Sheppard et al v. Pierce County, Georgia et al
Filing
58
ORDER granting in part as to Defendants City of Blackshear, Etheridge, Carter, and Boyette Electric and denying in part issues of material fact as to Defendants Britt, Gourley, Wright, and Boyette's § 1983 liability re 35 , 37 and 39 Motions for Summary Judgment. Signed by Chief Judge Lisa G. Wood on 1/22/2015. (ca)
N the Enitieb Statto Jitritt Court
for the boutbern flitrut of georgia
Waptroma Atbiofon
TORRENCE SHEPPARD and DEVONTRAY
MYERS,
Plaintiffs,
CV 512-136
V
.
CITY OF BLACKSHEAR, GA.,
BOYETTE ELECTRIC, INC., CARL I.
BOYETTE, LARRY T. ETHERIDGE,
KEVIN BRITT, MATT GOURLEY,
CHRIS CARTER, and CHRIS WRIGHT,
in their individual capacities,
Defendants.
I*) 'q-01-40
Plaintiffs Torrence Sheppard and Devontray Myers claim
police officers and a private citizen brutalized them when they
were arrested during the commission of a theft. Plaintiffs bring
excessive force claims under 42 U.S.C. § 1983 against several of
the officers, including Ware County Search Team members Kevin
Britt and Matt Gourley in their individual capacities. Other
officer-Defendants include Blackshear Police Department Chief of
Police Lawrence T. Etheridge, Chief Detective Chris Wright, and
Detective Chris Carter, in their individual capacities, along
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with their municipality, the City of Blackshear, Georgia.
Finally, Plaintiffs also bring excessive force claims against a
private citizen, Carl Boyette, and the company he owns, Boyette
Electric, Inc. All Defendants have filed motions for summary
judgment. See Dkt. nos. 35-1; 37-1; 39-1.
Plaintiffs have conceded that Defendants City of
Blackshear, Etheridge, Carter, and Boyette Electric are entitled
to summary judgment, and those Defendants' motions are GRANTED.
However, because issues of material fact remain as to Defendants
Britt, Gourley, Wright, and Boyette's § 1983 liability, their
motions for summary judgment are DENIED.
ALLEGED FACTS
While many of the following facts are contested, the Court
considers the record in a light most favorable to the Plaintiffs
for summary judgment purposes. Johnson v. Booker T. Washington
Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000).
Plaintiffs Torrence Sheppard and Devontray Myers are
stepfather and stepson, respectively. Dkt. no. 35-7 ("Myers
Dep."), 8:17-19. On three occasions between November 16 and
November 20, 2010, the two men set out to steal copper wire from
Defendant Boyette Electric, Inc. Id. at 31:11-23; Dkt. no. 35-6
("Sheppard Dep."), 32:11-18. The third theft occurred on
November 20, 2010, and that night Plaintiffs and a third party
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drove to Boyette Electric's property.' Myers Dep. 36:10-20.
Plaintiffs and the third party left their truck parked on a dirt
road behind Boyette Electric and walked through a wooded area
before reaching a fence surrounding the property. Id. at 41:542:1; Sheppard Dep. 38:6-16, 39:12-17.
Before they could enter the facility to steal copper wire,
an alarm at the fence was triggered and Plaintiffs retreated
back through the woods towards the truck. Myers Dep. 42:12-43:4;
Sheppard Dep. 40:20-22. However, before reaching the truck,
Plaintiffs noticed approaching police lights. They lay down in
the woods, about 20 yards from one another, hoping to avoid
detection. Myers Dep. 44:17-45:1, 46:10-12; Sheppard Dep. 43:944 : 6. 2
After the alarm was triggered, the alarm company contacted
Defendant Carl Boyette, owner of Boyette Electric, and the
police to notify them of a possible break-in. Dkt. no. 43-3
("Boyette Dep."), 13:19-14:16. Boyette and law enforcement
officers from the Blackshear Police Department and Pierce County
Sheriff's Office went to the scene of the break-in, and the
officers formed a perimeter around the wooded area where
Plaintiffs were hiding. Sheppard Dep. 46:6-17. Defendant Chris
This third party, while present during the underlying events, is not a party
to this case.
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While Myers says that Plaintiffs never made it to the truck before lying
down to hide, Sheppard deposed that the trio was already in the truck before
they saw the lights, jumped out of the truck, and ran back into the woods.
This discrepancy is not relevant to the summary judgment analysis, and either
version of this episode, taken as true, would yield the same result.
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Wright, Chief Detective for the City of Blackshear Police
Department, headed the investigation that led to Plaintiffs'
arrests. Dkt. no. 43-5 ("Wright Dep."), 66:13-17.
Wright enlisted the help of the Ware County Search Team and
their tracking dog in searching for the Plaintiffs. Id. at 32:234:24. This two-man team consisted of Defendants Matt Gourley
and Kevin Britt. Id. at 34:22-24; Dkt. no. 43-7 ("Britt Dep."),
7:17-25. Wright called Britt to assist with the search because
law enforcement agencies will frequently share searching
"assets," such as canine tracking teams, amongst themselves. Id.
at 33:15-22. Britt recalls that he was asleep at home when he
was called to help with the search for Plaintiffs, while Gourley
says he was not yet in bed when Britt called to tell him about
the search. Britt Dep. 13:5-7; Gourley Dep. 10:25-11:6. Both
Britt and Gourley claim that they were the only individuals who
entered the woods to apprehend Plaintiffs. Britt Dep. 46:1-6;
Gourley Dep. 14:16-15:12.
Britt and Gourley found Sheppard first. Britt Dep. 17:1114. For their part, Britt and Gourley claim that Britt placed
Sheppard under arrest by placing his knee in Sheppard's back and
then handcuffing him before lifting him up off of the ground.
Id. at 28:3-11. Britt says that he asked Sheppard who else was
in the woods and that he was the only one to touch Sheppard
while they were in the woods. Id. at 24:10-23; 23:6-18. Britt
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then escorted Sheppard out of the woods, where he and other
officers led Sheppard to a vehicle. Id. at 19:25-20:24.
Plaintiff Sheppard tells a different version of his
encounter with the Ware County Search Team. He says the Ware
County Search Team found him after the search dog came up to him
and licked his face. Sheppard Dep. 53:7-9. While stating that he
does not know for sure, he estimates that the search party that
apprehended him included five or six men. Id. at 51:13-19. After
he was placed in handcuffs, Sheppard says a "big, big fella with
a striped shirt" kicked him in the face. Id. at 53:25-54:6. One
of the men who arrested him said "Well, you mean to tell me they
woke me out of my bed to come search for your nigger ass?"
before kicking him in the face. Sheppard Dep. at 50:1-3. The
same person repeatedly kicked him in the head several times
while he was on the ground. Sheppard Dep. 53:19-21. The man
kicking Sheppard asked him "Who else is out here?", and when
Sheppard said "Nobody", the man said, "You lying motherfucker,"
and continued kicking him in the head until he was "out of it"
and no longer responding to questions. Id. at 54:19-55:2.
Sheppard cannot specifically identify who it was that
kicked him in the face, but he says it was a "heavyset, kind of
tall guy with a striped shirt" who appeared to be leading the
search team. Id. at 58:14-24. When asked later in his deposition
to provide a height and weight estimate, Sheppard estimated that
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this individual weighed 260 pounds and was "kind of" the same
height as a man present at the deposition who stated for the
record that he was six feet, two inches tall. Id. at 89:16-24.
Also, when asked what color the stripes were on the assailant's
shirt, Sheppard said they "might have been blue and white
stripes." Id. at 89:8-12.
Myers watched from his hiding spot as his stepfather was
beaten. While he could not see specific details in the darkness,
he says he heard the search team—Myers estimates four to five
people—beating his stepfather and asking him "Who else is in the
woods with you," and his stepfather responding "Nobody. Nobody.
Nobody else is in the woods with us." Myers Dep. 49:13-24;
50:11-12. Myers says "you could tell they had him in handcuffs,
and when they was hitting on him they were just repeatedly
steadily hitting on him trying to get him to tell them who else
was out there in the woods." Id. at 50:19-23. All the while,
Myers heard Sheppard yelling "Why are y'all beating me?" Id. at
51: 4-6.
After the beating, the assailants picked Sheppard up by his
handcuffs and pant legs, "like a suitcase," and carried him out
of the woods to Wright's van. Id. at 50:6-8; 55:10-17. Sheppard
says that when he first came out of the woods, Wright saw that
he was injured and that his face was bleeding and "deformed."
Id. at 63:21-64:3. When Sheppard and Wright were standing in
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front of the van, Boyette approached Sheppard while he was being
held by Wright. Id. at 56:23-25. Wright asked Boyette, "Is this
the one?", and Boyette said "Hold up his shoes." Id. at 57:2-25.
Boyette inspected Sheppard's shoes and said Sheppard was not
"the one." Id. Boyette then said to Sheppard, "You are lucky you
weren't out here last night, because I was waiting on you to
blow your motherfucking head off." Id. Then, while Wright was,
according to Sheppard, intentionally holding Sheppard so that he
could not move, Boyette hit Sheppard in the face with his
flashlight. Id. Sheppard asked Wright, "Man, why are y'all
beating me like that?" To which Wright replied, "I didn't do it.
Ware County State Search Team did it to you." Id. At this point,
Sheppard was "bleeding all over" Wright's vehicle and blood was
coming out of his nose and mouth from the beating earlier in the
woods. Id. at 63:21-64:23. Wright recalls that Sheppard
complained of Britt and Gourley "roughing them up" in the woods
the night he was arrested. Wright Dep. 50:6-11.
Soon after Sheppard was taken out of the woods, the search
team returned and located Myers. As with Sheppard, Britt and
Gourley claim they were the only two individuals with Myers when
he was apprehended. Britt Dep. 29:14-33:15. Myers did not resist
arrest. Britt Dep. 29:20-22.
The search dog first found Myers and then alerted his
presence to the search team. Myers Dep. 53:1-15. Myers estimates
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three or four people came to arrest him, although he cannot say
for sure because he was face down on his stomach when they found
him. Id. at 52:3-5; 53:18-20. When Myers realized he had been
located, he says he "just was hoping that they weren't going to
beat [him] like they beat [his] stepdaddy." Myers Dep. 53:2154:2. However, as soon as he was handcuffed, Myers says "they
just went to beating me off the top, [and] started calling me
racial slurs." Id. at 54:4-7. The beating lasted approximately
two or three minutes, and his attackers hit him with their fists
on his face, his nose, and the back of his head. Id. at 56:4-11.
At one point, Myers temporarily lost consciousness. Id. at
56: 13-16.
While they were beating him, Myers says his assailants
pulled the hoodie he was wearing and wrapped it around his head
so he could not see what was going on around him. However, Myers
was able to catch a glimpse through his hoodie of his attacker
and noticed that this man was wearing a red collared shirt. Id.
at 110:14-16. Also, Myers says that he could hear one distinct
voice that he will recognize for the rest of his life, and he
states that he has "to live with every day, hearing the same
voice in [his] head over and over." Id. at 98:1-4. That voice
was saying "Are you going to steal from us? We are going to
teach you about stealing from us." Id. at 52:3-15. Myers says
"[t]hey just kept repeatedly hitting me and grabbed my hoodie
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and put it around my head while they were chocking [sic] me and
beating me." Id. All he said he could see were red, black, and
white collared shirts. Id.
Myers was then walked out of the woods. Once in the
opening, he saw Boyette, who appeared to be waiting for him. Id.
at 110:8-10. Myers initially noticed that Boyette was wearing a
red collared shirt. Id. at 58:15-20. Myers asked Boyette "Why
did y'all beat us? Why did the police beat us?" Boyette told
him, "Well, you are lucky I didn't catch you on my place last
night because I would have blew your brains out." Id. at 58:2125. Upon seeing Boyette in the red collared shirt and hearing
his voice again, Myers says he is about 75 percent sure that the
person beating him in the woods was Boyette. Id. at 109:21110:16. Myers recalled, "the dude in the red collar stripe shirt
was a civilian. I can't exactly say that was Carl Boyette's
shirt, but he was the only person in the woods with the red
collared shirt on, you know, and a voice that sounded the same."
Id. at 112:13-18. After Myers was brought out of the woods, he
was placed in a police car with his stepfather. Id. at 66:2-3.
Myers says he was bleeding from his nose and cuts on his face as
the car transported them to the Pierce County Police Department.
Id. at 66:22-67:7.
Later, when asked if he ever spoke to Wright about the
beatings, Myers said that he had asked Wright "Why did they beat
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me?", but Wright "didn't have anything to say about it." Id. at
111:12-13. Then, in his own words, Myers summed up his and his
stepfather's grievances:
I feel like why—if they did have another person out
there beating me, and y'all are supposed to be socalled police officers, then that shouldn't take place
out there. Y'all should have stopped that before it
even happened, you know, or shouldn't have no other
civilians out there in the woods with us while y'all
are out there doing y'all's job. That is not his job.
That's y'all's job to find us. That is why I feel
like, you know, they was in the wrong. . . . They did
not do their job like they were supposed to.
Id. at 111:15-112:4.
PROCEDURAL BACKGROUND
At a motions hearing on November 14, 2014, Plaintiffs
conceded that summary judgment should be granted as to several
Defendants, including Defendants Etheridge, City of Blackshear,
Georgia, Boyette Electric, Inc., and Carter. The Court GRANTS
summary judgment as to these Defendants.
Thus, Plaintiffs only contest the motions for summary
judgment filed on behalf of Defendants Britt, Gourley, Wright,
and Boyette. The Court will consider each of these motions in
turn.
LEGAL STANDARD
Summary judgment is required where "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
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P. 56(a). A fact is "material" if it "might affect the outcome
of the suit under the governing law." FindWhat Investor Grp. v.
FindWhat.com , 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A
dispute over such a fact is "genuine" if the "evidence is such
that a reasonable jury could return a verdict for the nonmoving
party." Id. In making this determination, the court is to view
all of the evidence in the light most favorable to the nonmoving
party and draw all reasonable inferences in that party's favor.
Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d
501, 507 (11th Cir. 2000). However, where the nonmovant's own
sworn testimony contradicts the more favorable testimony of
another witness, the court must accept the nonmovant's version
of the events. Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir.
2005)
The party seeking summary judgment bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . To
satisfy this burden, the movant must show the court that there
is an absence of evidence to support the nonmoving party's case.
Id. at 325. If the moving party discharges this burden, the
burden shifts to the nonmovant to go beyond the pleadings and
present affirmative evidence to show that a genuine issue of
fact does exist. Anderson, 477 U.S. at 257.
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ANALYSIS
I. Excessive Force Claims Against the Law Enforcement Officers
Plaintiffs bring excessive force claims against Officers
Britt and Gourley under two theories: (a) excessive force, and
(b) failure to intervene when excessive force was used in their
presence. They also bring an excessive force claim against
Wright. The three officers assert the qualified immunity
defense.
a. Section 1983 Qualified Immunity and Excessive Force
Qualified immunity "offers complete protection for
government officials sued in their individual capacities as long
as their conduct violates no clearly established statutory or
constitutional rights of which a reasonable person would have
known." Bashir v. Rockdale Cnty., 445 F.3d 1323, 1327 (11th Cir.
2006) (quotations omitted) . The defense protects "all but the
plainly incompetent or one who is knowingly violating the
federal law." Id. (quoting Malley v. Briggs, 475 U.S. 335, 341
nhI
To overcome a defendant's privilege of qualified immunity,
a plaintiff must show "(1) that the officer violated her federal
constitutional or statutory rights, and (2) that those rights
were clearly established at the time the officer acted." Douglas
Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1273 (11th Cir. 2008)
(quoting Wilson v. Layne, 526 U.S. 603, 609 (1999)). Courts need
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not analyze these prongs in that sequential order, but may
"exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed
first in light of the circumstances in the particular case at
hand." Pearson v. Callahan, 555 U.S. 223, 236 (2009). In
analyzing qualified immunity questions at summary judgment,
courts must approach the facts as they would for any other issue
on summary judgment—that is, in a light most favorable to the
nonmovant. See Tolan v. Cotton, 134 S. Ct. 186, 1865-66 (2014)
Where an excessive force claim arises in the context of an
arrest of a free citizen, that claim invokes the protections of
the Fourth Amendment, which guarantees citizens the right "to be
secure in their persons . - . against unreasonable
seizures." Graham v. Connor, 490 U.S. 386, 394 (1989) . Whether a
constitutional violation arises from the use of force during an
arrest is determined by the Fourth Amendment's "objective
reasonableness" standard. Hadley v. Gutierrez, 526 F.3d 1324,
1329 (11th Cir. 2008) . In applying this standard, courts may
consider "(1) the need for the application of force, (2) the
relationship between the need and the amount of force used, (3)
the extent of the injury inflicted and, (4) whether the force
was applied in good faith or maliciously and sadistically." Id.
(quoting Slicker v. Jackson, 215 F.3d 1225, 1233) (11th Cir.
2000))
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The Eleventh Circuit has concluded that its decisions
regarding the use of excessive force "establish that unprovoked
force against a non-hostile and non-violent suspect who has not
disobeyed instructions violates that suspect's rights under the
Fourth Amendment." Fils v. City of Aventura, 647 F3d 1272, 1289
(11th Cir. 2011) . For example, in Hadley, two officers were
present when the plaintiff was arrested. Id. at 1330. The
district court found that one officer punched the plaintiff in
the stomach while he was handcuffed and not struggling or
resisting arrest. Id. The Court of Appeals affirmed the district
court's denial of qualified immunity for this officer because
his "single punch constituted excessive force" under these
circumstances. Id.
However, while a single punch alone is enough to establish
the unconstitutional use of excessive force in some
circumstances, it may not be enough to establish that other
officers present during the assault failed to intervene. For
example, the court in Hadley also held that the second officer,
who was present when the first officer delivered the single blow
to the plaintiff's stomach, did not commit a constitutional
violation. Id. While noting that "[a]n officer who is present at
the scene and who fails to take reasonable steps to protect the
victim of another officer's use of excessive force . . . can be
held liable for his nonfeasance," the court held that "it must
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also be true that the non-intervening officer was in a position
to intervene yet failed to do so." Id. (quoting Velazquez v.
City of Hialeah, 484 F.3d 1340, 1341 (11th Cir. 2007); Priester
v. City of Riviera Beach, 208 F.3d 919, 924 (11th Cir. 2000)).
Because the district court did not find that the second officer
could have prevented the first from punching the plaintiff, the
Court of Appeals held that it erred in denying the second
officer qualified immunity. Id.; cf. Priester, 208 F.3d at 925
(denying qualified immunity where an officer failed to intervene
when he watched a police dog attack plaintiff for two minutes
without attempting to restrain the dog).
In the Eleventh Circuit, for the law to be "clearly
established" such that a plaintiff can overcome the qualified
immunity defense, "the law must have earlier been developed in
such a concrete and factually defined context to make it obvious
to all reasonable government actors, in the defendant's place,
that what he is doing violates federal law." Jenkins by Hall v.
Talladega City Bd. of Educ., 115 F.3d 821, 823 (11th Cir. 1997)
(quotations omitted). However, where there are no Fourth
Amendment cases on point showing that a particular course of
police conduct is clearly unconstitutional, the plaintiff must
show that the defendant's "conduct was so far beyond the hazy
border between excessive and acceptable force that [the
defendant] had to know he was violating the Constitution even
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without caselaw on point." Smith v. Mattox, 127 F.3d 1416, 1419
(11th Cir. 1997)
b. Defendants Kevin Britt and Matt Gourley
Plaintiffs have alleged that Britt and Gourley used
excessive force in arresting them either by unnecessarily
assaulting them after they were in handcuffs and not resisting
arrest, or by failing to intervene when another officer or
citizen was assaulting them.
There is ample evidence in the record from which a jury
could find that both Britt and Gourley used excessive force
either by attacking the Plaintiffs or by failing to intervene.
Sheppard says he was handcuffed and did not resist arrest before
his attacker complained about having to get out of bed to search
for him and kicked him in the head several times. He also
testified that the man kicking him appeared to be the leader of
the search team. These allegations, along with Britt's admission
that he was already in bed when he was summoned to lead the
search, would support a jury's finding that Britt was the
officer who used excessive force against Sheppard as he lay
handcuffed on the ground, not resisting arrest.
Furthermore, regardless of how many officers were present
in the woods when Sheppard and Myers were attacked, Britt and
Gourley both admit that they were immediately present in the
woods when each Plaintiff was apprehended. Sheppard says he was
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kicked several times in the head, and Myers says his attack
continued for two or three minutes. Under these circumstances,
any officer who was present during the attacks would have had
time and opportunity to intervene. Because Britt and Gourley
both claim they were present during the entirety of both
Plaintiffs' arrests, each officer could be said to have failed
to intervene to the extent that he did not actively participate
in the beatings.
Britt and Gourley argue that, despite their own testimony
that they were the only two people in the woods when Plaintiffs
were apprehended, the Court must credit Plaintiffs' testimonies
that multiple other individuals were in the woods as well when
considering the facts for summary judgment purposes. See Dkt.
no. 57. While Britt and Gourley are correct that the Court must
credit Plaintiffs' versions of the events when they contradict
other witnesses' testimonies, see Evans, 407 F.3d at 1278,
Plaintiffs' versions, taken as true, do not require summary
adjudication for these two Defendants. As discussed above,
Sheppard offered several salient details in his testimony
suggesting that Britt was the officer who attacked him.
Furthermore, even assuming multiple other persons were in the
woods with Defendants when they apprehended Plaintiffs, nothing
in Plaintiffs' testimonies contradicts Defendants' testimonies
that they were immediately present from the time Plaintiffs were
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arrested to the time they exited the woods. Thus, if the
evidence available upon summary judgment consideration does not
show that either of these Defendants assaulted Plaintiffs, it
still shows that they failed to intervene during the allegedly
prolonged beatings in the woods.
Britt and Gourley also argue that Plaintiffs' complicated
identifications of their attackers require summary judgment. In
his deposition, Sheppard said the man kicking him was a "big,"
"heavyset," and "tall" man, weighing "approximately" 260 pounds,
and about as tall as a man present in the deposition room who
claimed to be six feet two inches tall. Sheppard also said his
attacker may have been wearing a blue and white striped shirt.
For his part, Myers says he was attacked by someone who said:
"Are you going to steal from us?", whom he later identified as
Boyette.
Defendants argue that Britt is five feet eleven inches
tall, weighing 190 pounds, and Gourley is five feet nine inches
tall, weighing 185 pounds. Dkt. no. 39-5, ¶I 3-4. Also, they
claim to have worn camouflage during the search, and not striped
shirts. Id. at ¶ 5. Finally, they claim that Myers's version of
the events can only be interpreted to mean that his victim,
Boyette, attacked him, and not the arresting officers.
These facts, though, even if uncontroverted and taken as
true, do not require summary judgment in this case. Sheppard
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never stated that the identifying characteristics he offered
were precise, but rather said they were approximations. And
again, nothing about Plaintiffs' versions of the events
contradicts these Defendants' own testimonies that they were
consistently present with the Plaintiffs from the moment they
were arrested to the moment they left the woods. Even if Britt
and Gourley never touched either Plaintiff, all of the evidence
shows that they were present in the woods when the beatings
occurred, and they can thus be found to have failed to intervene
in the use of excessive force.
It is clearly established in the Eleventh Circuit that both
of the actions discussed above—use of excessive force and
failure to intervene—violate the Constitution in these
circumstances. The Eleventh Circuit has long held that a
handcuffed, non-resisting defendant has a right to be free from
excessive force. See, e.g., Lee v. Ferraro, 284 F.3d 1188, 1199
(11th Cir. 2002) (denying qualified immunity to defendant who
slammed plaintiff's head into the back of a police car after she
"was arrested, handcuffed, and completely secured, and after any
danger to the arresting officer as well as any risk of flight
had passed."); Slicker, 215 F.3d at 1227 (denying qualified
immunity to defendant who slammed plaintiff's head into pavement
and kicked him in the leg, head, and back after he was
handcuffed and fully secured); Priester, 208 F.3d at 926-27
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(denying qualified immunity to officer who allowed police dog to
attack arrestee who was subdued on the ground for two to three
minutes); Smith, 127 F.3d at 1418-1420 (11th Cir. 1997) (denying
qualified immunity to officer who broke arm of individual who
"docilely submitted" to officer's request to "get down").
Similarly, it is well-established in the Eleventh Circuit
that "[if a police officer, whether supervisory or not, fails
or refuses to intervene when a constitutional violation such as
an unprovoked beating takes place in his presence, the officer
is directly liable under Section 1983." Byrd v. Clark, 783 F.2d
1002, 1007 (11th Cir. 1986) (abrogation on other grounds
recognized by Noun v. Isbell, 207 F.3d 1253 (11th Cir. 2000));
see also Baily v. City of Miami Beach, 476 F. App'x 193, 196-97
(11th Cir. 2012) (no qualified immunity for officer who watched
for two or three minutes while two of his fellow officers
"attacked" plaintiff); Priester, 208 F.3d at 927-28 (noting that
a police officer's duty to intervene when he witnessed the use
of excessive force and had the ability to intervene was clearly
established in February 1994, as determined in Byrd, 783 F.2d
1002)
Thus, the evidence considered in a light most favorable to
the Plaintiffs could support a jury's finding that Defendants
Britt and Gourley used excessive force against Plaintiffs,
either by directly assaulting them or failing to intervene in
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the assault. The law on excessive force and intervention is
clearly established in these circumstances, and Defendants are
not entitled to judgment as a matter of law based on qualified
immunity. Defendants Britt and Gourley's motion for summary
judgment (Dkt. no. 39-1) is DENIED.
c. Defendant Chris Wright
Plaintiff Sheppard brings two theories of excessive force
against Defendant Wright. First, Sheppard claims that Wright
failed to intervene in the beating that took place in the woods.
Second, Sheppard claims that Wright either actively participated
in the use of excessive force against him when Boyette struck
him in the face with a flashlight or, alternatively, failed to
intervene in that assault.
i. Wright's Failure to Intervene in the Assault in
the Woods
Sheppard alleges that Wright, while he was outside of the
wooded area, knew of the beating that was taking place in the
woods, but failed to intervene. When Sheppard was escorted out
of the woods, he says Wright saw that he was bleeding from his
face and that his face was "deformed." Sheppard argues that
because he asked Wright why he let the officers beat him and
Wright responded "I didn't do that, Ware State Prison team did
that," "[t]he inference is that Chris Wright knew what had
happened." Dkt. no. 56, p. 20.
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The evidence of Wright's contemporary knowledge of the
assault taking place in the woods is too speculative to create
an issue of fact as to his willful failure to intervene in that
assault. Wright's alleged statement that "the Ware County Search
Team" assaulted Sheppard came after Wright saw Sheppard escorted
out of the woods bloodied and beaten, by Sheppard's own account.
Furthermore, Sheppard's own reply brief to Wright's motion for
summary judgment argues that his knowledge of the assault came
after Plaintiff left the woods, upon answering Sheppard's
questions about the assault. Plaintiff argues that
Defendant Wright was very aware of the beating
Plaintiff received in the [w]oods as soon as Plaintiff
was brought out of the woods. Plaintiff Sheppard asked
him about the beating and was given a direct answer:
"I didn't do it. Ware County State Search Team did it
to you." . . . Defendant Wright recalls Plaintiff
Sheppard complaining about being roughed up in the
woods.
Dkt. no. 41-2, p. 5 (citations to the record omitted) (emphasis
added). Sheppard later tries to recharacterize this evidence as
proof that "Chris Wright at least knew about the beating of
Plaintiff Sheppard in the woods contemporaneously with the
beating," Id. at p. 6, but Plaintiff has pointed to no evidence
in the record suggesting that Wright knew of the beating as it
was occurring rather than after it had already ended. If Wright
did not know of the beating in the woods as it was happening,
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then he would not have been in a position to intervene. 3 Thus,
there is not sufficient evidence in the record to support a
finding that Wright committed a constitutional violation by
failing to intervene in Sheppard's assault in the woods.
ii. Wright's Liability for the Boyette Incident
Sheppard also contends that Wright participated in the use
of excessive force when Boyette allegedly struck Sheppard in the
face with a flashlight. 4 Specifically, Sheppard alleges that
after Wright asked Boyette to inspect Sheppard's shoes, Boyette
said:
"You are lucky you weren't out here last night,
because I was waiting on you to blow you motherfucking
head off." . . . Then he hit me with the flashlight,
pow. I was like, damn, Chris [Wright], you are sitting
up here letting this [stuff] happen. I am saying that
in my mind first. I asked Chris, "Man, why are y'all
beating me like that?" He said, "I didn't do it. Ware
County State Search Team did it to you." Chris was
there when Boyette hit me in my face. He was standing
right there and was holding me, kind of holding me
together so I won't move or something. It seemed like
he let him do that, you know what I am saying? He
could have said hold it, wait a minute. We got him now
so let's detain him and put him in the car and go to
the county, whatever. They didn't do none of that.
They stood there and harassed me and did what they did
and that's when they took me to the county.
That is not to say that Wright would have been in a position to intervene as
a matter of law had he known contemporaneously of the assault taking place in
the woods. That determination would depend on further analysis of the
circumstances, such as his physical proximity to the assault and the extent
to which he knew the assault was unconstitutionally excessive. However, the
Court need not consider these questions having already determined that the
evidence in the record would not support a finding that he even knew an
assault was happening.
Plaintiff Shepard has disclaimed any potential allegation that Wright is
liable for failing to intervene when Boyette struck him with the flashlight.
Dkt. no. 60, p. 17.
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Sheppard Dep. 57:2-25. Sheppard also alleged that Wright saw him
walk out of the woods with visible injuries.
If Sheppard is correct that Wright intentionally held him
so that Boyette could strike him in the face with a flashlight,
this would certainly be an unconstitutional use of excessive
force under the Fourth Amendment's four-factor "objective
reasonableness" test enumerated in Hadley, 526 F.3d at 1329.
First, there would be no need for the use of force from any
party—private citizen or police officer—against a compliant,
non-resisting, handcuffed arrestee. Second, while a de minimis
amount of force may be necessary to handle or escort a
handcuffed suspect away from a crime scene, holding the suspect
still so that someone else can strike him in the face with a
flashlight is plainly excessive under the circumstances. Third,
the extent of the injury is substantial—while Sheppard may not
be able to prove that the blow to the face caused injuries
distinguishable from those he incurred during the beating in the
woods, the pain and indignity of such a strike alone would be an
unjustifiable injury. Finally, the circumstances, as told by
Sheppard, plainly show that the force was not applied in good
faith, but was rather applied "maliciously and sadistically."
See id.
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Additionally, assuming Wright actively participated in
Boyette's assault on Sheppard, it is clear that such conduct
violates the Constitution. Parties have not cited any cases
discussing an officer's alleged use of excessive force
specifically by facilitating a private citizen's assault on a
detained suspect, and this Court is aware of none. However, as
stated above, in the Eleventh Circuit it is well-established
that a handcuffed, non-resisting arrestee has a right to be free
from excessive force from police officers. See discussion supra.
On the spectrum of constitutional police conduct, facilitating a
citizen assault on a handcuffed suspect is undoubtedly further
beyond the "hazy border between excessive and acceptable force"
than even a direct police assault on a suspect, such that the
officer "had to know he was violating the Constitution even
without caselaw on point." See Smith, 127 F.3d at 1419.
However, if Wright did not intend to facilitate Boyette's
assault, then there would have been no constitutional violation
on his part. The question, then, is whether the record available
on summary judgment raises a factual question as to Wright's
intent to participate in the Boyette assault. Under the Supreme
Court's and Eleventh Circuit's dictates for weighing evidence
upon summary judgment, this Court finds that there is a factual
question.
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The Supreme Court in Adickes v. S.H. Kress & Co., 398 U.S.
144 (1970), instructs that the party moving for summary judgment
"has the burden of showing the absence of a genuine issue as to
any material fact, and for these purposes the material it lodged
must be viewed in the light most favorable to the opposing
party." Id. at 157. In Adickes, a central issue was whether a
police officer and restaurant workers had conspired to refuse to
serve food to the plaintiff and later have her arrested on a
trumped-up vagrancy charge because she, a white woman, was
dining with African-Americans. Id. at 148-49. The Supreme Court
held that the defendants, on summary judgment, failed to show an
absence of material fact by failing to foreclose the possibility
that a police officer was present in the restaurant when Adickes
ordered, and was refused, her food. Id. If the arresting officer
had been in the restaurant, the Court held, a jury could infer
from the circumstances that the officer had disapproved of
Adickes dining with African-Americans and had somehow
communicated his disapproval to the restaurant workers, thus
influencing the decision not to serve Adickes her food. Id.
Here, the evidence viewed in a light most favorable to
Sheppard is that Wright knew Sheppard had been assaulted in the
woods and responded to this information indifferently; that he
either summoned or allowed the victim of a crime, Boyette, to
approach the suspect, Sheppard, at the crime scene in order to
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inspect his person and identify him; and that he was present
when Boyette verbally threatened Sheppard's life before striking
him in the face. All the while, Wright was physically detaining
Sheppard. Plaintiff does not have any direct evidence of
Wright's intent to facilitate Boyette's assault, but a jury
could infer, from the circumstantial evidence, that Wright
intended to let Boyette strike Sheppard. Similarly, in Adickes,
Adickes did not have any direct evidence that the police and the
restaurant workers had agreed to an arrangement to deny her
service and arrest her on pretextual charges. Nevertheless, the
Supreme Court held that the defendants seeking summary judgment
failed to carry their burden by failing to foreclose facts from
which a jury could infer such an agreement. Id. at 148.
Thus, a genuine issue of material fact remains, and a jury
must decide whether Wright used excessive force against Sheppard
by actively participating in the assault against him. The motion
for summary judgment on behalf of Defendants City of Blackshear,
Etheridge, Carter, and Wright (Dkt. no. 35-1) is DENIED solely
as to Defendant Wright, and GRANTED as to the other Defendants.
II. Excessive Force Claims Against Boyette
Both Plaintiffs bring excessive force claims under § 1983
against Defendant Boyette.
To state a claim under § 1983, a plaintiff must show that
the defendant acted under color of state law. Bingham v. Thomas,
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654 F.3d 1171, 1175 (11th Cir. 2011). This "under color of state
law" requirement means that private parties will not generally
be considered state actors for § 1983 purposes. Harvey v.
Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992) . However, private
parties can be liable under § 1983 "if they act in concert with
state officials in violating the plaintiff's constitutional
rights." Allaben v. Howanitz, 579 F. App'x 716, 718 (11th Cir.
2014); see also Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) ("to
act 'under color of' state law for § 1983 purposes does not
require that the defendant be an officer of the State. It is
enough that he is a willful participant in joint action with the
State or its agents.") . This "joint action" requirement is
alternatively referred to a "joint-engagement" or "conspiracy"
theory of § 1983 liability. See Dennis, 449 U.S. at 27-28;
Harvey, 949 F.2d at 1133.
The Eleventh Circuit has clarified what it means by "jointengagement" and "conspiracy." "[M]erely calling upon official
state authority" does not amount to joint engagement, which
requires the private party to actually "join in the exercise" of
state authority. Dye v. Radcliff, 174 F. App'x 480, 483 (11th
Cir. 2006) . And a private party can be said to have conspired to
violate a plaintiff's constitutional rights in violation of
§ 1983 if he "reached an understanding" with the official to
deprive the plaintiff of his rights. Rowe v. City of Ft.
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Lauderdale, 279 F.3d 1271, 1283 (11th Cir. 2002) . Evidence of an
understanding need not amount to a "smoking gun," but there must
be some evidence of agreement between the defendants, and such
an agreement presupposes communication. Id. at 1284; Bendiburg
v. Dempsey, 909 F.2d 463, 469 (11th Cir. 1990); Bailey v. Bd. of
Cnty. Comm'rs of Alachua Cnty., 956 F.2d 1112, 1122 (11th Cir.
1992)
The question, then, is whether a jury could conclude, based
on the evidence available, that Boyette "reached an
understanding" either with Wright, who allegedly held Sheppard
still so that Boyette could strike him in the face with a
flashlight, or with the officers who arrested Plaintiff Myers in
the woods, and who allegedly held Myers while Boyette beat him
for two or three minutes. If there is sufficient evidence of
such agreements, then Boyette can be held liable for depriving
Plaintiffs of the constitutional rights under color of state law
via § 1983. If there is not sufficient evidence, then Boyette
cannot be liable under § 1983, and Plaintiffs' remedies for the
alleged assault can only arise from state-law claims not
presently before the Court.
The evidence of any agreement between Boyette and the
arresting officers is of the same variety as the evidence of
Wright's willing participation in Boyette's assault on Sheppard,
discussed above. Helpful, then, is a revisit of Adickes v. S.H.
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Kress & Co.. In Adickes, Supreme Court held that the party
moving for summary judgment—the restaurant that refused service
to Adickes—failed to foreclose with evidence the possibility
that an officer was present in the restaurant when the servers
refused to take Adickes's order, and that a jury could infer
from this possibility that the officer and the servers had
somehow come to an agreement to refuse service to Adickes and
then arrest her on a trumped up charge. Adickes, 398 U.S. at
157-59. The Supreme Court held that that evidence—the presence
of a police officer in the restaurant—was sufficient to preclude
summary judgment on a § 1983 conspiracy claim.
Here, there is evidence that could lead a reasonable jury
to infer that Boyette conspired to deprive Sheppard and Myers of
their constitutional rights. The evidence of Wright's willing
participation in Boyette's assault on Sheppard could reasonably
suggest that Boyette had reached an understanding with Wright to
commit the assault. While a prior agreement "presupposes"
communication, Bailey, 956 F.2d at 1122, evidence of such
communication need not be a "smoking gun"—all that is necessary
is "some evidence" of agreement. Rowe, 279 F.3d at 1284;
Bendiburg, 909 F.2d at 469. And here, as in Adickes, there is no
direct evidence of any prior communication between Boyette and
Wright to deprive Sheppard of his rights. But that conclusion
could easily be inferred from the circumstances.
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And while Myers was unable to identify with 100 percent
certainty who attacked him in the woods, he is 75 percent sure
it was Boyette based on how he was dressed and the sound of his
voice. Myers says he was immediately beaten and choked after he
was handcuffed by the search team, and that this beating lasted
two to three minutes. He also says his assailant referenced
"stealing from us." This evidence suggests that some law
enforcement officers—whether Britt and Gourley or some other
unidentified officers—arrested Myers and then allowed Boyette to
assault him. A jury could infer that a civilian would not have
had such an opportunity to abuse a recently captured and
handcuffed thief without the help of a law enforcement officer.
Boyette was present at the crime scene when police
apprehended Sheppard and Myers. He allegedly attacked both of
these men while they were in police custody. If a jury believes
Sheppard's and Myers's accounts, it could infer that Boyette
assaulted Plaintiffs in willful participation with state actors,
and that he violated their constitutional rights under color of
state law. Thus, the evidence available is sufficient to
preclude summary judgment, and Plaintiff's § 1983 claims against
Boyette can proceed to trial. Defendants Boyette and Boyette
Electric's motion for summary judgment (Dkt. no. 37-1) is DENIED
as to Defendant Boyette and GRANTED as to Defendant Boyette
Electric.
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CONCLUSION
Because issues of material fact remain as to Defendants
Britt, Gourley, Wright, and Boyette's § 1983 liability, summary
judgment is DENIED solely as to these defendants' motions (Dkt.
nos. 35, 37, 39). Summary judgment is GRANTED as to Defendants
City of Blackshear, Etheridge, Carter, and Boyette Electric.
SO ORDERED, this 22ND day of January, 2015.
LISA4 CHIEF JUDGE
GODBEYD,
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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