Alston v. City of Darien et al

Filing 39

ORDER granting Defendants' 22 Motion for Summary Judgment; and denying Plaintiff's 23 Motion for Partial Summary Judgment. The Clerk of Court is DIRECTED to enter the appropriate judgment and to close this case. Signed by Judge Lisa G. Wood on 11/17/2017. (csr)

Download PDF
3iii ?l9mteb Cottrt for ^oittl^ent Bisitrttt of (fleorgta Pntttoiotck IBtbiOton GEORGE ALSTON, Plaintiff, V. CV 216-66 CITY OF DARIEN, a municipality and county seat of Mclntosh County, Georgia; DONNIE HOWARD, individually and in his capacity as Chief of the Darien Police Department; ANTHONY BROWN, individually and in his capacity as a Police Officer for the Darien Police Department, Defendants. ORDER Pending before the Court are Plaintiff's George Alston and Defendants' City (^^Defendants'') (Dkt. No. of Darien, competing 23) and Donnie motions for Howard, for summary partial judgment and Anthony summary (Dkt. Brown judgment No. 22), respectively. The issues are fully briefed and ripe for review. For the reasons stated below, the GRANTED and Plaintiff's Motion is DENIED. A0 72A (Rev. 8/82) Defendants' Motion is FACTUAL BACKGROUND While stationed on the shoulder of Interstate 95, Darien Police Officer Anthony Brown observed a white Mercedes with dark window tint traveling southbound. Dkt. No. 23-1 p. 2; Dkt. No. 22-5, 6:24-25, 7:1-2. Brown initiated a traffic stop for a suspected violation of O.C.G.A. § 40-8-73, which prohibits , fixing of materials which reduce transmission or increase light reflectance through windows or windshields. Dkt. No. 22-5, 7:9- 24. While approaching the car. Brown also noticed that the vehicle's license plate was partially obscured. Dkt. No. 22-6, 6:1-3. Brown asked the driver of the car, George Alston, to roll up his windows; Brown then checked the windows with a tint meter. Dkt. No. 23-1 p. 2. The windows were tinted more darkly than is permitted under Georgia law. Dkt. No. 22-5, 7:15-17. Brown asked Alston for his license; Alston did not immediately comply, instead handing him an identification card from the Federal Law Enforcement Training Center (FLETC). Dkt. No. 23-1 p. 2. Brown then wrote Alston two citations: the first for an obstructed tag frame in violation of O.C.G.A. § 40-2-41, and the second for window tint violation under O.C.G.A. § 40-8- 73. Dkt. No. 30. Alston signed only one of the two citations and then—according to Brown—said 'My]ou know, this is the second time you've done this fucking bullshit." Dkt. No. 22-5 66:16-25, 67:1-11. Brown commanded Alston to ^Me]xit the vehicle" and told Alston he was under arrest. Dkt. No. 22-5, 50:15-19. According to Brown, Alston did not move, glaring at Brown instead. Dkt. No. 22-5, 50:21-23. Brown then drew his taser, pointed it at Alston's chest, and again commanded that Alston exit the vehicle. Dkt. No. 22-5, 11:1-12. Brown testified that the sole purpose of pointing his taser at Alston was because Alston did not immediately exit the vehicle when commanded to do so. Dkt. No. 22-5, 50:6-17. Faced with the taser, Alston did exit the vehicle and was placed in handcuffs. Dkt. No. 22-5, 12:14-25. According to Alston, Alston immediately told Brown that the handcuffs were '^too tight"—but Brown finished clamping and locking the handcuffs. Dkt. No. 22-4, 27:3-25, 28:1-5. Alston was arrested. According to Brown, the sole purpose of Alston's custodial arrest was to take him to be fingerprinted. Dkt. No. 22-5, 21:25, 22:1-2. The Attorney General had previously designated window tint violations as an offense for which violators must be fingerprinted. Dkt. No. 22-1 p. 3. Brown had thereafter been instructed to effectuate this policy by his superior; Brown stated that he had been directed by the Chief of the Darien Police Department to bring in anyone who was cited for window tint violations. Dkt. No. 22-5, 22:5- 10. Indeed, in his deposition, Darien Police Department Chief Howard confirmed that he had made that instruction on the basis of a request by the Clerk of the Mclntosh State Court. Dkt. No. 22-1, 32:5-12. The Clerk had been struggling to fill out paperwork as a result of the officers not making arrests for window tint violations, and had therefore requested that Chief Howard instruct his officers to arrest individuals for window tint violations. Dkt. No. 22-7, 32:7-35. But Alston says that Brown arrested him for another reason. According to Alston, Brown told Darien Officer Robbie Gault—who arrived at the scene of the arrest shortly after Alston's arrest—that Brown made the arrest because of how Alston '^acted in the car with his wife," and because Alston ^'was cussing [Brown] so I will call his job and have him fired." Dkt. No. 224, 28:11-17. Gault was responsible for transporting Alston to the jail. It took three to four minutes to travel to the Mclntosh County Jail, and then another two to three minutes before Gault could remove Alston's handcuffs. Dkt. No. 22-4, 30:17-19; 31:6-8. As Gault drove Alston to the jail, Alston told Gault that his handcuffs were too tight and asked him to loosen them. Dkt. No. 22-6, 5:6-21. Alston says that Gault told him, ^'You're a big guy; he should have used two pair of cuffs; he shouldn't have done that." Dkt. No. 22-4, 31:16-17. When Gault took the cuffs off his hands, Alston noticed that his left hand was swollen and his right hand was bleeding from a half-inch long gash. Dkt. No. 22-4, 33:14-22. Alston showed his injuries to jailor Tammy Skipper, who encouraged Alston to show his injuries to Brown's superior officer. Dkt. No. 22-4, 35:3-14. Gault's testimony, however, contradicted Defendant's assessment; he testified that Alston was not bleeding and only had ^'indentation of the skin" consistent with "normal use of a handcuff." Dkt. No. 22-6, 7:22- 8:8. The booking sheet from the Mclntosh County Jail, signed by Alston, indicated that Alston had no visible signs of "trauma or illness" or "pain [or] injury." Dkt. No. 22-1, Ex. B. And the records from Southeast Georgia Health Systems indicate that providers who examined Alston hours after his meeting with Brown noted neither bleeding nor contusions. Dkt. No. 22-1, Ex. C. After his arrest and release from jail, Alston went to the Brunswick hospital, where X-rays were taken of his left hand. Dkt. No. 22-4, 45:15-20. At a May 15, 2014 follow-up appointment with Dr. Dunn, Alston's X-ray revealed a positive Tinel's sign in his left wrist, which Dr. Dunn diagnosed as indicative of an irritated radial sensory nerve. Dkt. No. 32-2, 11:1-8. Alston returned on June 5, 2014 reporting the same symptoms. Dkt. No. 32-2, 11:13-19. Alston again reported to the hospital on April 10, 2015, where Dunn performed an MRI, revealing arthritis and a full thickness tear of a connective ligament in Alston's wrist. Dkt. No. 32-2, 12:12-22. Now three years after the incident. Alston continues to struggle with pressing the clutch of his motorcycle, performing yard work, and body building. Dkt. No. 22-4, 47:15-23, 48:8-12. Plaintiff brings several claims under 42 U.S.C. § 1983 (""Section 1983") against Officer Anthony Brown, Chief Donnie Howard, and against the City of Darien alleging: (1) false arrest in violation of the Fourth Amendment, (2) excessive force in violation of the Fourth Amendment, and (3) liability of the City of Darien (Dkt. No. 1). He also alleges violations by Officer Brown and Chief Howard of Alston's First Amendment Rights and denial of a petition for redress. (Dkt. No. 1). Defendants moved for summary judgments on all claims. Dkt. No. 22. Plaintiff moves for partial summary judgment only on the claims of false arrest and excessive force. Dkt. No. 23. LEGAL STANDARD The party seeking summary judgment bears the initial burden of demonstrating the basis for its motion for summary judgment and identifying those answers to interrogatories, demonstrate Taylor v. (citation portions of the and absence genuine Espy, of 816 omitted). If any F. it Supp. shows pleadings, depositions, admissions issue 1553, that which of 1556 there it believes material (N.D. is Ga. fact. 1993) insufficient evidence supporting the nonmoving party's case, the moving party has satisfied its burden. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmovant genuine issue of material fact for trial. Lobby, Inc., 477 U.S. 242, 257 (1986). this burden evidence, which Fitzpatrick v. City (quoting motion to or of 477 the contains by F.3d U.S. motion, moving party." the 1112, at to on ^^supporting verdict 1116 332 (11th Cir. (Brennan, J., nonmovant ''may based at 1117. this 2 a Anderson v. Liberty directed sufficient trial carry a demonstrate The nonmovant may meet record ignored' Atlanta, evidence at the withstand Celotex, deficiency." attempt to Alternatively, additional verdict that ^overlooked dissenting)). with showing sufficient was 1993) by to come withstand the a alleged forward directed evidentiary But should the nonmovant instead burden with nothing more "than a repetition of his conclusional allegations, summary judgment for the defendants [is] not only proper but required." Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981). At the summary responsibility "not to judgment weigh stage, the it evidence is and the Court's determine the truth of the matter but to determine whether there is a genuine issue for trial." Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (quoting Anderson, 477 U.S. at 249 (1986)) (internal quotation marks omitted). When, as here, the parties have filed cross- motions for summary judgment, the applicable Rule 56 standard is not affected. See Gerlinq Glob. Reinsurance Corp. of Am. v. Gallagher, 267 F.3d 1228, 1233-34 {11th Cir. 2001). 'MTJhe facts are viewed in the light most favorable to the non-moving party on each motion." Chavez v. Mercantil Commercebank, N.A., 701 F.3d 896, 899 (11th Cir. 2012). DISCUSSION Plaintiff alleges that Defendants committed numerous violations of Section 1983. Plaintiff specifically makes a number of federal law claims against Brown and Howard in their official and individual capacities, in addition to seeking to hold the City of Darien liable for their actions. See generally Dkt. No. 1. In response. Defendants assert that qualified immunity protects them from the claims asserted against them in their individual capacities. Dkt. No. 22. Plaintiff asserts that he is entitled to summary judgment on the claims of false arrest and of excessive force. Dkt. No. 23. Defendants assert they are entitled to summary judgment on all claims. Dkt. No. 22. A. Plaln-biff s 42 U.S.C. § 1983 claims do not succeed ^^Qualified performing individual established immunity discretionary capacities statutory protects functions unless or their government from suits conduct constitutional officials in violates rights of their clearly which a reasonable person would have known." Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003). When properly applied, the doctrine protects ^^all but the plainly incompetent knowingly violating the federal law." or one who is Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)). To receive qualified immunity, a government official must prove he was ^^acting within his discretionary authority" at the time the alleged wrongful acts occurred. Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003). An official may demonstrate that he was establishing legitimate this acting two through things: his first, discretionary that job-related function" and function ^^through means that he ^Vas second, were authority by performing a that within he his pursued power to utilize." Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). Once the was acting shifts to within the his plaintiff Defendant demonstrates that he discretionary to show authority, that the "the defendant burden is not entitled to qualified immunity." Cottone, 326 F.3d at 1358. Here, Officer Brown was acting within his discretionary authority as an officer when he placed Mr. Alston under arrest. McClish V. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007) (noting that an officer acts within his discretionary authority at the time of an arrest). The burden thus shifts to the plaintiff to demonstrate that qualified immunity does not apply. Terrell v. Smith, 668 F.3d 1244, 1250 (11th Cir. 2012). The Court defendant is Callahan, 555 plaintiff's asks two entitled U.S. questions to 223, allegations, to qualified 232 if (2009). true, determine whether immunity. The Court establish a Pearson asks a v. ^Vhether constitutional violation." Hope v. Pelzer, 536 U.S. 730, 736 (2002). The Court also assesses "clearly whether established the at constitutional the time of the right at alleged issue was violation." Harland, 370 F.3d at 1264. A right is clearly established when it is " "clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Whittier v. Kobayashi, 581 F.3d 1304, 1308 (11th Cir. 2009); see also Post v. City of Fort Lauderdale, 7 law, in factual F.3d terms, 1552, has 1557 (11th Cir. 1993) ("If case not staked out a bright line, qualified immunity almost always protects the defendant."). therefore begin by analyzing whether Defendants We violated Plaintiff's constitutional rights. 1. Plaintiff s false arrest claims do not succeed Plaintiff argues that his arrest was made without probable cause. A warrantless arrest without probable cause violates the Constitution Kinqsland v. and serves City of as the Miami, basis 382 of F.3d a Section 1220, 1226 1983 claim. (11th Cir. 2004). But existence of probable cause at the time of the arrest 10 is an absolute bar to a Section Id. The Court must decide 1983 whether action for false arrest. Defendants demonstrate, as a matter of law, that probable cause existed to arrest Alston. Probable '^objectively cause to arrest reasonable exists based on where the an arrest totality is of the circumstances." Id. (citing Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998)). An arrest is objectively reasonable when the facts and circumstances "within the collective knowledge of law enforcement officials, information, are caution to derived sufficient believe that from to an cause offense reasonably a person has trustworthy of been reasonable or is being committed." Brown v. City of Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010). When determining whether an official is entitled to qualified immunity, however, the Court asks whether an officer had arguable—not actual—probable cause. Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997). Arguable probable cause to arrest exists if objectively reasonable officers in the same circumstances officer and effectuating possessing the probable cause existed. arrest the same could knowledge have as believed the that Case v. Eslinqer, 555 F.3d 1317, 1327 (11th Cir. 2009). The undisputed facts set forth in the record indicate that Defendants had arguable probable cause to believe that Plaintiff had committed the offenses for which Defendants made the arrest. 11 Here, there is no question that a reasonable officer would have believed that Alston violated the law by obscuring his license plate tag. And there is no question-nor do the parties disputethat a reasonable officer could have believed that Alston violated the law by having windows tinted beyond what is legally permitted. In Georgia, a law enforcement officer is permitted to make a warrantless arrest if the ^^offense is committed in such officer's presence knowledge." O.C.G.A. or § within such officer's 17-4-20(a)(2)(A). Officer immediate Brown had personal knowledge of both offenses, and therefore possessed arguable probable cause to make an arrest. Plaintiff contends, however, that his signing of one of the two citations essence, window he criminal violation, of Therefore, Officer argues that tint violation eliminated O.C.G.A. activity Brown to or once he § Plaintiff Officer he Brown's signed effectively 40-8-73.1(b). asserts, some probable cause have made a lawful Amendment. Dkt. No. 23-2 p. 13. probable the citation for posted Dkt. arrest bond No. modicum must cause. have for 23-1 of p. his his 8. additional occurred under In the for Fourth This argument fails to carry the day for two reasons. First, assuming arguendo that Plaintiff is correct in the argument that he had indeed posted bond by signing a citation, he had not posted bond for both offenses. Plaintiff had signed 12 one citation, but not both. As such, Plaintiff had not yet posted bond for the second alleged violation of Georgia law. Defendants therefore retained probable cause to make an arrest. But second—and more fundamentally—signing a citation does not, in fact, arrest. eviscerate an officer's ability to make an ''^For probable cause to exist, . . . an arrest must be objectively reasonable based on the totality of the circumstances." Lee v. Ferrari, 284 F.3d 1188, 1195 (11th Cir. 2002). the Here, those circumstances included guidance issued from Attorney department General and requiring the Brown policy to of bring their own Plaintiff police in for fingerprinting. Plaintiff cites to State v. Torres for the proposition that Officer Brown only has one chance to choose between issuing a citation and 660 S.E.2d 763, 765 (Ga. App. 2008). But this is not so. The court in State v. Torres held that once an offer has elected to issue a citation for a traffic offense, and the driver refuses to sign that citation, the officer cannot, under Georgia law, arrest. Id. Court and ""change First, the his it is Eleventh mind" and worth Circuit instead noting have that held make a both the that such custodial Supreme state law limitations on an officer's authority to make arrests are not incorporated into the Fourth Amendment. Ducre v. Archer, 653 F. App'x 896, 897 (11th Cir. 2016); 13 Virginia v. Moore, 555 U.S. 164, 173-76 (2008) (rejecting an attempt to incorporate into the Constitution state law arrest limitations). But too, Georgia courts have clarified that the holding in Torres is far narrower than Plaintiff contends it to be. The Georgia Court of Appeals has clarified that Torres' holding merely requires that ^^once an officer decides to issue a citation, rather than arrest someone for certain traffic violations, the officer must explain that signing the citation does not mean acknowledgement of guilt and that the consequence of failing to sign the ticket is having to post a cash bond." Watkins v. Latif, 323 Ga. App. 306, 310 (2013). In other words, requiring that once an officer proceeds down the path of citation, he is then statutorily obligated to give explanations of what that citation means under Georgia law. Torres does proposition not, that as the Plaintiff officer contends, who has stand issued a for the citation is opposite of thereafter precluded from effectuating an arrest. In fact, precedent more what Plaintiff contents. OCGA § 17-4-23(a) broadly supports the In Brock v. State, the Court held that ""gives police the discretion to write a citation but does not preclude physical arrest." 196 Ga. App. 605, 606 O.C.G.A (1990). § And 17-4-20 warrantless arrest for including crimes—like the court permits a the a crime in police v. State officer committed traffic 14 King in violations held to his in that make a presence, the present case-that are misdemeanor offenses. 161 Ga. App. 382(1). Case law tends to confirm that officers have discretion to determine whether to issue a citation or make an arrest, and that the ability to make an arrest is not precluded in the case of minor traffic violations. Nor will the Court embrace Plaintiff's contention that officers must irrevocably choose between citations and arrests in every case. If this Court were to require officers to conclusively choose between issuing a citation and effectuating an arrest, it would risk putting officers in danger. Imagine a detained individual becomes belligerent after being issued a citation. If the proposes, an officer citation, he Court would now implemented would be the rule hamstrung; that having Plaintiff issued the be powerless to use the power of the state to arrest the individual—even in an escalating, dangerous situation. Such a rule would be ill-advised. Because Officer Brown witnessed the obscured tag and the unlawfully tinted window, he possessed arguable probable cause to effectuate an arrest. Alston's signing of a citation is immaterial to Officer Brown's possession of arguable probable cause to probable V. make cause. an arrest. Plaintiff's Gumbinner, 905 F.2d Because Section 1503, Officer possessed arguable 1983 claim fails. See Marx 1505-06 15 (11th Cir. 1990) (''The existence of probable cause . . . is an absolute bar to a section 1983 action for false arrest.") 2. Plaintiff's excessive force claims do not succeed Plaintiff next argues that Officer Brown violated his Fourth Amendment right to be free from excessive force. Use of excessive force in carrying out an arrest constitutes a violation of the Fourth Amendment. Graham v. Connor. 490 U.S. 386, 394 (1989). This Court's review centers on whether the force used by Officer Brown was objectively reasonable from the perspective of a reasonable officer on the scene. Graham, 490 U.S. at 396. The Eleventh Circuit has identified three factors to evaluate for determining if the force used by an officer in making an arrest was objectively reasonable: "(1) the need for the application of force, (2) the relationship between the need and amount of force used, and injury inflicted." (3) the extent of the Stephens v. DeGiovanni, 852 F.3d 1298, 1324 (11th Cir. 2017) (citing Vinyard, 311 F.3d at 1347). The evidence in the light most favorable to Plaintiff shows that Officer Brown took Plaintiff's arms and applied handcuffs behind his back. Dkt. No. 22-4, 26:25, 27:1-2. Plaintiff complained to Officer Brown that the handcuffs were too tight, but Officer Brown tightened them further. Dkt. No. 22-4, 27:3-9. Plaintiff remained in handcuffs during the three to four minute ride to the jail, and then for 16 an additional three to four minutes after arriving. Dkt. No. 22-4, 30:17-19; 31:6-8. Plaintiff experienced swelling and bleeding from the cuffs rubbing against his skin, and was later diagnosed with a severed nerve that continues to give him discomfort and pain. Dkt. No. 22-4, 33:14-25, 34: 1-25. The Court examines each of the three Graham factors in turn. Turning to the need for the application of force: this Court determined that Officer Brown had the authority to determine whether to issue a citation or to effectuate an arrest. Having chosen to make an arrest. Officer's Brown's right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham, 490 U.S. at 396. The Eleventh Circuit recognizes that an arrest carries with it some force and injury. See Nolin v. Isbell, 207 F.3d 1253, 1257-58 (11th Cir. 2000). Officer Brown was entitled to use a de minimis amount of force to effectuate an arrest. Turning next to the amount of force used: Plaintiff's infraction was minor and Plaintiff did not pose an immediate threat. However, the situation was escalating; Plaintiff had not immediately followed two of Officer Brown's directions (to produce his license and to step out of the car) and had, in fact, cursed at Officer Brown. Dkt. No. 22-2 p 2-3. Officer Brown was entitled to employ 17 only that quantum of force reasonably necessary ''to subdue and secure" Alston. See Lee, 284 F.3d at 1198. And he did so. Officer Brown only applied sufficient force to fasten handcuffs around Plaintiff's wrists. And finally, examining the extent of the injury inflicted: looking at Plaintiff, the facts Officer in Brown the used light most sufficient favorable to amount of force the to cause Plaintiff pain and ongoing injury (in the form of damage to his radial nerve). Dkt. No. 1, SISI 88, 89. But this Court has held that "painful handcuffing, without more, is not excessive force in Rodriguez cases v. where Farrell, the 280 resulting F.3d 1341, injuries 1351 are (11th minimal" Cir. 2002) (holding that handcuffing during arrest and transportation to the police station was not excessive force, even though the handcuffing aggravated a pre-existing injury and caused loosening of internal surgical hardware, displacement of a bone fragment, twenty-five subsequent surgeries, and ultimate amputation of the arm below the elbow); Gold v. City of Miami, 121 F.3d 1142 (holding that handcuffing for twenty minutes, resulting in skin abrasions and pain, was not excessive force); Nolin, 207 F.3d at 1257-58 (granting qualified immunity where officer shoved plaintiff into car, pushed knee into his back, held his head against a van, uncomfortably searched his groin area, and placed him in handcuffs, causing bruising). 18 Defendants argue that this case is indistinguishable from Collins—v_.—Ensley. 498 Fed. App'x 908 (11th Cir. 2012). In Collins, an officer applied handcuffs to effectuate an arrest for a misdemeanor crime. As a result of the routine handcuffing, Collins sustained injury to a ligament in his wrist and suffered from permanent, ongoing numbness in his hand as a result of the handcuffing. "Nevertheless," the Court said, "minimal force does not become excessive because severe or tragic results occurred." at 913. The Court agrees that the amount of force and resulting injury in this case is indistinguishable from those in Collins, and therefore conclude that Officer Brown's use of force was not excessive and that Alston's constitutional rights were not violated. Alston contends that he should be granted summary judgment because of spoliation of evidence. Dkt. No. 23-2. p. 10. Gault stated that his patrol vehicle video recorded Alston and Brown's interaction at the time that Alston would have been complaining about the pain from handcuffs. Dkt. No. 23-2 p. 10. And Chief Howard acknowledged that Gault's patrol vehicle had taken ''a little bit of video," but he determined that the video did not show anything determinative either way. Dkt. No. 22-7, 11:3-9. Alston asks the court that a presumption be held in his favor and against the Defendants because ^^evidence has clearly been destroyed." Dkt. No. 23-2. p. 11. 19 The Court disagrees. Plaintiff is required to demonstrate that spoliated evidence is crucial to the movant's ability to prove his prima facie case; demonstrating that ^^the spoliated evidence would have been relevant to a claim or defense is not enough. Managed Care Solutions^ Inc. v. Essent Healthcare/ Inc., 736 1327-28 F. Supp. 2d 1317, (finding that the allegedly spoliated evidence was not crucial to the plaintiff's claims because it could still prove its case through other evidence already obtained elsewhere); see also Fleeter v. City of Orlando, 2007 WL 486633, at *6 (M.D. Fla. 2007) (missing emails may be relevant to Plaintiff's case but they were not critical and would have been cumulative). Here, it is not clear that there is spoliated evidence, and even so, Alston has been able to admit evidence—in the form of his own affidavit—that testifies to the same material as what would be on the video. In resolving Defendants' motion for summary judgment, this Court has viewed the evidence in the light most favorable to Alston, including his testimony that he complained to Officer Brown about the tightness of the handcuffs. The Court therefore does not need any video that may or may not exist, as it is not critical and would be cumulative. 3. Qualified immunity liability on either claim. 20 shields Defendants from In any event, even if the Court found that the amount of force used was unreasonable, qualified immunity would shield Defendant from liability. A government employee is entitled to a judgment of qualified immunity ''unless the employee's conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known." Morse v. Frederick, 551 U.S. 393, 429 (2007). Because the facts of this case are similar to Collins v. Ensley, 498 Fed. App'x 908 (11th Cir. 2012), applying Officer handcuffs Brown in would the have course been of on notice arrest—even if that that application of force later results in pain and nerve damage—is not unreasonable. And too. Officer Brown had arguable probable cause to effectuate an arrest. Because Officer Brown possessed arguable probable cause and did not exert unreasonable force in effectuating his arrest. Plaintiff has been unable to meet his burden of demonstrating constitutional rights. As that Officer such. Defendant Brown violated would therefore his be entitled to qualified immunity on Plaintiff's claims under 42 U.S.C. § 1983. B. Alston's claims for violation of his First Amendment rights do not succeed. Plaintiff brings several claims against Defendants Howard and Brown: against Brown are claims of "chilling speech by arrest" and "chilling speech by harassment," and against Howard 21 are claims of ^^chilling speech by intimidation" and ^Menial of petition for redress of grievances." The Court addresses each in turn. Existence First of Amendment probable claim constitutionally of cause to arrest retaliatory protected speech. Alston arrest Dahl v. on the Holley, defeats basis 312 a of F.Sd 1228, 1236 (11th Cir. 2002). Because this Court has previously determined that Officer Brown Alston, Alston is barred from had probable cause to arrest asserting claims for ''chilling speech by arrest." Turning to the claims for "chilling speech by harassment," the Court treats retaliation. this as Retaliation constitutionally claim exists protected retaliatory conduct a by the for when speech by defendant First there the Amendment is plaintiff; adversely affecting (1) (2) the protected speech, and (3) a causal connection between the first two elements. Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005). As Alston fails to satisfy either the second or the third elements, his claim therefore fails. First, Alston is not able to demonstrate retaliatory conduct by Brown adversely affecting protected Brown speech. Alston retaliated against plead him in for his complaint that Officer were made against [Brown] by Alston" by calling Alston's employer. Dkt. 22 "complaints that No. 1, Sin 64, 68. But in his response, Alston alleged a new reason that Brown allegedly retaliated against Alston: ^^for his conduct at the scene of the traffic stop." Dkt. No. 29 p. 23. ^^At the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint" in accordance with the Federal Rules of Civil Procedure. Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). Alston that cannot now Brown retroactively amend retaliated against him his for complaint to his behavior state at the traffic stop rather than on the basis of Alston lodging formal complaints with Brown's employer. The Court retaliation retaliated therefore pled in against the Alston examines only Complaint. on the those Examining basis of reasons whether Alston's for Brown formal complaint against Brown, Alston's contention does not succeed. Brown contacted Alston's employer before Alston lodged a complaint against Brown. As such, Alston fails to carry his burden as to the second prong. Alston is his complaint also unable to about Brown show a causal connection and Brown contacting between Alston's employer. Alston testified that Brown told him at the time of his arrest that Brown would contact his employer. Dkt. No. 22-4, 54:14-17, contact 55:3-4. Alston's Brown employer also testified about 23 Alston's that he conduct planned during to the arrest without regard to whether or not Alston lodged a complaint against him. Dkt. No. 22-5, 58:1-25, 59:1-24, 60:1-7. Plaintiff is complaints Brown's therefore about prior unable Brown decision were to to the call show that ^'motivating Alston's his subsequent factor employer. behind" Abella v. Simon, 482 Fed. Appx. 522, 523 (11th Cir. 2012). Because Alston does not succeed in proving the second or third elements of the retaliation claim, he is unable to prove that Officer Brown retaliated against him on the basis of protected speech. The Court now turns to Alston's claims against Chief Howard. Alston's claims that Chief Howard engaged in "chilling speech by intimidation" and his claim of "denial of petition for redress of grievances" both alleged that Chief Howard refused to investigate Alston's complaints against Officer Brown and threatened to cause problems for Alston if Alston continued to pursue those complaints. Dkt. No. 1. SISI 56-63, 93-102. But the evidence, including Alston's affidavit, does not indicate that Howard engaged in Howard explained any that threats. Brown Rather, and it Alston's demonstrates testimony that would be weighed against one another if Alston brought suit. Dkt. No. 224. 44: 10-24. Nor does Alston's testimony show that Howard refused to look into Alston's complaint against Brown; instead, it shows that Howard affirmatively contacted Alston to discuss 24 his informal complaint and ask for his signature on the allegations. Dkt. No. 22-1, 24:20-25:17. Though the Court finds that Officer Brown and Howard did not did, violate they Brown's Plaintiff's would call to be First Amendment entitled to rights, qualified even if immunity. they Neither Alston's employer to report Alston's conduct during the traffic stop nor Howard's requirement that a sworn statement be provided in order to initiate an investigation for officer misconduct has been established as conduct that violates clearly established First Amendment rights. Defendants' motion for summary judgment on all First Amendment claims is granted. The Court now turns to Alston's claims against the City of Darien. C. Alston's claims against the City of Darien do not succeed. A municipality may only be held liable under Section 1983 for acts of one of its officers if the plaintiff can establish that an official local government custom or policy was the ''moving force" behind the deprivation of a constitutional right. Bd. of Cty. Commm'rs v. Brown, 520 U.S. 397, 404 (1997). A city is therefore "liable under § 1983 only for acts for which [the city] is actually responsible." Turquitt v. Jefferson Cty., 137 F.3d 1285, 1287 (11th Cir. 1998). Here, for the City of Darien to be responsible for Officer Brown and Chief Howards' actions, 25 Plaintiff must ^^identify a municipal caused his injury." ^policy' or ^custom' that Gold v. City of Miami, 151 F.3d 1346, 1350 (llth Cir. 1998). Plaintiff claims that the city (1) "'maintain[s] a vague and ambiguous use of force policy which fails to provide clear guidance as to the definition of excessive force," (2) that the city "ha[s] a policy . . . of ratifying police misconduct," and (3) that the city fails "to conduct thorough, objective, and uniform investigations and evaluations of officer misconduct and incidents involving the use of excessive force." Dkt. No. 1. SISI 109, 110. The Court looks to whether there is evidence of an official failure policy, to train an or informal custom supervise or that practice, amounts to or the else basis a of Section 1983 liability. It finds that there is not. First, a city may be liable under Section 1983 for their employee's the city violation follows of another's constitutional an or official rights unofficial where policy of constitutional violations. In the Eleventh Circuit, a party may establish that such a policy exists by proving either "(1) an officially promulgated county policy or (2) an unofficial custom or practice of the county shown through repeated acts of a final policymaker for the county." Grech v. Clayton County, 335 F.3d 1326, 1329 (llth Cir. 2003). Alston evidence that the City has an 26 has failed to produce any official policy of "ratifying police misconduct," and as such, has failed to carry his burden of demonstrating evidence of an official policy. In the absence of an official policy, this Court looks for evidence of an unofficial custom or practice. A plaintiff may establish an unofficial policy exists when he demonstrates ^'*a widespread practice . . . so permanent and well settled as to constitute a custom or usage with the force of law." Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991). Liability may then attach to the municipality because the unofficial practice is ^Meemed authorized by the policymaking officials because they must have known about it but failed to stop it." Grech, 335 F.3d at 1330 n. 6. In his complaint. Plaintiff alleges that the City of Darien has the custom or practice of ^^ratifying police misconduct" and of ^'failing to investigations conduct and thorough, evaluations objective, of officer and uniform misconduct and incidents involving the use of excessive force." Dkt. No. 1. 5SI 109, 110. But discovery has shown these allegations to be unsubstantiated. In fact, the record does not contain evidence of a single instance in which the City either ratified police misconduct or evaluations therefore School Bd. failed of officers' failed of to to meet Volusia conduct use his Cnty., of proper excessive burden Fla., 27 of 218 investigations force. proof. F.3d Plaintiff See 1267, or Denno 1277 v. (11th Cir. 2000) (holding that evidence of three violations in a short period of time was not sufficient to establish custom or policy). Because Plaintiff has not identified a single instance that could, cumulatively, constitute a widespread practice of misconduct, he has failed to meet his burden. Finally, inadequate training of law enforcement may serve as a third basis of liability under Section 1983 when failure to train amounts to deliberate indifference to the rights of persons with whom officers come into contact. Gold, 151 F.3d 1346, 1350-51 (11th Cir. 1998). To show ''deliberate indifference," a plaintiff must present some evidence that the City of Darien was aware of a need to train or supervise in a particular area based on "a history of widespread prior abuse" yet "made a deliberate choice not to take any action." Gold, 151 F.3d at 1350. As held above, because Alston has not presented evidence of the "history of widespread prior abuse" required to demonstrate that the City of Darien was on notice that there was a need for training, he has failed to meet his burden of proof. Having failed to demonstrate evidence of an official policy, an unofficial policy, or a failure to train, Alston's claims against Defendant's the motion City for of Darien summary granted. 28 cannot judgment on succeed. these As such. claims is CONCLUSION For the reasons set forth above. Plaintiff's motion for partial summary judgment {Dkt. No. 23) is DENIED and Defendant's motion for summary judgment (Dkt. No. 22) is GRANTED. The Clerk of Court is DIRECTED to enter the appropriate judgment and to close this case. SO ORDERED, this 17th day of November, 2017. HON: LISA GODBE¥ WOOD, JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA A0 72A (Rev. 8/82) 29

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?