would be helpful
to the jury, and his opinions follow reliable principles. And Defendant
Johns has simply not shown otherwise. The Court thus denies Defendant
Johns’s motion to exclude the expert testimony of Sergeant Scott DeFoe.
(Dkt. 166.)
2.
Motion to Strike References to “Concussion”
(Dkt. 170)
Defendant Johns next moves to exclude any reference to
“concussion” in Payne’s medical records as unreliable under Daubert.
(Dkt. 170.) He argues that the diagnostic opinions are inadmissible
under Rule 803(4), the injuries are not attributed to Defendant Johns,
25
and no scientific basis exists to conclude Payne had a concussion. (Dkt.
170 at 1.)
Plaintiffs respond that Payne’s medical records are admissible as
certified business records.
(Dkt. 172 at 2.)
They also contend that
Defendant Johns had a chance to depose Plaintiffs or any of the treating
hospital personnel but chose not to do so. (Id.) Finally, Plaintiffs argue
that although there is no legal basis to exclude the records, the weight
and credibility of those records would ultimately be an issue for the jury
to decide.
(Id. at 3.)
The Court agrees with Plaintiffs and denies
Defendant Johns’s motion for each reason explained in Plaintiffs’
response.
The medical records are relevant, as they prove the extent and
severity of his injuries. Defendant Johns’s own expert relied on them,
along with APD in his investigation and the Fulton County prosecutors
in the criminal proceedings. Finally, the treating physicians offered
observations based on their personal knowledge and do not provide
causation opinions or hypotheses about what caused Payne’s injuries.
The Court thus denies Defendant Johns’s motion to exclude. (Dkt. 170.)
26
B.
Motions for Summary Judgment
The parties have all cross-moved for summary judgment. (Dkts.
133; 141; 148; 162.) The City moves for summary judgment on all claims
against it. (Dkt. 141.) In response, Plaintiffs request partial summary
judgment against the City.
(Dkt. 148.)
They have also moved for
summary judgment against Defendant Johns, to which he has responded
with his own motion. (Dkts. 133; 162.)
1.
Motions for Summary Judgment on Plaintiffs’
Claims Against Defendant Johns (Dkts. 162; 133)
In his motion, Defendant Johns argues he is entitled to summary
judgment because “the video of the encounter shows that Officer Johns
did not hit Thief Payne5 as alleged” and because “Payne did not suffer
more than de minimis injury, and that such an injury is not a basis for
recovery under 42 U.S.C. § 1983.” (Dkt. 162 at 1.) The Court finds
Defendant Johns’s motion problematic for several reasons. First, and
fundamentally, he fails to show the lack of a genuine dispute of material
fact that would entitle him to judgment as a matter of law. If anything,
The Court does not condone Defendant Johns’s use of the title “Thief”
in reference to Mr. Payne. The Court is well aware that Payne was riding
in a stolen car before the events at issue in this case. Payne nevertheless
deserves to be treated with respect in these proceedings.
5
27
Defendant Johns’s arguments highlight a serious dispute about the
events that took place and the extent of the injuries Payne sustained. He
also fails to include a statement of material facts that he contends are
undisputed and entitle him to summary judgment. The Court thus has
only Plaintiffs’ statement of facts to consider.
Further, Defendant Johns argues that “he did not do the acts
attributed to him” and “there was no injury to plaintiff caused by him.”
(Dkt. 162 at 13.) As Plaintiffs correctly note, however, Defendant Johns
already admitted assaulting Payne when he pleaded guilty to the
criminal indictment. In his civil deposition, Defendant Johns argues that
although he pleaded guilty, he is not actually guilty of any of the acts
attributed to him. But Defendant has provided no basis on which the
Court could grant him summary judgment on Plaintiffs’ claim for
constitutional violations. Perhaps he can argue that he did not hit (kick
or punch) Mr. Payne before the jury, try to explain away his previous
admissions in the criminal case, and argue his view of the videotape. But
he certainly cannot show the lack of a dispute of material fact as to these
issues.
28
Beyond the inclusion of the defense in his answer, Defendant Johns
made no argument in support of a claim for qualified immunity. (See
Dkt. 87 at 1.) Plaintiff, on the other hand, has discussed why Defendant
Johns should not be entitled to this protection. (See Dkt. 167 at 19–22.)
In an abundance of caution, the Court has considered the issue and
determined Defendant Johns is not entitled to summary judgment on the
basis of qualified immunity. See Simmons v. Bradshaw, 879 F.3d 1157,
1163 (11th Cir. 2018) (“Entitlement to qualified immunity is for the court
to decide as a matter of law.”).
“The Fourth Amendment’s freedom from unreasonable searches
and seizures encompasses the plain right to be free from the use of
excessive force in the course of an arrest.” Lee, 284 F.3d at 1197. At the
same time, “the right [of police] to make an arrest necessarily carries with
it the right to use some degree of physical coercion or threat thereof to
effect it.” Lee, 284 F.3d at 1200 (quoting Graham v. O’Connor, 490 U.S.
386, 396 (1989)). So the question is how much force is too much, and the
Fourth Amendment’s “objective reasonableness” standard governs this
analysis.
See Hadley, 526 F.3d at 1329.
The Eleventh Circuit has
identified several factors that a court may use in determining whether
29
an officer’s use of force was objectively reasonable, including “(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.” See Hadley, 526 F.3d at 1329 (quoting Slicker v. Jackson,
215 F.3d 1225, 1233 (11th Cir. 2000)).
In considering the totality of the circumstances, the force used must
be reasonably proportionate and objectively reasonable. Lee, 284 F.3d at
1198. At the same time, “the Supreme Court has reminded us that the
officer's conduct ‘must be judged from the perspective of a reasonable
officer on the scene, rather than with the 20/20 vision of hindsight.’ ”
Terrell v. Smith , 668 F.3d 1244, 1251 (11th Cir. 2012) (quoting Graham,
490 U.S. at 396). Police are given this protection because they “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.
Viewing the facts in the light most favorable to Payne as it must in
considering qualified immunity, the Court finds that a reasonable jury
could find that Payne was not resisting arrest when Defendant Johns
30
applied significant and excessive force. Under Plaintiff’s version of the
facts, he was lying face down on the ground, having immediately exited
the stolen vehicle and given himself up to the police.
As soon as
Defendant Johns reached Payne, he kicked him in the head. He did not
bend down or try to restrain the boy — he simply kicked him in the head.
Defendant Johns took a brief moment to regain his balance and then
stomped viciously on the back of Payne’s head. The facts certainly would
allow a jury to conclude the boy was not struggling, resisting, or trying to
get away. It could find that, regardless of the high-speed chase, Payne
had given himself up when the officer used significant force against him.6
As Payne was neither resisting arrest nor posed a danger, Defendant
Johns was likely not entitled to use any force at that time. Hadley, 526
F.3d at 1329 (finding officer “was not entitled to use any force” against
suspect who neither resisted arrest nor threatened officer). But even if
he could have used some force, a jury could find excessive Defendant
Defendant Johns delivered more blows as he tried to handcuff Payne’s
hands behind his back. He argues about whether the boy resisted those
efforts. It appears not. But that is irrelevant as Defendant Johns had
already delivered two vicious blows when Payne was totally compliant
and defenseless. Perhaps the additional beating is relevant to damages
and other issues.
6
31
Johns’s actions in kicking Plaintiff in the head and then stomping on him
while he laid on the ground. The evidence viewed in the light most
favorable to Payne also shows that he received significant injuries. (Dkt.
162 at 1.) An ambulance took Payne from the scene of the crash to Grady
Hospital and medical personnel there treated him for lacerations on his
face and a concussion.
Defendant Johns says the video is ambiguous because the impact
of his kick to Payne is “obscured” by another officer. (Dkt. 162 at 4.) But
that is not entirely correct.
The video clearly shows Payne laying
compliant on the ground as Defendant Johns runs up and kicks in the
direction of his head. Payne’s head immediately snaps back. While the
actual moment of impact may not be visible, the video is susceptible to
Plaintiffs’ interpretation — the man kicked the boy in the head.
Defendant Johns also describes his subsequent stomping on Payne’s head
as him “push[ing] the boy’s head down with his foot.” But, again, the
evidence is open to Plaintiffs’ interpretation: Johns violently stomped on
his head. And, of course, Defendant Johns later admitted kicking Payne
and stomping on him when he entered a guilty plea to those criminal
charges.
32
The record also contains some evidence to suggest Defendant Johns
did not apply the force in good faith. He was previously instructed to
refrain from participating in the car chase. He disobeyed that direct
order. There is at least a dispute of fact here about whether Defendant
Johns applied the force maliciously or sadistically.
For all of these reasons, the Court holds that the facts (considered
in the light most favorable to Payne) establish that Defendant Johns
violated Payne’s constitutional rights by using force that was plainly
excessive, disproportionate to the circumstance, and objectively
unreasonable.
The Court likewise finds that, at the time of the incident, Defendant
Johns’s conduct violated clearly established law. A party may show a
particular amount of force violated clearly established law by pointing to
a “materially similar case that has already decided that what the police
officer was doing was unlawful.”
Lee, 284 F.3d at 1198.
Because
identifying factually similar cases may be difficult, a “narrow exception”
also allows a party to show “that 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,
33
notwithstanding the lack of case law.” Id. Under this test, the law is
clearly established, and qualified immunity can be overcome, only if the
standards set forth in Graham and Eleventh Circuit case law “inevitably
lead every reasonable officer in [the defendant’s] position to conclude the
force was unlawful.” Id. (quoting Post v. City of Fort Lauderdale, 7 F.3d
1552, 1559 (11th Cir.1993)).
Plaintiffs have pointed to the Eleventh Circuit’s “body of cases
holding ‘that gratuitous use of force when a criminal suspect is not
resisting arrest constitutes excess force.’ ” Sebastian v. Ortiz, 918 F.3d
1301, 1308 (11th Cir. 2019) (citing Hadley, 526 F.2d at 1330). So for
instance, in Smith v. Mattox, 127 F.3d 1416 (11th Cir. 1997), a suspect
raised a baseball bat in a threatening position toward the officer and then
fled.7 The suspect then “docilely submitted to arrest” when an officer
ordered him to “get down.” Id. at 1417. The officer, however, “with a
grunt and a blow,” broke the suspect’s arm while placing him in
handcuffs. Id. The Eleventh Circuit held that officer was not entitled to
qualified immunity because the “broken arm was obviously unnecessary
The case here is even clearer than in Smith, as Payne did not threaten
officers with a dangerous object like a baseball bat or attempt to flee the
scene. He also did not resist arrest or struggle against Defendant Johns.
7
34
to restrain [the suspect] when he was offering no resistance at all.” Id.
at 1420.
The Eleventh Circuit has more recently clarified that “Smith
established that if an arrestee demonstrates compliance, but the officer
nonetheless inflicts gratuitous and substantial injury using ordinary
arrest tactics, then the officer may have used excessive force.” Sebastian,
918 F.3 at 1311. The Court finds that principle applicable here. See also
Hadley, 526 F.3d at 1330 (holding punch to suspect’s stomach excessive
when he was not resisting arrest); Lee, 284 F.3d at 1200 (finding force
excessive when arresting officer pulled non-resisting subject out of her
car and slammed her head against the trunk of the car); Slicker, 215 F.3d
at 1233 (holding force excessive where officers kicked handcuffed and
non-resisting suspect in the ribs and beat his head on the ground).
Although qualified immunity is typically a broad shield for law
enforcement officers, the Court holds that this case remains an outlier
where Defendant Johns’s conduct brought him “so far beyond the hazy
border between excessive and acceptable force that [he] had to know he
was violating the Constitution even without caselaw on point.” Priester
v. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000) (internal
35
citations omitted). Kicking and stomping on Payne as he lay on the
ground compliant and having given himself up was by any measure
unnecessary and gratuitous. For purposes of the qualified immunity
analysis, no reasonable police officer could have believed that doing so
was lawful under the circumstances, particularly not with Smith’s
principle that gratuitous force used on a subdued suspect crosses the line
into excessive. The Court holds Defendant Johns not entitled to qualified
immunity.
In a less-than-conventional move, Plaintiffs not only oppose
Defendant
Johns’s
motion
for
summary
judgment
but
also
simultaneously seek summary judgment for themselves on their claim
that
he
“violated
Plaintiff
Payne’s
clearly
established
Fourth
Amendment rights to be free from an unreasonable seizure.” (Dkt. 1332 at 23.) A reasonable jury could certainly conclude Defendant Johns’s
actions represented the unconstitutional use of excessive force. That
said, the affirmative defense of qualified immunity “is conceptually
distinct from the merits of the plaintiff’s claim that his rights have been
violated.” Simmons, 879 F.3d at 1162–63.
36
As explained above, in assessing qualified immunity, the Court
construes the facts in the light most favorable to Plaintiffs and considers
whether a reasonable jury could conclude Defendant Johns violated his
constitutional rights. Having denied qualified immunity, the Court must
now allow that same “reasonable jury” to consider whether the force
Defendant Johns applied was, in fact, excessive. If the evidence at the
summary judgment stage, viewed in the light most favorable to Plaintiffs
as the nonmovants, shows there are facts that are inconsistent with
qualified immunity being granted, the case and the qualified immunity
issue along with it will proceed to trial. Id. at 1163. That is because “[i]f
the official’s motion [for qualified immunity] does not succeed . . . then
his qualified immunity defense remains intact and proceeds to trial. The
facts as viewed for summary judgment purposes are no longer binding
and the jury proceeds to find the relevant facts bearing on qualified
immunity.” Id.
Defendant Johns says he did not initially kick Payne and his
actions after (including what the Court has referred to as “stomping” on
him) were in reacting to Payne’s actions in resisting arrest. While the
Court has found Defendant Johns not entitled to qualified immunity, he
37
is still entitled to present the disputed factual issues to a jury. The Court
denies Plaintiffs’ motion for summary judgment as to Defendant Johns.
(Dkt. 133.)8
2.
Summary Judgment Motions as to Defendant City
of Atlanta (Dkts. 141; 148)
The parties have also cross-moved for summary judgment on
Plaintiffs’ claims against the City. (Dkts. 141; 148.) There is a good deal
of overlap in the briefing of the two motions, so the Court addresses them
jointly.
The City argues Plaintiffs cannot establish municipal liability
under § 1983 because it was not the “moving force” behind Payne’s
injuries. (Dkt. 141 at 12–13.) It also argues it had a constitutionally
compliant policy in place to require only justified and reasonable use of
force by APD officers. In response, Plaintiffs argue that its claims against
the City “are based on allegations that for many years, officers of the City
of Atlanta Police Department, . . . including Defendant Matthew
Johns . . . , have acted pursuant to APD customs and practices in a
The Court finds that discussions through mediation may help the
parties here. Before setting a trial, the Court will order the parties to
attempt to settle through mediation any remaining issues. The specifics
of the mediation order appear below.
8
38
manner that violates the constitutional rights of citizens.” (Dkt. 151 at
2.)
They also claim the City failed to adequately train, supervise,
discipline, and screen officers for hiring. They contend that as a result,
this municipal inaction and deliberate indifference on the part of the City
are the “driving force” behind the violation of Payne’s constitutional
rights. (Id.)
A municipality may be found liable under 42 U.S.C. § 1983 only
where the municipality itself causes the constitutional violation at issue.
Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658 (1978). Simple
respondeat superior or vicarious liability will not attach under § 1983.
See City of Canton v. Harris, 489 U.S. 378, 385 (1989). “It is only when
the execution of the government’s policy or custom . . . inflicts the injury
that the municipality may be held liable under § 1983.” Id. (internal
citations omitted). Said differently, the municipal policy or custom must
be “the moving force behind the constitutional violation.” Gold v. City of
Miami, 151 F.3d 1346, 1350 (11th Cir. 1998).
And under a failure to train theory, “the inadequacy of police
training may serve as the basis for § 1983 liability only where the failure
to train amounts to deliberate indifference to the rights of persons with
39
whom the police come into contact.” City of Canton, 489 U.S. at 388. To
meet this demanding threshold, a “plaintiff must show that the
municipal action was taken with the requisite degree of culpability, i.e.,
that the municipal action was taken with deliberate indifference to its
known or obvious consequences.” Davis v. DeKalb Cty. Sch. Dist., 233
F.3d 1367, 1375 (11th Cir. 2000).
Plaintiffs’ theory of municipal liability is just that — a theory. The
record contains no evidence or “specific facts” to support their sweeping
claim. The record perhaps contains evidence to support a finding of some
level negligence on the part of the City. But “[a] showing of simple or
even heightened negligence will not suffice” to impose municipal liability
under § 1983. Bd. of Cty. Com’rs v. Brown, 520 U.S. 397, 407 (1997).
Plaintiffs can point to nothing to show a policy, practice, or custom
that directly caused Payne’s injuries. Nor can they point to any evidence
suggesting deliberate indifference on the part of the City to trigger
municipal liability. Should Defendant Johns have been flagged through
the Early Warning System based on his use of force incidents? Yes, it is
undisputed that his disciplinary history met the criteria. But he was
never flagged and APD was never alerted to his status. Any claim of
40
deliberate indifference requires a showing that the City deliberately or
consciously ignored a known or obvious consequence.
See id. (“[The
municipality’s] continued adherence to an approach that they know or
should know has failed to prevent tortious conduct by employees may
establish the conscious disregard for the consequences of their
action — the ‘deliberate indifference’ — necessary to trigger municipal
liability.”). But the record contains nothing to suggest it did.
Should APD have more meticulously vetted Defendant Johns’s
military history and psychological background before hiring him?
Probably. And with the benefit of hindsight, the answer is, of course, yes.
As the Supreme Court has recognized, however, “[i]n virtually every
instance where a person has had his or her constitutional rights violated
by a city employee, a § 1983 plaintiff will be able to point to something
the city ‘could have done’ to prevent the unfortunate incident.” City of
Canton, 489 U.S. at 392 (quoting City of Oklahoma City v. Tuttle, 471
U.S. 808, 823 (1985)). But that is simply insufficient to impose liability
on a municipality.
Plaintiffs’ brief in opposition to the City’s motion for summary
judgment spends a lot of space discussing the structural organization of
41
APD and the Police Chief’s role in the hiring and firing of officers. (Dkt.
151 at 5–7.)
All of that is immaterial when the record contains no
evidence of an unconstitutional policy, custom, or practice, either formal
or informal. The record also is devoid of any evidence showing the City
failed to train Defendant Johns on the use of force or that the City
deliberately chose not to provide the training. Even if that were the case
though, Plaintiffs cannot establish the causal connection between
Payne’s injuries and a lack of training. The Supreme Court has cautioned
that it will not “suffice to prove that an injury or accident could have been
avoided if an officer had had better or more training, sufficient to equip
him to avoid the particular injury-causing conduct. Such a claim could
be made about almost any encounter resulting in injury. . . .” City of
Canton, 489 U.S. at 391.
Plaintiffs allege in their complaint that the City of Atlanta had a
“persistent and widespread practice” of authorizing APD officers “to cover
up the use of excessive force.” (Dkt. 151 at 3 (citing Dkt. 1 ¶ 32).) Yet
the evidence simply does not bear out that conclusory accusation of a
coverup. Defendant Johns’s expert Dr. Gaut testified there were about
forty use of force incidents where the officers used compliance strikes on
42
the subject to arrest them. But the Court agrees with the City that all of
these situations diverge on one critical point: “the subjects were resisting,
and the officers used force to gain control, unlike the present situation
where Mr. Payne was not resisting Officer Johns.” (Dkt. 153 at 13 n.50.)
Defendant Johns’s actions are more like a “random act[ ] or isolated
incident[ ]” than a pattern or practice. McDowell v. Brown, 392 F.3d
1283, 1290 (11th Cir. 2004). And the Eleventh Circuit has made clear
that isolated incidents are insufficient to impose liability on a
municipality. Id. The Court agrees with the City that it “cannot be found
deliberately indifferent to Plaintiff Payne’s rights because Officer Johns
made the conscious choice to [disregard a direct order and] engage in the
actions that caused Payne’s injuries.” (Dkt. 153 at 16.)
Plaintiffs also point to instances in which APD allegedly condoned
or approved of their officers’ use of force against suspects. These include
“striking suspects with closed fists; kicking a suspect in the midsection;
striking a suspect in the head with a closed fist three times; and kicking
a suspect using a leg sweep method.” (Dkt. 151 at 15.) What Plaintiffs
overlook, however, is that in each of those instances, the APD officers
deployed those tactics on resisting suspects. Beyond this instance with
43
Defendant Johns, Plaintiffs failed to identify a single Use of Force report
where “compliance strikes” were used against a suspect who was not
resisting arrest. (Dkt. 153-1 ¶ 77.) No one disputes — and the Supreme
Court has definitively stated — “the right [of police] to make an arrest
necessarily carries with it the right to use some degree of physical
coercion or threat thereof to effect it.” Lee, 284 F.3d at 1200 (quoting
Graham, 490 U.S. at 396). There is thus no pattern of unconstitutional
action condoned by the City.
Plaintiffs have also failed to put forth evidence of a situation in
which an APD officer used excessive force against an individual, APD
determined the use of force violated policy, and APD failed to take
disciplinary action against the officer.
Plaintiffs’ claims that APD
condones and ratifies officers’ use of excessive force thus must fail.
The Court grants Defendant City of Atlanta’s motion for summary
judgment and denies Plaintiffs’ motion for partial summary judgment
against the City.9
Because the Court grants judgment for the City,
The City seeks dismissal of Count I of Plaintiffs’ complaint, which
alleges violations of Payne’s Fifth and Fourteenth Amendment rights.
(Dkt. 141 at 12 n.67.) Plaintiffs acknowledge that the inclusion of the
Fifth Amendment was a typographical error. (Dkt. 151 at 3–4.) The
9
44
Plaintiffs’ claim for fees under 42 U.S.C. § 1988 as to the City also fails.
The Court terminates Defendant City of Atlanta as a party defendant.
IV.
Conclusion
For these reasons, the Court DENIES Defendant Matthew Johns’s
Motion to Strike the Opinions of Sergeant Scott DeFoe (Dkt. 166) and
DENIES his Motion to Strike Opinions in Plaintiff Payne’s Medical
Records (Dkt. 170).
The Court DENIES Defendant Matthew Johns’s Motion for
Summary Judgment (Dkt. 162) and DENIES Plaintiffs’ Motion for
Partial Summary Judgment Against Matthew Jones (Dkt. 133).
The Court GRANTS Defendant City of Atlanta’s Motion for
Summary Judgment (Dkt. 141) and DENIES Plaintiffs’ Motion for
Summary Judgment as to Defendant City of Atlanta (Dkt. 148). The
Court DIRECTS the Clerk to terminate Defendant City of Atlanta as a
party defendant.
The Court ORDERS the rest of this case to mediation. The parties
may retain the mediator to mediate this case. The expense of a retained
Court thus dismisses any allegations asserted under the Fifth
Amendment.
45
mediator must be paid by the parties. The parties, alternately, may
request that the Court appoint a magistrate judge to conduct the
mediation.
The parties are not required to pay for mediation by a
magistrate judge.
The parties shall advise the Court, on or before October 13, 2020, of
their mediation preference. If they elect to retain their own mediator,
the parties shall identify the mediator on or before October 27, 2020. The
parties must have present at the mediation a person with authority to
settle this litigation.
The parties shall, within five days after the mediation, notify the
Court in writing whether mediation resulted in a settlement of this
action.
The Court STAYS this case pending mediation.
The Court
DIRECTS the Clerk to ADMINISTRATIVELY CLOSE this case
during the period of the stay.
SO ORDERED this 21st day of September, 2020.
46
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?