Harper v. Perkins et al
Filing
97
ORDER granting in part and denying in part 67 & 72 Defendants' Motions for Summary Judgment. Signed by Chief Judge Lisa G. Wood on 6/17/2013. (csr)
R the Entteb Statto Motrtet Court
for the Ooutbtrn Motrict of Qkorgta
Waptrogo 3ibiion
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Plaintiff,
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vs.
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CHRIS PERKINS; RODNEY COURSON;
JEREMIAI-I DAVIS; and MATT GOURLEY *
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Defendants.
JOSEPH HARPER,
CV 5 10-047
ORDER
Presently before the Court are Motions for Summary Judgment
filed by Defendants Rodney Courson, Jeremiah Davis, Chris
Perkins, and Matt Gourley. See Dkt. Nos. 67, 72. For the
reasons stated below, Defendants' Motions are GRANTED in part
and DENIED in part.
BACKGROUND
On Memorial Day 2008, Defendant Officers Chris Perkins,
Rodney Courson, Jeremiah Davis, and Matt Gourley were called to
respond to a domestic call on Lobolly Avenue in Coffee County,
Georgia. Dkt. No. 79, ¶ 1. Plaintiff Joseph Harper lived at a
residence on Lobolly Avenue with his fiancée Mary Crimmins,
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Crimmins and Harper's two young children, Harper's nephew
Brandon Singleton, and Singleton's wife. Dkt. No. 79, ¶ 2.
After a day of holiday festivities, Plaintiff and Crimmins
had a heated argument which evolved into a physical altercation.
During this altercation, 911 received a "hang up" phone call
from Crimmins, where Crimmins called 911 but no information was
conveyed. Dkt. No. 79, 191 22-24. Eventually, Singleton, who
observed the altercation, called 911 and requested police
assistance. Dkt. No. 79, ¶ 3334.'
At approximately 10:25 p.m., the 911 dispatcher sent
Officer Perkins to the scene. Dkt. No. 79, ¶ 35. The
dispatcher told Officer Perkins that 911 had received a call at
the residence because there was a man there with a "gun pointed
at everybody." Dkt. No. 79, ¶ 37. The dispatcher also informed
Officer Perkins that, although Crimmins and Crimmins's children
had left the residence, there were still people in the residence
and that the offender was "shootin' off" the gun. Dkt. No. 79,
¶ 44.
En route, Officer Perkins was flagged down by Crimmins, who
had left the scene. Dkt. No. 79, ¶ 47. Officer Perkins saw
"visible injuries" on Crimmins. Dkt. No. 79, ¶ 48. Crimmins
1
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Through the course of discovery, numerous details about the argument
and the events leading up to the argument have been uncovered. See
Dkt. No. 67, Ex. 1, ¶91 10-26. However, in light of the applicable
legal standard, this description of the facts focuses on the
information conveyed to Defendants prior to the tasing.
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informed Officer Perkins that Plaintiff "had been drinking
pretty much all day and had been taking methadone." Dkt. No.
79, ¶ 49. After speaking with Crimmins, Officer Perkins
continued onto the residence where he met Officer Courson. Dkt.
No. 79, ¶ 51.
Officers Perkins and Courson talked to Singleton, who told
them he heard "yelling and screaming" coming from another room.
Dkt. No. 62, 57:1-25; Dkt. No. 79, 9191 51-52. Singleton informed
the officers that Singleton went in the room to investigate "and
saw [Plaintiff] on top of Ms. Crimmins beating her."
2
Dkt. No.
62, 57:1-25. Singleton told Plaintiff to stop and Plaintiff
complied. Dkt. No. 62, 57:1-25. Plaintiff left the area and
went into his bedroom. He "c[ajme back out with a rifle in his
hand." Dkt. No. 62, 57:1-25. It was at that point that
Crimmins left with her children. Dkt. No. 62, 58:2-4.
Singleton further informed the officers that Plaintiff kept
yelling "I wish y'all would just leave me alone." Dkt. No. 62,
58:2-4. Plaintiff "began firing the rifle into the ceiling" and
told Singleton he was going to kill himself. Dkt. No. 62, 58:69. Singleton stated that Plaintiff then ran out the back door
2
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Plaintiff denies that he hit Crimmins or that he took methadone.
Dkt. No. 64, 32:5-6, 34:12-18. However, the focus of this
description of the facts is what Defendants were told. Thus, whether
or not Plaintiff actually hit Crimmins or took methadone is
immaterial for present purposes.
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of the residence with the rifle, prior to the officers' arrival.
Dkt. No. 62, 58:6-9.
Officer Courson "took photographs of the bullet holes and
the one shell casing on the floor" of the residence. Dkt. No.
62, 58:13-15. Officer Perkins "observed a total of five holes
in the ceiling." Dkt. No. 62, 58:14-15. In light of the
circumstances, Officer Perkins "called for K-9 units to come
assist [them] with finding [Plaintiff]." Dkt. No. 62, 58:13-16.
Officers Davis and Gourley were called to the scene. Dkt.
No. 79, ¶I 61-63. It was these officers who eventually tased
Plaintiff. Unlike the other defendants, Officer Gourley was not
an employee of the Coffee County Sheriff's Department. Dkt. No.
79, ¶JI 5-6. Officer Goruley was a canine officer with the
Georgia Department of Corrections. Officer Gourley had a
bloodhound. Dkt. No. 79, ¶ S. Officer Davis contacted Officer
Gourley because "they had a dangerous situation where a subject
had fled in the woods with a rifle." Dkt. No. 79, ¶ 63.
Like Officer Perkins, Officer Gourley testified that he
encountered Crimmins on his way to the residence and stopped to
speak with her by the side of the road. Dkt. No. 79, ¶ 64.
Crimmins told Officer Gourley that "she was afraid to go to her
house because of what had happened." Dkt. No. 79, ¶ 65.
Upon their arrival, Officer Perkins informed Officers Davis
and Gourley of the situation. Officer Perkins testified that he
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told them "[e]verything [Plaintiff] had done to [Crimmins], that
he ran out the back door with a gun in his hands in the woods,
intoxicated, possibly high on methadone." Dkt. No. 79, ¶ 68.
Officer Perkins told them "[e]verything that [he] had learned."
Dkt. No. 79, ¶ 68. Thus, Officers Davis and Gourley knew that
Plaintiff had fired rounds in the house, threatened to kill
people, had attacked his fiancée, had a weapon he had already
discharged, and possibly also had a knife. Dkt. No. 79, ¶ 69.
Officer Perkins instructed the officers to wear bulletproof
vests, which was not the norm for tracking a suspect. Dkt. No.
79, ¶ 70.
All four officers set off into the woods in search of
Plaintiff. Officer Gourley, with his bloodhound, led the
search. Dkt. No. 79, ¶ 73. Defendants used flashlights to
guide their path because of the late hour. Dkt. No. 79, ¶ 72.
When Plaintiff observed sirens and police vehicles arriving
at the residence, Plaintiff climbed up into a tree. Dkt. No.
81, ¶ 18. On his way up, Plaintiff left the gun in a crook of
the tree below him. Dkt. No. 64, 85:7-14. The dog led
Defendants near the tree where Plaintiff was. Dkt. No. 79, ¶
75. Almost everyone who was there has a different account of
precisely what happened from this point forward. However,
according to the summary judgment standard, this description
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views the facts in the light most favorable to Plaintiff and
credits his testimony.
According to Plaintiff, because Defendants had not yet seen
him, Plaintiff cried out "Hey, I'm up here." Dkt. No. 79, ¶ 76.
Officer Perkins called out to the other officers "He's up in the
tree" and Defendants shined their flashlights onto Plaintiff.
Dkt. No. 79, IS 77-78.
Plaintiff's exact position in the tree was discussed at
length in the depositions. The Complaint alleged that
Plaintiff's feet were "more than four feet off the ground."
Dkt. No. 1, ¶ 40. Discovery has produced various estimates of
how high Plaintiff was off the ground. Most of these estimates
exceed four feet. Dkt. No. 62, 84:21, Dkt. No. 65, 51:20-25.
The highest estimate was given by Plaintiff during his
deposition. Plaintiff testified that he thought his feet were
approximately 11 to 12 feet above the ground. Dkt. No. 64,
117:13-21.
The position of the rifle in the tree is also disputed.
According to Harper, the rifle was out of his reach but was
within reach of Officer Perkins. Dkt. No. 64, 115:1-2.
Defendants have themselves given internally conflicting accounts
of where the rifle was located. During their depositions,
Officers Gourley and Davis testified that Harper was actually
holding the rifle in his hands. Dkt. No. 63, 40:18-25; Dkt. No.
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65, 27:16-25, 28:21-25. However, the reports filed by Officers
Gourley and Davis following the incident did not mention that
Harper was holding the rifle. See Dkt. Nos. 65, 66. At this
juncture, the Court does not need to discern which defense
version should be credited. Rather, at the summary judgment
phase, the Court construes the facts in the light most favorable
to the non-movant. For the purposes of this motion, the Court
will accept Harper's version and assume that the rifle was not
immediately accessible to Harper and, instead, was accessible to
law enforcement.
All the officers started commanding Plaintiff to show his
hands and to come down out of the tree. Dkt. No. 64, 84:1-3.
According to Plaintiff, he already had his hands out and stated
to Defendants "My hands is out [sic]." Dkt. No. 64, 84:5-8.
Defendants however continued to yell for Plaintiff to both show
his hands and come down out of the tree, even though coming down
from the tree would require the use of Plaintiff's hands. Dkt.
No. 64, 84:5-8. Plaintiff testified that, with his hands
showing, he "kept hollering '[m]y hands is out' [sic.]" and said
"I can't do both. My hands is out [sic.]." Dkt. No. 64, 84:917. Plaintiff testified that he said "I surrender. I give up."
Dkt. No. 64, 103:14-15.
After showing his hands, informing Defendants that his
hands were out, and asking for further instructions, Plaintiff
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told Officer Perkins about the gun in the tree. Dkt. No. 64,
85:7-14. Officer Perkins "said 'Do what?'" and Plaintiff said
"There's a gun down there at the tree." Dkt. No. 64, 85:9-12.
Officer Perkins then moved his flashlight off Plaintiff and down
the tree. Dkt. No. 64, 85:11-14. Officer Perkins saw the gun
and then shined his flashlight back on Plaintiff and stated
"'He's got the fucking gun up in the tree with him.'" Dkt. No.
64, 85:13-14.
Officer Gourley deployed his taser, however the taser
either malfunctioned or did not establish a good connection.
Dkt. No. 79, 9191 83-84. Plaintiff fell back against the trunk of
the tree and began slapping the taser wires. Dkt. No. 79, ¶ 85.
Defendants continued to command Plaintiff to show his hands and
come down out of the tree. Officer Davis deployed his taser,
which functioned properly. Dkt. No. 63, 82:17-25. On impact,
Plaintiff fell out of the tree. Dkt. No. 79, ¶ 88. Unable to
break his fall, Plaintiff fell headfirst onto his shoulder.
Dkt. No. 66, 77:4-9. The impact left Plaintiff paralyzed.
The entire incident happened extremely fast. Plaintiff
estimated that from when he first saw Defendants coming into the
woods till the time he was tased was "maybe a minute." Dkt. No.
64, 93:10-11. From the time Plaintiff informed Defendants of
his location up in the tree until the time he was tased was a
matter of seconds. Dkt. No. 64, 93:23, 94:1.
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Previously in this case, all Defendants filed motions to
dismiss. Dkt. Nos. 14, 16. This Court granted those motions in
part, but denied those motions as to the § 1983 claims as to all
Defendants and for the state law claims against Officers
Perkins, Courson, and Davis. Dkt. No. 33. Defendants appealed.
Dkt. No. 46. The Eleventh Circuit affirmed the denial of
qualified immunity. Dkt. No. 46; Harper v. Perkins, 459 F.
App'x 822 (11th Cir. 2012).
Defendants now move for summary judgment on all remaining
claims. See Dkt. Nos. 67, 72.
Xe!W%Zi Y.Yt]
Under Federal Rule of Civil Procedure 56(a), summary
judgment is appropriate "if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." The court must view
the evidence and draw all inferences in the light most favorable
to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144,
157-59 (1970). The party seeking summary judgment must first
identify grounds that show the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24
(1986). To discharge 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. The burden then shifts to
the nonmovant to go beyond the pleadings and present affirmative
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evidence to show that a genuine issue of fact does exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)
DISCUSSION
I. Excessive Force
Viewing the facts in the light most favorable to Plaintiff,
summary judgment is not appropriate for Officers Gourley and
Davis, the officers who actually tased Plaintiff. However, for
Officers Courson and Perkins, summary judgment is warranted.
A. Officers Gourlev and Davis
Discovery uncovered some evidence favorable to Officers
Gourley and Davis; however that is counterbalanced by other
conflicting evidence that weighs in Plaintiff's favor. Under
Plaintiff's version of the facts (which varies greatly from
Defendants' versions), Officers Gourley and Davis violated
Plaintiff's Fourth Amendment rights by using excessive force
against a compliant and nonthreatening suspect.
"The Fourth Amendment's freedom from unreasonable searches
and seizures encompasses the right to be free from excessive
force during the course of a criminal apprehension." Harper,
459 F. App'x at 825. The standard for assessing whether the
level of force in a particular case is excessive "is whether the
officers' actions are 'objectively reasonable' in light of the
facts and circumstances confronting them, without regard to
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their underlying intent or motivation." Graham v. Connor, 490
U.S. 386, 397 (1989)
This inquiry is based on the totality of the circumstances.
However three factors guide whether a particular use of force is
unreasonable. The quantum of force employed is measured against
(1) the severity of the crime at issue, (2) whether the suspect
posed an immediate threat to the safety of the officers or
others, and (3) whether the suspect actively resisted arrest or
attempted to evade arrest by flight. Lee v. Ferraro, 284 F.3d
1188, 1197-98 (11th Cir. 2002) . The officers actions are viewed
"from the perspective of a reasonable officer on the scene,
rather than through the lens of hindsight." Kesinger ex rel.
Estate of Kesinger v. Herrington, 381 F.3d 1243, 1249 (11th Cir.
2004) . "The calculus of reasonableness must embody allowance
for the fact that police officers are often forced to make
split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that
is necessary in a particular situation." Graham, 409 U.S. at
396-97.
The amount of force employed by Officers Gourley and Davis
was substantial. At the motion to dismiss stage, the Eleventh
Circuit rejected Defendants' arguments that a taser constitutes
a moderate, non-lethal level of force and found the use of a
taser against an individual "at least four feet off the ground"
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was "substantial." Harper, 459 F. App'x at 827. Shoving
someone while they are standing on the ground may be minimal
force. Yet, if that exact same shove is employed against
someone on a ladder or standing on the edge of a roof, there is
considerably more risk. Likewise, tasing someone in a tree with
his feet up to twelve feet off the ground is far more serious
than tasing someone on the ground. Plaintiff was in a
precarious position as further evidenced by the fact that his
fall has left him a paraplegic.
1. Severity of the Crime at Issue
After discovery, it is clear that Defendants were called to
the scene as a result of serious offenses committed by
Plaintiff. In considering the case at the dismissal stage, the
Eleventh Circuit noted that it had "little basis to assess" the
severity of the crime at issue because all the Complaint stated
was that Defendants were called as a result of Plaintiff's
"intoxicated behavior" Id. at 826. Discovery, however, has
brought many more details to light. This factor weighs in favor
of Officers Gourley and Davis's use of force. Vinyard v.
Wilson, 311 F.3d 1340, 1347 (11th Cir. 2009) ("Generally, 'more
force is appropriate for a more serious offense and less force
is appropriate for a less serious one.'"). Plaintiff had been
involved in a physical altercation and, while intoxicated, had
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discharged a gun multiple times in an occupied residence. These
are hardly minor infractions.
2. Immediacy of the Threat
Crediting Plaintiff's testimony, as this Court must,
Plaintiff was a minimal threat to law enforcement at the time he
was tased. Plaintiff testified that he was complying with the
request to show his hands and was asking for further
instructions because it was impossible for him to simultaneously
comply with both commands. Even with both hands displayed,
Plaintiff may have posed some threat to law enforcement if the
gun is shown to have been within reach. See Taylor v. Freeman,
447 F. App'x 78, 81 (11th Cir. 2011) (intoxication a factor in
determining threat); Jean-Baptiste v. Guitterez, 672 F.3d 816,
821 (11th Cir. 2010) (even if a suspect does not have his weapon
drawn, the weapon can still be available for use).
At this stage, the exact position of the gun in relation to
where Plaintiff was standing is hotly disputed. Plaintiff
contends both his hands were raised and empty and that he had
abandoned the gun far enough away that he would have had to move
away from his current perch to access it. It was not within his
reach but instead was within reach of law enforcement.
Plaintiff testified that when he informed Officer Perkins of the
rifle's location, Officer Perkins "could have stepped there and
grabbed the gun" to eliminate any threat the gun posed. Dkt.
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No. 54, 115:1-2. Officers Gourley and Davis have themselves
given differing accounts of the location of the rifle. During
their depositions, both officers testified that Harper was
holding the rifle. Dkt. No. 63, 40:18-25; Dkt. No. 65, 27:1625, 28:21-25. However, neither officer included that
information in their reports following the incident. All
parties agree that the gun remained in the tree after the fall.
A jury could find that undisputed fact supports Plaintiff's
version of events rather than Defendants' deposition version
that Harper was holding the gun. It does seem unlikely that
Harper would have had the ability to place the gun in the tree
during his paralyzing fall. Viewing these facts in the light
most favorable to Plaintiff, a jury could find the rifle was out
of Plaintiff's reach and that this fact was apparent to Officers
Gourley and Davis.
Defendants urge that this case is similar to Oakes v.
Anderson, where the Eleventh Circuit held that law enforcement
used reasonable force in shooting a man in his car who was not
suspected of committing any crime. Oakes v. Anderson, 494 F.
App'x 35, 40-41 (11th Cir. 2012) . That case, however, is
readily distinguishable. The decedent in Oakes had "completely
ignored repeated demands to show his hands, then jerked
suddenly." Id. at 39. Plaintiff, in contrast, contends he was
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complying with the officer's demands to the fullest extent
possible and had his hands raised and visible when he was tased.
3. Resistance to Arrest
This factor also weighs heavily in Plaintiff's favor.
According to Plaintiff's testimony, he was making numerous
efforts to comply with law enforcement when he was tased.
According to Plaintiff, he climbed into the tree to avoid
contact with law enforcement, but he did not flee from law
enforcement into the woods. As Defendants had been informed,
Plaintiff left the house prior to law enforcement's arrival.
Dkt. No. 62, 58:6-9. According to Plaintiff, when law
enforcement reached his vicinity, he called to them to identify
his precise location.
Defendants argue, as they did in their motions to dismiss,
that Plaintiff was at least partially non-complaint. Under
Plaintiff's version of events, he was being as compliant as he
possibly could be. He had complied with what he deemed to be
the most important command, to show his hands, he had informed
Defendants that it was impossible for him to comply with both
commands, and had begged Defendants for information on how he
was to proceed. Dkt. No. 64, 84:1-25. Plaintiff and common
sense suggest that it is difficult, if not impossible, for
someone to both show his hands and climb out of tree branches at
the same time. If Defendants had commanded Plaintiff to both
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show his hands and levitate, Plaintiff could not be deemed noncompliant for his failure to do so. Similarly, viewing the
facts in the light most favorable to Plaintiff and taking all
reasonable inferences in his favor, Plaintiff was as compliant
as possible.
Under the facts recounted in Plaintiff's deposition,
Plaintiff would pose less of a threat and was even less
resistant to arrest than under the facts as alleged in
Plaintiff's Complaint and considered in the Eleventh Circuit
opinion. Accordingly, both the second and third factors weigh
heavily against Officers Gourley and Davis. Deploying a taser
on Plaintiff under the circumstances constituted excessive
force.
This Court is not persuaded by Officer Gourley's argument
that he cannot be held liable because it was not his taser
deployment that caused Plaintiff to fall since his taser was
unsuccessful. See Dkt. No. 72. First of all, Officer Davis
testified that he deployed his taser immediately following
Officer Gourley's taser because of Officer Gourley's failed
attempt. Dkt. No. 63, 82-83. Secondly, Officer Davis did not
violate Plaintiff's Fourth Amendment rights solely because his
taser was the immediate cause of Plaintiff's paralysis.
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4. Qualified Immunit
In assessing the motions to dismiss, the Eleventh Circuit
determined that, under the facts as alleged in the Complaint,
the illegality of Defendants' actions was clearly established
under the "obvious clarity" test. Harper, 459 F. App'x at 827.
Qualified immunity offers complete protection for a government
official sued in his individual capacity if: (1) the official
was 'acting within his discretionary authority,' and (2) his
conduct did not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known. Vinyard, 311 F.3d at 1346. In its opinion in this Case
on the motions to dismiss, the Eleventh Circuit stated:
[A]ccepting the complaint's fact as true, we conclude
that the Defendants' conduct was unlawful with
"obvious clarity": They shot a suspect with a taser
gun, which they allegedly knew would incapacitate him,
when the suspect (1) was at least four feet up in a
tree with his hands raised, (2) posed no threat to
their safety or the safety of others, (3) had no
chance, and did not attempt, to flee, and (4) merely
put his hands in the air in compliance with the
instructions of at least one officer.
Harper, 459 F. App'x at 827. In opposition to summary judgment,
Plaintiff has now presented evidence that would permit a jury to
find all four of those facts to be true. Accordingly, Officers
Davis and Gourley are not entitled to qualified immunity because
it was clearly established under the "obvious clarity" test that
their conduct was unlawful.
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Even absent "obvious clarity," case law clearly established
that the use of substantial force, under Plaintiff's version of
events, as a constitutional violation. Several cases decided
prior to May 2008 held that a police officer used excessive
force by hitting a suspect who was complying with officer
commands and not resisting arrest. Lee, 284 F.3d at 1198 (11th
Cir. 2002) (holding police used excessive force in slamming
suspect's head down on trunk of car where suspect was already
secured in handcuffs and was not attempting to flee or resist);
Slicker v. Jackson, 215 F.3d 1225, 1233 (11th Cir. 2000)
(holding police used excessive force in severely beating
handcuffed individual who did not resist, struggle or attempt to
flee); Priester v. City of Riviera Beach, Fla, 208 F.3d 919,
923-25 (11th Cir. 2000) (jury could find excessive force when
officers ordered dog to attack suspect who was accused of
stealing $20 worth of snacks, stood up in his hiding place,
placed hands in air, and complied with officer's first command).
B. Officers Courson and Perkins
Unlike their co-defendants, Officers Courson and Perkins,
did not personally tase Plaintiff. Officers Courson and Perkins
are entitled to summary judgment. Plaintiff argues that
Officers Courson and Perkins are liable for failing to intervene
to stop the tasings. Dkt. No. 77 at 10-11.
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"An officer can be liable for failing to intervene when
another officer uses excessive force." Priester, 208 F.3d at
924. "The liability, however, only arises when the officer is
in a position to intervene and fails to do so." Id. Plaintiff
admits that "[i]t is likely that Perkins and Courson could not
stop Gourley from firing his taser." Dkt. No. 77 at 11. That
is an understandable concession by Plaintiff given that,
according to Plaintiff, Officer Gourley tasered him within
seconds after discovering Plaintiff's location. It is
undisputed that no one ordered Officer Gourley to tase Plaintiff
and Officer Gourley did so on his own accord. Plaintiff seems
to complain that neither Officer Courson nor Perkins
affirmatively told the other officers not to use their tasers.
However, announcing the precise level of force to use in a
suspect's presence would severely undermine police tactics.
Thus, this Court holds that Officers Perkins and Courson had no
opportunity to intervene prior to Officer Gourley's taser use.
Officers Courson and Perkins also had no opportunity to
intervene prior to Officer Davis's deployment of the taser.
According to Plaintiff's own testimony, the second taser firing
occurred "[ijmmediately" following the first. Dkt. No. 64,
95:23-25, 96:1.
"[The] duty to read the record in the
nonmovant's favor stops short of not crediting the nonmovant's
testimony in whole or part . . . ." Evans v Stephens, 407 F.3d
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1272, 1278 (11th Cir. 2005) (en banc). Plaintiff's testimony
establishes the lack of opportunity to intervene prior to
Officer Davis's taser deployment. Accordingly, summary judgment
in favor of Officers Courson and Perkins on the § 1983 claim is
appropriate.
II. State Law Claims
In this Court's prior order, the state law claims against
Officer Gourley, a state employee, were dismissed pursuant to
the Georgia Torts Claims Act. See Dkt. No. 33. The state law
claims against the other Defendants remained pending.
In Georgia, county law enforcement officers are entitled to
official immunity for discretionary actions done without
willfulness, malice, or corruption. Taylor v. Waldo, 709 S.E.2d
278, 278 (Ga. Ct. App. 2011). Plaintiff has not contested that
Defendants' actions in this case were discretionary. To lose
the protection of official immunity, a defendant must have acted
with "actual malice," which requires a "deliberate intention to
do wrong." Phillips v. Hanse, 637 S.E.2d 11, 13 (Ga. 2006).
Discovery has not produced any evidence that any of these
three officers acted with a deliberate intention to do wrong.
Neither Officer Perkins nor Officer Courson directed anyone to
tase Plaintiff. Nor did they personally tase Plaintiff.
Undisputedly, Plaintiff did not know or have any interaction
with any of the defendants prior to Memorial Day 2008. Dkt. No.
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79, ¶ 92. In his deposition, Plaintiff suggested that, after
the fall while Plaintiff was lying on the ground, Officer
Perkins made insensitive and unprofessional comments. Officer
Perkins supposedly stated "You're lucky I didn't stomp your
fucking head in." Dkt. No. 64, 196:11-13. Absent any
involvement in the actual tasing, that comment alone is
insufficient to allow Plaintiff to proceed on a state law
battery claim.
There is also no evidence that Officer Davis, who did tase
Plaintiff, acted with a deliberate intention to do wrong.
Officer Davis had never interacted with Plaintiff prior to that
night and he did not make any remarks that night from which a
jury might infer malice. Officer Davis tased Plaintiff in
response to Officer Gourley's failed attempt. During the
Motions Hearing, Plaintiff argued that a jury could infer
deliberate intention to do wrong from the fact that, since that
night, Officer Davis has given varying accounts of the incident.
While such evidence might suggest that Officer Davis has
attempted post-hoc to justify his actions, that is not evidence
relating to whether on Memorial Day 2008, Officer Davis
deliberately intended to do wrong and acted with actual malice
in tasing Plaintiff. Accordingly, judgment of a matter of law
is appropriate on all of Plaintiff's remaining state law claims.
AO 72A
(Rev. 8/82)
1
21
CONCLUSION
Based on the foregoing, Defendants' Motions for Summary
Judgment, Dkt. Nos. 67, 72, are GRANTED in part and DENIED in
part. Disputed issues of material fact exist as to Plaintiff's
§ 1983 claim against Officers Gourley and Davis. Summary
judgment on those claims is not warranted. However, Officers
Courson and Perkins are entitled to summary judgment on the
federal claims pending against them. Additionally, judgment is
appropriate for Officers Courson, Perkins, and Davis on the
remaining state law claims.
SO ORDERED,
this 17th day of June, 2013.
LISA GODBEY 00OD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
AO 72A
(Rev. 8/82)
1
22
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