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)

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