Mells v. City of Darien et al
Filing
82
ORDER granting Defendant's 67 Motion for Summary Judgment in its entirety. Based on the foregoing, Defendants' Motion for Summary Judgment is GRANTED, and Defendants are entitled to judgment in their favor on all claims. The Clerk of C ourt is DIRECTED to update the docket sheet to reflect termination of Defendants Hugh Hodge, David Kilgore and John Does 1-9. The Clerk of Court is DIRECTED to enter the appropriate judgment and to close this case. Signed by Chief Judge Lisa G. Wood on 2/12/2016. (csr)
*
MYRON MELLS,
Plaintiff,
V.
CITY OF DARIEN, a municipal
corporation of the State of
Georgia; McINTOSH COUNTY, a
political subdivision of the
State of Georgia; and DAVID
KILGORE, in his individual
capacity as a Deputy of the
McIntosh Sheriff's
Department,
Defendants.
*
*
*
*
*
*
CV 213-099
*
*
*
*
*
*
*
*
*
*
*
[s)1m)1
Presently before the Court is a fully-briefed Motion for
Summary Judgment filed by Defendants City of Darien, McIntosh
County, and Deputy David Kilgore ("Deputy Kilgore") . See Dkt.
Nos. 67, 76, 80.' For the reasons that follow, Defendants'
Motion (dkt. no. 67) is GRANTED in its entirety.
' The docket sheet of this case also lists the following as partyDefendants: Hugh Hodge, in his official capacity as Mayor of the City
of Darien, Georgia; Deputy Kilgore in his official capacity; and John
Does 1-9, individually and in their official capacity as police
officers of the City of Darien and deputies of the McIntosh Sheriff's
Department. These Defendants were dismissed pursuant to a stipulation
of the parties filed on July 22, 2014, see dkt. no. 47, p. 2, and,
AU 72A
(Rev. 8/82)
BACKGROUND
In the summer of 2011, a confidential informant notified
the City of Darien Police Department that Plaintiff Myron Mells
("Plaintiff") was distributing cocaine from a mobile home in
McIntosh County. SUF, ¶ i.
Plaintiff had been charged with
drug-related offenses on at least three prior occasions and
convicted at least once of possession with intent to distribute
illegal substances. Id. at ¶ 2. The confidential informant,
who had previously provided the police with reliable information
about illegal drugs, purchased cocaine from Plaintiff using
funds supplied by the police for that purpose. Id. at ¶ 4. The
police then obtained a warrant to search the trailer, which sat
on a multi-lot compound owned by Plaintiff's father and
maintained by Plaintiff and his two employees. Id. at 191 5, 13,
15.
therefore, the Clerk of Court is DIRECTED to update the docket sheet
to reflect their termination from this action.
2
Defendants have filed a Statement of Undisputed Material Facts (dkt.
no. 67-2), and Plaintiff has filed a Response (dkt. no. 77) largely
agreeing with Defendants' recitation of the facts of this case.
Accordingly, the Court, for ease of exposition, cites only to
Defendants' version of the facts (dkt. no. 67-2) as the Statement of
Undisputed Facts ("SUP") and specifically notes herein any facts with
which Plaintiff disagrees. Additionally, Plaintiff has filed a
separate Statement of Material Facts That Create Genuine Issues (dkt.
no. 76-2), and, to the extent that Defendants' Reply (dkt. no. 80)
raises no objection thereto, the Court treats these facts as
undisputed and relies upon the same to supplement the SUF as set forth
herein.
Plaintiff contests only the materiality, not the truth, of the facts
set forth in paragraphs one through four of the SUF. See Dkt. No. 77,
191 1-4. Accordingly, these facts are included as undisputed here.
AO 72A
(Rev. 8/82)
1
2
On August 10, 2011, the City of Darien Police Department
and the McIntosh County Sheriff's Department assembled a joint
task force to carry out a no-knock search of Plaintiff's trailer
pursuant to the warrant. Id. at 191 6-7. A joint task force is
an arrangement that is common among rural areas of Georgia
having relatively few police officers and sheriff's deputies.
Id. at ¶ 6; see also Dkt. No. 76-2, ¶ 1. Nevertheless, the
police department and sheriff's department in this case had only
recently formed the joint task force, SUF, ¶ 6, and, despite the
recommendations of their officers, had no standard operating
procedures or training programs on the execution of a no-knock
search warrant, dkt. no. 76-2, 191 2-4.
Prior to searching Plaintiff's trailer, Major Danny Lowe
("Major Lowe") met with the officers of the joint task force and
briefed them on their assignment. SUF, 191 7-8. Major Lowe
indicated that Plaintiff was a convicted felon who would not be
"willing to go down" on more narcotics charges, and that the
confidential informant believed that there were weapons in the
trailer. Id. According to Deputy Kilgore, this information
suggested that Plaintiff could be armed and dangerous. Id. at ¶
9 (citing Dkt. No. 68-4 ("Kilgore Dep."), 74:14-18). The
officers were separated into a three-person perimeter team
responsible for securing the exterior of the trailer and a fiveperson entry team tasked with searching and securing the
AO 72A
(Rev. 8/82)
3
3
I
interior. Id. at ¶ 10. The entry team, followed by the
perimeter team and supervisory officers, then drove to
Plaintiff's residence. Id. at IT 13-14.
When the officers arrived at the compound, Plaintiff was
working in the yard on a tractor, while his employee was cutting
the grass on a riding lawn mower. Id. at IT 15-16. The entry
team ran through the yard—directly past Plaintiff—to the front
door of the mobile home. Id. at IT 17-18. Deputy Alan
Wainwright ("Deputy Wainwright"), who led the entry team across
the yard, attests that he made eye contact with Plaintiff as he
ran past him and ordered him to get off of the tractor and lie
on the ground. Id. at ¶ 19 (citing Dkt. No. 68-8 ("Wainwright
Dep."), 46:7-22). Deputy Kilgore confirms that he heard one of
the other officers shout at Plaintiff to get on the ground. Id.
at ¶ 18 (citing Kilgore Dep., 61:15-18). Plaintiff, however,
maintains that no one informed him to take any such action.
Dkt. No. 77, IT 18-19 (citing Dkt. No. 76-3 ("Pl.'s Decl.")).
Instead, Plaintiff emphasizes that not a single law enforcement
officer approached him, neither to explain that his residence
was being searched nor to instruct him not to enter the trailer
during that time. Dkt. No. 76-2, ¶ 6 (citing Dkt. No. 68-6
("Pl.'s Dep."), P. 45).
As the entry team reached the door of the trailer, the
perimeter team was coming onto the property. SUF, ¶ 20. As
AO 72A
(Rev. 8/82)
Plaintiff watched from his tractor, he saw Officer Anthony Brown
("Officer Brown") use a battering ram to breach the door and
then rush inside to secure the trailer with the four other entry
team members. Id. at ¶I 21-23. Deputy Kilgore believed that
the perimeter officers were supposed to ensure that Plaintiff
and other persons on the property were secured and unable to
disturb the entry team executing the search. Id. at ¶ 20
(citing Kilgore Dep., 34:20-35:14). According to Deputy
Kilgore, however, the perimeter team ''didn't do [its] job," dkt.
no. 76-2, ¶ 6 (quoting Kilgore Dep., 135:15), based on the
events that then transpired.
Plaintiff's version of those events proceeds as follows:
Plaintiff asserts that while Officer Brown was attempting to
breach the door, Plaintiff, hoping to stop him, shouted,
"[W]hoa, whoa, whoa, whoa." SUE, ¶ 24 (citing Pl.'s Dep., 46:29); see also Dkt. No. 76-2, ¶ 7. The officers did not
acknowledge Plaintiff's objections and instead proceeded to
breach the door, at which time Plaintiff jumped off of his
tractor and began scrambling toward the trailer. SUE, ¶ 25.
Plaintiff stumbled while running through the yard but then
collected himself, reaching the stairs leading up to the front
door of the trailer and climbing them without incident. Id. at
¶I 26-27.
AO 72A
(Rev. 8/82)
1
5
Plaintiff contends, however, that as soon as he reached the
front door, he tripped again—this time falling with his chest to
the floor, just inside the doorway. Id. at ¶ 27 (citing Pl.'s
Dep., 50:3-11, and Dkt. No. 68-7, 23:16-19); see also Dkt. No.
76-2, ¶ 8 (citing Pl.'s Dep., pp. 48-52, and Pl.'s Decl.)
Plaintiff's employee who had been working in the yard, Marcus
Jones ("Jones"), states that he heard the battering ram hit the
door, went to investigate, and, upon rounding the corner of the
trailer, saw Plaintiff lying in the doorway. SUF, 191 28-29
(citing Dkt. No. 68-3 ("Jones Dep."), 25:10-14)
As Plaintiff's account continues, he then "braced himself
with his hands to begin getting up from the floor and
immediately heard an officer shout, 'Freeze! Freeze!'" Id. at
¶ 30 (citing Pl.'s Dep., 51:22-52:1). Jones, who could hear
what was being said inside the trailer from his position in the
yard, heard the officers identify themselves by shouting,
"Police!" and "Sheriff's Office!" and order Plaintiff to "get
down." Id. at IT 29, 31 (citing Jones Dep., 25:10-14, 30:1-2).
An unknown officer then yelled, "He's got a gun! He's got a
gun!" in a voice so loud that anyone inside of the trailer could
have heard it and that Jones, in fact, was able to hear it from
the yard.
Id. at IT 32-33 (citing Pl.'s Dep., 52:10, 56:3-12,
and Jones Dep., 28:4-9); see also Dkt. No. 76-2, ¶ 9.
AO 72A
(Rev. 8/82)
1
6
Plaintiff then explains, "[W]hen I heard him say that, my
mind automatic[ally] click[ed], you know, put your hands up. So
I was trying to get up off of the floor." SUF, ¶ 34 (quoting
Pl.'s Dep., 52:10-12). Despite being ordered to "freeze" and
"get down y " Plaintiff continued trying to get up from the floor
and moving to show his hands. Id. at ¶ 35 (citing Pl.'s Dep.,
52:10-12, 53:3-6) . Plaintiff then heard a firearm discharge and
realized that one of the officers standing behind him had shot
him with a single bullet near his right shoulder blade and
collarbone. Id. at ¶I 36-38.
In his deposition testimony, Plaintiff describes the scene
inside of the trailer at the time of the shooting as follows:
Q:
Was your chest touching the floor?
A:
Yes, sir. I was down.
Were you in the process of getting up when
you got shot?
A:
Q:
1
Do you know if you were on all fours or did you
have one knee on the ground and one foot on the
ground with your hands up off the ground? Do you
know exactly what position you were [in]?
A:
AO 72A
(Rev. 8/82)
Yes, I was trying to brace myself to get up, but
I hadn't made it all the way up yet.
I was -- it's kind of hard to say -- explain. I
mean, I was trying to get up. I hadn't got [sic]
up. I was trying to get up. I mean, I could
show you if you want me to. He was like[,]
"Freeze, freeze, he[s] got a gun," and when I
7
heard him say that, my mind automatic[ally]
click[ed], you know, put your hands up.
So I was trying to get up off the floor.
haven't [sic] even made [it] up off the floor
yet.
I wasn't halfway up. I was trying to get up.
Pl.'s Dep., 50:10-53:4. Plaintiff states that "everything
happened so fast," to which Jones adds that the officers started
yelling commands "as soon as [Plaintiff] came in the house" and
fired a shot "four or five seconds" later. SUF, ¶ 39 (quoting
Pl.'s Dep., 69:2, and Jones Dep., 28:13-17).
Notwithstanding Plaintiff's and his witnesses' insistence
upon the foregoing version of events, the officers on the joint
task force tell a very different story. See Dkt. No. 76-2, ¶
12. Put succinctly, the officers maintain that "Plaintiff was
shot as he stood in the kitchen of the trailer—eyes fixed on the
back of an officer who was mere feet away—and ignored multiple
commands to stop reaching into a drawer full of knives." Dkt.
No. 67-1, p. 4; see also Kilgore Dep., 11:20-13:21; Dkt. No. 765 ("Brown Dep."), 32:20-33:6. Although Deputy Kilgore initially
stated that he shot Plaintiff believing that he was going to
reach into a kitchen drawer, grab a knife, and stab Officer Brad
Marat ("Officer Marat") in the back, he now identifies Officer
Brown as Plaintiff's perceived target. Kilgore Dep., 13:12-
AU 72A
(Rev. 8/82)
l4:17.
The officers do not recall anyone ever shouting that
Plaintiff had a gun—and even confirm that he was not carrying a
gun—though they assert that Plaintiff was, in fact, next to an
open drawer full of knives when he was shot. Dkt. No. 67-1, p.
4; see, e.g., Kilgore Dep., 30:15-31:12; Brown Dep., 32:20-33:6,
44:24-45:4.
Plaintiff recounts that immediately after he was shot, he
turned around and saw Deputy Kilgore, who had fired the shot,
and asked, "Man, why [did] you shot [sic] me?" SUP, ¶ 40.
Deputy Kilgore responded, "Man, you had a gun." Id. at ¶ 41.
Plaintiff then fell with his chest to the floor, and Deputy
Kilgore rolled him over onto his back, patted down his pockets,
id. at ¶ 42, and found that he did not have a weapon on him,
dkt. no. 76-2, ¶ 11.
Deputy Kilgore then ordered another officer to get
something to use to apply pressure to Plaintiff's gunshot wound.
SUP, ¶ 42. The officers rendered first aid to Plaintiff and
called an ambulance, which took Plaintiff to a hospital to
receive treatment and eventual discharge. Id. at 191 43-44;
Other law enforcement officers later completed the search
The record reflects that Officer Marat is a short white male, while
Officer Brown is a tall black male. See Kilgore Dep., 14:18-15:9.
Additionally, Officer Marat's and Officer Brown's descriptions of
their respective locations at the time of the shooting suggest that
they may not have been in the same area of the trailer as Plaintiff,
see dkt. no. 76-4 ("Marat Dep."), 31:9-15; Brown dep., 24:25-25:4,
though the evidence also reveals that the trailer is very small, Brown
dep., 47:15 ("It was close quarters.").
AO 72A
(Rev. 8/82)
1
9
warrant and discovered firearms, scales, and substances believed
to be cocaine and marijuana in Plaintiff's trailer. Id. at ¶
45.
Plaintiff now seeks to recover damages from the City of
Darien, McIntosh County, and Deputy Kilgore in his individual
capacity. See Dkt. Nos. 1, 3Q5 In Count I of the Complaint,
Plaintiff claims that the Defendants are liable under 42 U.S.C.
§ 1983 ("Section 1983") for Deputy Kilgore's use of excessive
force in violation of Plaintiff's Fourth Amendment and
Fourteenth Amendment rights. Dkt. No. 30, 191 18-26.
Plaintiff's Counts II and IV are directed toward only Deputy
Kilgore, alleging assault and battery under Georgia state law,
id. at IT 27-29 (Count II), and use of excessive force in
violation of Plaintiff's substantive due process rights under
the Fourteenth Amendment and Section 1983, id. at IT 37-41
(Count IV) . Count III of the Complaint sets forth Section 1983
claims against the City of Darien and McIntosh County based on
their allegedly negligent training, employment, and supervision
of Deputy Kilgore and the other officers that executed the
search warrant on Plaintiff's residence. Id. at 191 30-36.
Plaintiff initially named fourteen other officers and supervisors as
Defendants in this action, including McIntosh County Sheriff Steve
Jessup ("Sheriff Jessup"), and named Deputy Kilgore in his official
capacity, dkt. no. 1, pp. 3-5, but Plaintiff's claims against those
Defendants have since been dismissed by a ruling of the Court on July
17, 2014 (dkt. no. 46), and by the parties' stipulation dated July 22,
2014 (dkt. no. 47)
AO 72A
(Rev. 8/82)
1
10
Defendants move for summary judgment on all of Plaintiff's
claims, dkt. no. 67, and submit deposition transcripts of
Plaintiff, several officers, and Plaintiff's own witnesses in
support, dkt. nos. 68-1 to -8. Plaintiff has filed a Response
in opposition to Defendants' Motion, dkt. no. 76, attaching his
own Declaration made under penalty of perjury and transcripts of
the depositions of Officers Marat and Brown, dkt. nos. 76-3 to 5. Defendants have filed a Reply to the Response, dkt. no. 80,
and their Motion is now ripe for review.
LEGAL STANDARDS
Summary judgment is required where "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." FindWhat Inv'r
Grp. v. FindWhat.com , 658 F.3d 1282, 1307 (11th Cir. 2011)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)) . A dispute over such a fact is "genuine" if the
"evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Id. In making this determination,
the court is to view all of the evidence in the light most
favorable to the nonmoving party and draw all reasonable
inferences in that party's favor. Johnson v. Booker T.
AO 72A
(Rev. 8/82)
I
11
Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir.
2000)
The party seeking summary judgment bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . To
satisfy this burden, the movant must show the court that there
is an absence of evidence to support the nonmoving party's case.
Id. at 325. If the moving party discharges this burden, the
burden shifts to the nonmovant to go beyond the pleadings and
present affirmative evidence to show that a genuine issue of
fact does exist. Anderson, 477 U.S. at 257.
The nonmovant may satisfy this burden in two ways: First,
the nonmovant "may show that the record in fact contains
supporting evidence, sufficient to withstand a directed verdict
motion, which was 'overlooked or ignored' by the moving party,
who has thus failed to meet the initial burden of showing an
absence of evidence." Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1116 (11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at
332 (Brennan, J., dissenting)) . Second, the nonmovant "may come
forward with additional evidence sufficient to withstand a
directed verdict motion at trial based on the alleged
evidentiary deficiency." Id. at 1117. Where the nonmovant
attempts to carry this burden instead with nothing more "than a
repetition of his conclusional allegations, summary judgment for
AO 72A
(Rev. 8/82)
1
12
the defendants [is] not only proper but required." Morris v.
Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981) (citing Fed. R.
Civ. P. 56(e)).
DISCUSSION
I. Evidence Considered
Recognizing that Plaintiff's version of the events that
occurred in the trailer differs wildly from their own,
Defendants contend that the Court must consider only Plaintiff's
version in determining whether Defendants are entitled to
summary judgment. See Dkt. No. 67-1, pp. 2-5. Additionally,
Defendants argue in their Reply brief that Plaintiff's
Declaration, filed with his Response to their Motion, improperly
attempts to defeat summary judgment by changing the version of
the facts to which Plaintiff has adhered since the inception of
this case.
Dkt. No. 80, pp. 1-2, 4-5 (citing Pl.'s Dep., pp.
50-53, and Pl.'s Decl., ¶91 6-7). Defendants maintain that
Plaintiff's Declaration cannot be reconciled with his clear
prior testimony and, therefore, must be viewed as a sham and
disregarded in evaluating his version of the facts for summaryjudgment purposes. Id. at pp. 3-6.
A. The Parties' Conflicting Versions of the Facts
A court, on summary judgment, must view the facts in the
light most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor. Johnson, 234 F.3d
AO 72A
(Rev. 8/82)
I
I
13
at 507. Ps a result, where the facts evidenced by the moving
party conflict with those of the nonmoving party, the court is
"required to credit [the nonmovant's] version of the facts, even
if other evidence in the record is more favorable to him."
Valderrama v. Rousseau, 780 F.3d 1108, 1115 (11th cir. 2015)
(citing Evans v. Stephens, 407 F.3d 1272, 1278 (11th cir.
2005)). In doing so, however, the court's "duty to read the
record in the nonmovant's favor stops short of not crediting the
nonmovant's testimony in whole or part: the court[] owe[s] a
nonmovant no duty to disbelieve his sworn testimony which he
chooses to submit for use in the case to be decided." Id.
(quoting Evans, 407 F.3d at 1278). In other words, "[w]hen the
nonmovant has testified to events," the court does not "pick and
choose bits from other witnesses' essentially incompatible
accounts (in effect, declining to credit some of the nonmovant's
own testimony) and then string together those portions of the
record to form the story that [the court]
deem[s] most helpful
to the nonmovant." Id. (quoting Evans, 407 P.3d at 1278)
In the case at bar, the parties give essentially
incompatible versions of what happened during the time period
between Plaintiff arriving at the trailer and Deputy Kilgore
shooting him in the back. Plaintiff testifies that he tripped
and fell in the doorway of the trailer that the officers were
searching, officers ordered him to freeze and shouted that he
AU 72A
(Rev. 8/82)
iI
had a gun, and Kilgore shot him when he moved to get up from the
floor to put his hands up. SUF, ¶I 27, 30, 32, 34-37, 40. By
contrast, Deputy Kilgore and the other officers assert that
Plaintiff entered the trailer, ignored several commands to stop
reaching into a drawer full of knives, and was shot as he stood
with his eyes fixed on an officer who was a few feet away. Dkt.
No. 67-1, p. 4; see, e.g., Kilgore Dep., 11:20-13:21. Because
these accounts are fundamentally different, the Court is
obligated, at this stage, to accept Plaintiff's version as true.
See Valderrama, 780 F.3d at 1115 (explaining that the policeofficer defendant's account of the events underlying the Section
1983 claims could not be considered at summary judgment, even
though it could give rise to an issue of material fact, because
it conflicted with the plaintiff's own version of the facts)
While perhaps some of the officers' statements regarding
this time period would be favorable to Plaintiff, the Court
cannot, as Plaintiff urges, see dkt. no. 76-1, pp. 3-4, 8-10,
extract these portions of their testimonies to supplement his
own. For example, Plaintiff points out that while Deputy
Kilgore initially stated that he shot Plaintiff because it
appeared that he was going to grab a kitchen knife and stab
Officer Marat, Deputy Kilgore now testifies that it was Officer
Brown whom he believed Plaintiff would stab. Dkt. No. 76-1, pp.
8-10 (citing Kilgore Dep.,
AO 72A
(Rev. 8/82)
pp. 14-18). Even assuming, arguendo,
15
I
that Deputy Kilgore's self-contradiction would give rise to a
genuine credibility issue as Plaintiff contends, see id., Deputy
Kilgore's statements would not fit in to Plaintiff's overarching
narrative involving his fall and perceived possession of a gun
and thus cannot be considered.
As another example, Defendants note that multiple officers
maintain that no one ever shouted that Plaintiff was carrying a
gun—testimonies that could be more beneficial to Plaintiff than
his own. Dkt. No. 67-1, p. 4. Nevertheless, because Plaintiff
insists that an officer did, in fact, make this announcement,
see SUF, ¶ 32, the Court cannot accept the officers' sworn
statements over those of Plaintiff. Even if Deputy Kilgore's
and the other officers' statements could somehow be viewed as
consistent with Plaintiff's story, the Court could not take them
into account because, as Defendants explain, ''supplementing one
narrative with compatible bits and pieces of a holistically
incompatible second narrative strips those transplanted facts of
their context, and consequently renders them fundamentally
untruthful." Dkt. No. 67-1, pp. 4-5.
Thus, the Court accepts Plaintiff's account of the events
in the trailer in full, and declines to factor in any portion of
the other witnesses' essentially inconsistent versions, in
ruling on the instant Motion.
B. Plaintiff's Declaration
AO 72A
(Rev. 8/82)
1
16
A party may use an affidavit or declaration to clarify his
deposition testimony and thereby create a genuine dispute as to
a material fact. Van T. Junkins & Assocs., Inc. v. U.S. Indus.
Inc., 736 F.2d 656, 656 (11th cir. 1984). However, a party
"cannot . . . create such an issue with an affidavit that merely
contradicts, without explanation, previously given clear
testimony"—in other words, testimony that consists of "clear
answers to unambiguous questions which negate the existence of
any genuine issue of material fact." Id. at 657. In those
circumstances, a district court may find that the affidavit or
declaration is a sham and cannot be used to defeat summary
judgment. Id. at 656; see also Lane v. Celotex Corp., 782 F.2d
1526, 1533 (11th Cir. 1986) (affidavit or declaration that is
"inherently inconsistent" with prior deposition testimony is a
sham and must be disregarded)
Contrary to Defendants' assertions, see dkt. no. 80, pp. 36, Plaintiff's Declaration serves only to clarify—rather than
contradict—his prior deposition testimony. At his deposition,
Plaintiff stated that he was lying with his chest to the floor;
heard the officer say, "Freeze, freeze, he[s] got a gun";
thought that he needed to put his hands up; and "was trying to
brace [himself] to get up" and was in the process of getting up
"but . . . hadn't made it all the way up yet" when he got shot.
Pl.'s Dep., 50:10-53:4. When asked if he was "on all fours
AO 72A
(Rev. 8/82)
17
17
I
or . . . [had] one knee on the ground and one foot on the ground
with [his] hands up off the ground," Plaintiff responded that it
was "kind of hard to . . . explain"; he "was trying to get up
off the floor" but "hadn't got [sic] up" or "even made [it] up
off the floor yet" at the time of the shooting. Id. at 52:2-13.
Plaintiff now explains in his Declaration, "I slipped and fell
at the door. . . . As I was getting up, I heard he's got a
gun. . . . I put my hands up and while I had my hands up, I was
shot." See Pl.'s Deci., IT 5-7.
Plaintiff's Declaration clarifies his prior sworn testimony
in several respects. First, Plaintiff represented at his
deposition that the officer's statement, "Freeze, freeze, he[s]
got a gun" prompted him to believe that he needed to raise his
hands and thus to begin getting up from the floor to do so.
Pl.'s Dep., 50:10-53:4. Plaintiff's Declaration elucidates the
precise sequence and timing of these events in stating that he
was getting up from the floor by the time that he heard "he's
got a gun." See Pl.'s Decl., ¶ 6. In other words, Plaintiff
heard "Freeze, freeze" and immediately began to get up to raise
his hands, and then the officer continued his statement with
"he's got a gun" while Plaintiff was in the process of getting
up.
See Pl.'s Dep., 50:10-53:4; Pl.'s Deci., IT 5-7.
Second, Plaintiff testified that he was then shot while
"trying to brace [himself] to get up" and in the process of
AO 72A
(Rev. 8/82)
we
getting up "but . . . [not] all the way up yet" off of the
floor. Pl.'s Dep., 50:10-53:4. Plaintiff now adds that he "put
[his] hands up and while [he] had [his] hands up . . . was
shot." Pl.'s Deci., ¶ 7. Taken together, these statements
demonstrate that Plaintiff was still in the process of getting
up off of the floor—having raised himself up enough to put his
hands in the air, though not yet reaching an upright, standing
position—at the time of the shooting. See Pl.'s Dep., 50:1053:4; Pl.'s Decl., ¶I 6-7.
Defendants' attempts to draw inconsistencies between
Plaintiff's statements do not persuade the Court otherwise. See
Dkt. No. 80, p. 6. Defendants emphasize that Plaintiff could
not have been both "trying to brace [himself]" (as related at
his deposition) and holding his hands in the air (as stated in
his Declaration) at the moment that he was shot. See id.
Defendants err in assuming that "bracing" himself to get up
implies only that he was preparing to get up, or that he was
positioning himself to get up but had to have his hands flat on
the floor to do so. See Merriam-Webster, http://www.merriam webster.com/dictionary/brace (last visited Jan. 27, 2016)
(defining "brace" not only as "to prepare" or "to get ready for
something difficult or unpleasant" but also as "to put or plant
firmly" or "to make strong, firm, or steady") . In trying to
"brace" himself to get up, Plaintiff could mean that he was
AO 72A
(Rev. 8/82)
1
19
planting his feet firmly or steadying himself in order to reach
an upright position—neither of which would have required that
his hands remain on the floor.
Defendants also make much of the fact that Plaintiff, at
his deposition, "declined Defendant[s'] offer to agree that he
had 'one knee on the ground and one foot on the ground with
[his] hands up off the ground'" when he was shot. Dkt. No. 80,
p. 6 (second alteration in original) (quoting Pl.'s Dep., 5253) . While perhaps Plaintiff's answer would be in clear
conflict with his Declaration had this question concerned only
the position of his hands, this was not the case. Rather,
Plaintiff was responding to Defendant's description of his
overall body position—with one knee and one foot on the ground
and both hands in the air—and this response is not necessarily
inconsistent with his Declaration. Plaintiff's Declaration
details only the position of his hands when he was shot, see
Pl.'s decl., 11 6-7, and thus leaves open the possibility that
he had both knees or both feet on the floor when this occurred.
Because Plaintiff's Declaration refines, rather than
conflicts with, his prior deposition testimony, Plaintiff may
rely on the Declaration to create a genuine factual dispute at
this stage. The Court thus will consider Plaintiff's
Declaration in ruling on Defendants' summary-judgment Motion.
AO 72A
(Rev. 8/82)
1
20
II. Section 1983 Claims Against Deputy Kilgore
(Counts I and IV)
Defendants maintain that summary judgment is proper on
Plaintiff's Section 1983 claims against Deputy Kilgore, because
Deputy Kilgore's use of force was objectively reasonable. Dkt.
No. 67-1
pp. 12-25. Even if Deputy Kilgore used excessive
force, Defendants argue, he is entitled to qualified immunity on
Plaintiff's Section 1983 claims because his conduct did not
violate clearly established law. Id. at pp. 25-27.
"Qualified immunity protects government officials
performing discretionary functions from suits in their
individual capacities unless their conduct violates 'clearly
established statutory or constitutional rights of which a
reasonable person would have known."' Andujar v. Rodriguez, 486
F.3d 1199, 1202 (11th Cir. 2007) (quoting Dalrymple v. Reno, 334
F.3d 991, 994 (11th Cir. 2003)). A government official who
raises qualified immunity as an affirmative defense "must
initially establish that he was acting within his discretionary
authority." Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th
Cir. 2007) . If it is shown that the official was acting within
the scope of his discretionary authority, "the burden shifts to
the plaintiff to show that the official is not entitled to
qualified immunity." Id. at 1136-37.
AO 72A
(Rev. 8/82)
21
For the plaintiff to overcome qualified immunity, he must
show that "(1) the defendant violated a constitutional right,
and (2) this right was clearly established at the time of the
alleged violation." Holloman ex rel. Holloman v. Harland, 370
F.3d 1252, 1264 (11th Cir. 2004) (citing Wilson v. Layne, 526
U.S. 603, 609 (1999)); see also Davis v. Self, 547 F. App'x 927,
933 (11th Cir. 2013) ("Meanwhile, as the Supreme Court recently
reiterated, '[q]ualified immunity . . . protects all but the
plainly incompetent or those who knowingly violate the law.'"
(alterations in original) (quoting Messerschmidt v. Millender,
132 S. Ct. 1235, 1244 (2012) ) ) . "If the plaintiff prevails on
both prongs of this test, then the defendant is unable to obtain
summary judgment on qualified immunity grounds." Holloman ex
rel. Holloman, 370 F.3d at 1264. A court may decide, in its
discretion, which of the two prongs to analyze first. Gilmore
v. Hodges, 738 F.3d 266, 272-73 (11th Cir. 2013) (citing Pearson
v. Callahan, 555 U.S. 223, 232 (2009))
A. Discretionary Function
An officer was acting in the scope of his discretionary
authority if he was "(a) performing a legitimate job-related
function (that is, pursuing a job-related goal), (b) through
means that were within his power to utilize." Id. at 1265-66
(citing Hill v. Dekalb Reg'l Youth Det.Ctr., 40 F.3d 1176, 1185
n.17 (11th Cir. 1994)). This test requires analyzing the
A0 72A
(Rev. 8/82)
"general nature of the defendant's action, temporarily putting
aside the fact that it may have been committed for an
unconstitutional purpose, in an unconstitutional manner, to an
unconstitutional extent, or under constitutionally inappropriate
circumstances." Id. at 1266. For the first prong, "the
defendant must have been performing a function that, but for the
alleged constitutional infirmity, would have fallen with[in] his
legitimate job description." Id. (emphasis omitted)
For the second prong, the Court must determine whether the
officer was "executing the job-related function—that is,
pursuing his job-related goals—in an authorized manner." Id.
Each government employee is given only a certain
"arsenal" of powers with which to accomplish [his]
goals. For example, it is not within a teacher's
official powers to sign her students up for the Army
to promote patriotism or civic virtue, or to compel
them to bring their property to school to redistribute
their wealth to the poor so that they can have
firsthand experience with altruism.
Id. at 1267. Qualified immunity does not protect one who
pursues a job-related goal through means "fall[ing] outside the
range of discretion that comes with an employee's job." Id.
In the case at bar, it appears relatively undisputed that
Deputy Kilgore was acting in a discretionary capacity when the
alleged constitutional violations occurred. See Dkt. No. 67-1,
p. 28; Dkt. No. 76-1, p. 16. The execution of a search warrant
falls squarely within the realm of a police officer's legitimate
AO 72A
(Rev. 8/82)
23
job-related functions. Moreover, Plaintiff does not contend—and
nothing in the record suggests—that Deputy Kilgore used
unauthorized means to fulfill this job-related goal. Rather,
because it is undisputed that Deputy Kilgore was acting within
his duties as a police officer of the McIntosh County Sheriff's
Department when the alleged constitutional violations occurred,
Deputy Kilgore has sustained his burden of showing that he was
acting within the scope of his discretionary authority. The
burden thus shifts to Plaintiff to demonstrate that qualified
immunity does not protect Deputy Kilgore's conduct while acting
in this capacity.
B. Clearly Established Law
For the law to be "clearly established" such that a
plaintiff can overcome the qualified immunity defense, "the law
must have earlier been developed in such a concrete and
factually defined context to make it obvious to all reasonable
government actors, in the defendant's place, that what he is
doing violates federal law." Jenkins by Hall v. Talladega City
Bd. of Eddc., 115 F.3d 821, 823 (11th Cir. 1997) (internal
quotation marks omitted) (quoting Lassiter v. Ala.A & M Univ.
3d. of Trustees, 28 F.3d 1146, 1149 (11th Cir. 1994)); see also
Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir.
1993) ("[The] "clearly established' standard demands that a
bright line be crossed.") . Where the existing case law "has not
A0 72A
(Rev. 8/82)
MCA
staked out a bright line" showing that a particular course of
police conduct is clearly unconstitutional, "qualified immunity
almost always protects the defendant," Post, 7 F.3d at 1557
(citing Dartland v. Metro. Dade Cty., 866 F.2d 1321, 1323 (11th
Cir. 1989)), unless the plaintiff can show that the defendant's
actions were "so obviously at the very core of what the Fourth
Amendment prohibits that the unlawfulness of the conduct was
readily apparent to the official" even without caselaw on point,
Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997)
Plaintiff's Response to the instant Motion does not cite
any legal precedent that would have put Deputy Kilgore on notice
that his split-second decision to fire at Plaintiff was
unlawful. See Dkt. No. 76-1,
pp. 10-16. Rather, Plaintiff
states, "it was certainly well established law that an officer,
in a position similar to [Deputy] Kilgore, could not shoot a
person in the back with their hands up." Id. at p. 12.
However, the facts of this case are much unlike those that the
Eleventh Circuit has found to satisfy the "obvious clarity"
test. For example, in Oliver v. Fiorino, 586 F.3d 898, 907-08
(11th Cir. 2009), the Court determined that it would have been
clear to every reasonable officer that the use of a stun gun was
excessive where the plaintiff "was not accused of or suspected
of any crime, was not acting belligerently or aggressively,
complied with most of the officers' directions, and made no
AO 72A
(Rev. 8/82)
25
effort to flee." Harper v. Perkins, 459 F. App'x 822, 827 (11th
Cir. 2012) (citing Oliver, 586 F.3d at 908) .
Here, by contrast, Plaintiff was suspected of possessing
and dealing cocaine, SUF, ¶ 4, a significant and often dangerous
crime. Lee v. Ferraro, 284 F.3d 1188, 1199 (11th Cir. 2002)
(citing Rodriguez v. Farrell, 280 F.3d 1341 (11th Cir. 2002));
United States v. Diaz-Lizaraza, 981 F.2d 1216, 1221 (11th Cir.
1993) . Plaintiff was acting erratically during the search—
racing toward the trailer, stumbling multiple times, and
collapsing inside the doorway. SUF, 191 25-27; Dkt. No. 76-2, ¶
8. It is also undisputed that Plaintiff disobeyed orders to
freeze while lying in the doorway of the trailer and, instead,
chose to keep moving and raise himself up off of the floor. Id.
191 18-19, 35 (first citing Wainwright Dep., 46:7-22; then citing
Kilgore Dep., 61:15-18; and then citing Pl.'s Dep., 52:10-12,
53:3-6). His action—viewed from the perspective of an officer
in Deputy Kilgore's shoes—was consistent with an attempt to
evade the clear directions of the officers. Further
distinguishing this case from Oliver is that here, another
officer announced that Plaintiff had a gun on him, id. at ¶ 32,
and this weapon would have been easily accessible to him while
standing in close proximity to the other officers in the
trailer. See Carr v. Tatangelo, 338 F.3d 1259, 1269 & n.19
(11th Cir. 2003) (no constitutional violation where the
AO 72A
(Rev. 8/82)
26
defendant police officer shot the suspect based on another
officer's announcement that he was carrying a firearm, even
though the suspect was not, in fact, armed (citing McLenagan v.
Karnes, 27 F.3d 1002, 1006-07 (4th Cir. 1994))). On these
facts, the Court cannot conclude that this is the type of case
where the use of force to subdue the plaintiff "was so plainly
unnecessary and disproportionate that no reasonable officer
could have thought that this amount of force was legal under the
circumstances." See Oliver, 586 F.3d at 908. The Eleventh
Circuit's ruling in Harper v. Davis—while decided after the
events underlying this case—reinforces this result. 571 F.
App'x 906, 913-14 (11th Cir. 2014) ("obvious clarity" test not
met where the plaintiff, who was suspected of committing a
crime, intended to surrender and raised his empty hands in the
air but nevertheless appeared to be fleeing arrest and to have a
firearm within his reach)
As Plaintiff fails to demonstrate that any potential
constitutional violation in this case was clearly established
under existing law, Plaintiff cannot overcome the application of
qualified immunity to defeat summary judgment. Deputy Kilgore
is thus entitled to judgment in his favor on Plaintiff's Counts
I and IV, and this portion of Defendants' Motion is GRANTED.
III. State-Law Claim Against Deputy Kilgore (Count II)
AO 72A
(Rev. 8/82)
27
Defendants assert that official immunity protects Deputy
Kilgore from Plaintiff's claim for assault and battery in
violation of Georgia tort law. Dkt. No. 67-1, pp. 27-31.
The Georgia Constitution enshrines the principal of
official immunity, stating that a public official must not be
subject to suit for the performance of discretionary functions
unless he "act[s] with actual malice or with actual intent to
cause injury." Gilbert v. Richardson, 452 S.E2d 476, 482-83
(Ga. 1994) (quoting Ga. Const. art. I, § 2, para. 9(d))
"Actual malice" denotes "express malice or malice in fact,"
which require "a deliberate intention to do wrong.' Nerrow v.
Hawkins, 467 S.E.2d 336, 337-38 (Ga. 1996) (quoting Black's Law
Dictionary (6th ed. 1990)
In this way, actual malice is distinct from "malice," which
Georgia courts have defined as exhibiting "reckless disregard
for the rights of others," as well as the concept of "implied
malice" embracing conduct that demonstrates a "reckless
disregard for human life." Id. at 338. Nor does mere ill will
or "rancorous personal feelings" toward a plaintiff rise to the
level of actual malice when paired with a lawful act. Phillips
v. Hanse, 637 S.E.2d 11, 13 (Ga. 2006) (citing Nerrow, 467
S.E.2d at 337) . Further, "actual intent to cause injury"
requires intent to cause the harm suffered by the plaintiff and
"not merely an intent to do the act purportedly resulting in the
AO 72A
(Rev. 8/82)
claimed injury." Selvy v. Morrison, 665 S.E.2d 401, 405 (Ga.
Ct. App. 2008) (quoting Kidd v. Coates, 518 S.E.2d 124, 124 (Ga.
1999)).
Official immunity would protect Deputy Kilgore from
liability on Plaintiff's battery claim. Deputy Kilgore's
execution of a no-knock search warrant was a discretionary
function, as discussed supra, and Plaintiff does not point to
any evidence in the record to support his bare assertion that
Deputy Kilgore acted with actual malice while performing this
function, see dkt. no. 76-1, p. 16. To the contrary, the
evidence suggests that Deputy Kilgore did not know Plaintiff
before the day of the search, and that he did not communicate or
come into contact with Plaintiff at any point during the search
prior to firing a single shot at him. See SUF, ¶91 7-8, 18-19,
36-41. Deputy Kilgore's actions following the shooting further
reflect the absence of actual malice on his part, as he
immediately responded to Plaintiff's inquiry regarding his
reason for shooting by stating, "Man, you had a gun" and began
rendering first aid to him thereafter. See id. at 191 41-42.
Thus, the undisputed facts do not reflect that Deputy
Kilgore even exhibited ill will toward Plaintiff, much less a
deliberate intent to wrongfully harm him. As Plaintiff cannot
establish this requirement to abrogate official immunity,
A0 72A
(Rev. 8/82)
1011
Plaintiff cannot succeed on his battery claim. Defendants'
Motion is thus GRANTED as to count II.
IV. Section 1983 Claims Against the City of Darien and McIntosh
County (Counts I and III)
Defendants submit that the city of Darien and McIntosh
County are entitled to summary judgment on Plaintiff's Section
1983 claims against them, because Deputy Kilgore did not commit
any violation of Plaintiff's constitutional rights for which
these entities could be held responsible. Dkt. No. 67-1, p. 31.
Even if Deputy Kilgore had engaged in unlawful conduct,
Defendants reason, these claims would nevertheless fail because
Deputy Kilgore is not an employee of either entity. Id. at pp.
31-33. Defendants further argue that even if Deputy Kilgore's
employer were joined as a party to this action, Plaintiff would
be unable to prove supervisory liability to sustain his Section
1983 claims. Id. at pp. 33-39.
In Section 1983 actions, liability must be based on
something more than a theory of respondeat superior. Bryant v.
Jones, 575 F.3d 1281, 1299 (11th Cir. 2009); Braddy v. Fla.
Dep't of Labor & Ernp't Sec., 133 F.3d 797, 801 (11th Cir. 1998).
A supervisor may be liable only "when the supervisor personally
participates in the alleged constitutional violation or when
there is a causal connection between the actions of the
supervising official and the alleged constitutional
AO 72A
(Rev. 8/82)
IOQ
deprivation." Braddy, 133 F.3d at 802 (quoting Brown v.
Crawford, 906 F.2d 667, 671 (11th Cir. 1990))
Significantly, the Supreme Court of Georgia has determined
that "[t]he sheriff is an elected constitutional county officer
and not an employee of the county commission." Brown v. Dorsey,
625 S.E.2d 16, 21 (Ga. Ct. App. 2005) (quoting Ed. of Comm'rs of
Dougherty Cty. v. Saba, 598 S.E.2d 437 (Ga. 2004)). In other
words, "the [Georgia] Constitution has made the sheriff
independent from the
[c]ounty, notwithstanding the designation
of the sheriff as a 'county officer.'" Id. "In addition,
deputy sheriffs are deemed employees of the sheriff, not the
county, and the county cannot be held vicariously liable for the
negligence of the sheriff's deputies." Id. (citing Lowe v.
Jones Cty., 499 S.E.2d 348 (Ga. Ct. App. 1998)).
Even assuming, arguendo, that Plaintiff could prove that
Deputy Kilgore violated his constitutional rights, Plaintiff
cannot sustain claims against the City of Darien or McIntosh
County on the basis of such violation because he fails to
establish that these Defendants are supervisors of Deputy
Kilgore. The record reflects that Deputy Kilgore is a Deputy of
the McIntosh County Sheriff's Department and, as such, is an
employee of Sheriff Jessup, dkt. no. 1, pp. 3-4. See Brown, 625
S.E.2d at 21. Because neither Deputy Kilgore nor Sheriff Jessup
AO 72A
(Rev. 8/82)
31
is an employee of McIntosh County, this entity Cannot be liable
for their actions under a theory of respondeat superior.
Nor is there any employment relationship between these
officers and the City of Darien. At most, Plaintiff shows that
the McIntosh County Sheriff's Department put together a joint
task force with the City of Darien Police Department, and that
Deputy Kilgore served on this joint task force. SUF, 191 6-7, 9.
However, Plaintiff does not show that Deputy Kilgore's
participation on the joint task force somehow made him an
employee of the City of Darien Police Department. Nor does
Plaintiff allege, let alone establish, that any officer of the
City of Darien Police Department engaged in conduct that
violated Plaintiff's constitutional rights.
Accordingly, Plaintiff fails to set forth any basis upon
which a reasonable jury could hold the City of Darien and
McIntosh County liable for Deputy Kilgore's actions under
Section 1983. Summary judgment in favor of these Defendants on
Counts I and iii is, therefore, appropriate. This portion of
Defendants' Motion is GRANTED.
CONCLUSION
ased on the foregoing, Defendants' Motion for Summary
Judgment (dkt. no. 67) is GRANTED, and Defendants are entitled
to judgment in their favor on all claims. The Clerk of Court is
AO 72A
(Rev. 8/82)
32
DIRECTED to enter the appropriate judgment and to close this
case.
SO ORDERED, this 12TH day of February, 2016.
LISA GODSEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
AO 72A
(Rev. 8/82)
33
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?