Smith v. Hamilton County, TN et al

Filing 56

MEMORANDUM with order to follow.Signed by District Judge Curtis L Collier on 12/6/2012. (AWH, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA
ERIC D. SMITH,
Plaintiff,
v.

OFFICER OWENS and OFFICER DANIEL,
Defendants.

)
)
)
)
)
)
)
)
)

No.
1:10-CV-222
Judge Curtis L. Collier

MEMORANDUM
Eric D. Smith (“Plaintiff”), a pro se plaintiff, seeks damages from Defendant Officer Jeff
Owens (“Officer Owens”) and Defendant Officer Dale Daniel (“Officer Daniel”) for deprivation of
his civil rights under color of state law pursuant to 42 U.S.C. § 1983 (Court File No. 2). Plaintiff’s
action arises from an altercation between Plaintiff and Defendants on December 14, 2009.
Presently before the Court are Defendants’ motion for summary judgment (Court File No.
43), Plaintiff’s motion to amend his opposition to Defendants’ motion for summary judgment with
an exhibit of the judgment of his acquittal of the assault charges against Defendants (Court File No.
47), and Plaintiff’s response and counter motion for summary judgment (Court File No. 48). For
the reasons set forth herein, Plaintiff’s motion to amend will be GRANTED (Court File No. 47),
Defendants’ and Plaintiff’s motions for summary judgment will be DENIED (Court File Nos. 43,
48).
I.

STANDARD OF REVIEW
Summary judgment is appropriate where no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In ruling on a motion
for summary judgment, the Court must view the facts contained in the record and all inferences that

can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis
Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth
of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material
fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the nonmoving party must present some significant, probative evidence indicating the necessity of a trial
for resolving a material, factual dispute. Id. at 322. A mere scintilla of evidence is not enough.
Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court’s
role is limited to determining whether the case contains sufficient evidence from which a jury could
reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports,
253 F.3d at 907. Once the moving party presents evidence sufficient to support a motion under Rule
56, the nonmoving party is not entitled to a trial merely on the basis of allegations. The nonmoving
party may not rest on its pleadings, but must come forward with some significant probative evidence
to support its claim. Celotex, 477 U.S. at 324; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th
Cir. 1994), cert. denied, 516 U.S. 806 (1995); Horsemen's Benev. & Protective Ass’n, Inc. v.
Turfway Park Racing Ass’n, Inc., 20 F.3d 1406, 1411 (6th Cir. 1994); see also Guarino v. Brookfield
Township Trustees, 980 F.2d 399, 404-06 (6th Cir. 1992) (holding courts do not have the
responsibility to search the record sua sponte for genuine issues of material fact). If the nonmoving
party fails to make a sufficient showing on an essential element of its case with respect to which it
has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at
323.

2

II.

FACTS
On December 14, 2009, it is undisputed that Defendants entered Plaintiff’s cell and an

altercation ensued. That fact, however, appears to be the only undisputed fact concerning the
altercation. Plaintiff contends he and Officer Daniel “had words” prior to breakfast that morning
(Court File No. 49). After finishing his breakfast, Plaintiff maintains he was lying on his bed when
Defendants entered and began striking him several times in the face, head, and ribs, in addition to
kicking him (Court File No. 49). After being booked for assaulting the Defendants, Plaintiff was
transported to Erlanger Hospital where they determined he suffered a broken nose, black eye,
bruised ribs, and a concussion as a result of the altercation (Court File No. 49). Plaintiff denies that
he bit, kicked, punched, or fought the officers at any time and points to his injuries, the lack of
injuries to Defendants, and the fact the jury acquitted him of assaulting Defendants as proof
Defendants attacked him (Court File No. 49). Plaintiff seemingly admits he waited until February
2010, after he was transferred to CCA-Silverdale, to contact internal affairs to complain about the
alleged assault (Court File No. 49). Plaintiff contends that after several attempts to contact internal
affairs, Investigator Debbie Morse came to CCA-Silverdale on June 14, 2010, to interview him
about the December 14, 2009, assault (Court File No. 49).
Officer Daniel’s affidavit testimony begins at the point where he and Officer Owens went
to Plaintiff’s cell after breakfast to remove his food tray from his cell and departs dramatically from
Plaintiff’s version (Court File No. 44-4). Officer Daniel explains that due to Plaintiff’s previous
behavior of attacking officers, two officers were required to be present whenever Plaintiff’s cell had
to be opened. Officer Daniel avers he and Officer Owens were the only two officers who worked
on the first floor that had not been attacked by Plaintiff. The officers went in Plaintiff’s cell to

3

retrieve his food tray and observed trash in different areas of his cell. Officer Owens picked up the
trash on and around the commode, and when Officer Daniel stepped in to pick up the trash from the
bench, Plaintiff jumped up from sitting in the corner, hit him in the face, and said, “don’t touch my
s..t.” (Court File No. 44-4, p. 2). Defendants attempted to control Plaintiff. Officer Daniel was
holding Plaintiff’s right arm, attempting to secure it behind his back, when Plaintiff bit his left arm
and he hit Plaintiff to stop him from biting. Defendants attempted to secure his arms again, Plaintiff
bit Officer Daniel again, and he hit Plaintiff again. Plaintiff stopped biting him, pulled away from
the officers, and when Officer Daniel attempted to take Plaintiff to the floor using a head control
technique, Plaintiff pushed Officer Daniel into the back wall and pinned him there. During this
attempt, Plaintiff’s head was bent down and he began biting the side of Officer Daniel’s stomach.
The officer struck Plaintiff around the head to stop the biting but Plaintiff continued to fight and
when the two officers attempted to take Plaintiff to the ground, his face hit the bench in his cell.
Once Plaintiff hit the bench, he said, “I give up,” and placed his hands behind his back and allowed
handcuffs to be placed on him (Court File No. 44-4).
Although Officer Owens did not submit an affidavit, the record includes his responses to
Plaintiff’s interrogatories under oath. Officer Owens states he was asked by Officer Donahue to take
his place in retrieving the breakfast tray and garbage from Plaintiff’s cell because Officer Donahue
had previously had a confrontation with Plaintiff and did not want to be around him. In addition,
Officer Owens avers that Plaintiff was the aggressor during this incident as he and Officer Daniel
were doing their job of providing him with a clean living environment when he punched and bit
Officer Daniel (Court File No. 44-6). The following is Officer Owens’ version of the facts:
[M]yself and officer Daniel entered the cell to clean the trash from his cell, there
were two of use [sic] because that was the order from supervision to have two
4

officers present when inmate Smith’s cell door was open. Inmate Smith became
violent and struck officer Daniel in the chin, inmate Smith also began biting officer
Daniel. I officer Owens trying to pull inmate Smith off officer Daniel was struck in
the chest by inmate Smith’s elbow. I officer Owens trying to strike a pressure point
on inmate Smith’s arm stuck [sic] him in the ribs, due to the cell being a small area
and both inmate Smith and officer Daniel were moving around violently. Once
myself and officer Daniel gained control of inmate Smith by forcing him down into
the bench we were able to place hand restraints on inmate Smith stopping the assault
on police.
(Court File No. 44-6, p. 7).
The record also consists of documentation of an internal affairs investigation (“IA”) but it
appears that only a cursory investigation was done as to this incident (Court File Nos. 44-1, 44-2,
44-3). Detective Debra Morse avers “I addressed the altercation which took place on December 9,
[sic] in the Plaintiff’s cell at the Hamilton County Jail. I determined that the Plaintiff’s allegations
of excessive force against Corrections Officers Dale Daniel and Jeff Owens could not be
substantiated. In fact, it was the Plaintiff who subsequently would be charged with criminal offenses
as a result of his actions against the two officer.” (Court File No. 44-1).
Detective Morse included her memorandum to Captain W.F. Johnson wherein she includes
a brief paragraph regarding her interview with Plaintiff regarding this incident (Court File No. 44-2).
According to the report, Plaintiff complained about his conditions of confinement, a corrections
officer dating his ex-girlfriend, his extended incarceration as a result of the pending charges, and
maintained he neither provoked the officers nor assaulted them.
The report reflects the IA investigator doubted Plaintiff’s credibility The investigator noted
that if Plaintiff had any reservations about reporting the violation in fear of retaliation, his transfer
to CCA would have been an optimal opportunity to report the infraction while under the care of
CCA. The IA investigator states the fact the delayed report was near the proximity of his pending

5

court date left questions as to the motivation of the complaint and the legitimacy of the complaint.
In addition, the IA investigator noted that due to Plaintiff’s delay in reporting the incident,
surveillance images were purged and unavailable for investigative viewing. The IA investigator
concluded that due to a lack of evidence or supported testimonial leads, the investigative inquiry of
police misconduct could not be substantiated (Court File No. 44-2).
Specifically, Plaintiff claims his right to be free from cruel and unusual punishment was
violated when Defendants used excessive and unreasonable force while acting under color of law
when Defendants allegedly assaulted him after he and Officer Daniel had been engaged in a verbal
altercation. In his only pleading submitted under penalty of perjury, Plaintiff avers that after he and
Officer Daniel had words, the Defendants entered his cell while he was lying down after breakfast
and repeatedly struck him in the face, head, and ribs, and kicked him (Court File No. 49). Plaintiff
avers that contrary to Defendants contentions, he did not bite, kick, or punch Defendants at anytime,
yet they charged him with assault after the incident; a charge of which he was subsequently
acquitted by a jury. Plaintiff avers he suffered a broken nose, black eye, bruised ribs, and a
concussion. For these alleged constitutional violations, plaintiff seeks $1,000,000.00 from
Defendants.
III.

ANALYSIS
A.

Defendants’ Motion for Summary Judgment

Defendants claim they are entitled to summary judgment as a matter of law, claiming there
is no genuine issue of material fact as to the liability of either Defendant. In addition, Defendants
assert they are entitled to qualified immunity because there was no constitutional violation of
Plaintiff’s rights and the force used against Plaintiff was not excessive under the circumstances.

6

Furthermore, Defendants argue no clearly established right was violated. According to Defendants,
their decision to use force to subdue Plaintiff was reasonable under the circumstances.
Defendants contend they are entitled to qualified immunity because their alleged conduct did
not violate clearly established rights that a reasonable person would have known. The doctrine of
qualified immunity shields government officials performing a discretionary function “from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). To overcome an immunity defense, a plaintiff must show the defendant
violated “clearly established statutory or constitutional rights of which a reasonable person would
have known.” Id. “The contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Ashcroft v. al-Kidd, ___ U.S. ___, 131
S.Ct. 2074, 2083 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) internal
punctuation and changes omitted).

“We do not require a case directly on point, but existing

precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v.
al-Kidd, 131 S.Ct. at 2083.
Generally, in determining whether an official has qualified immunity, the Court engages in
a two-step inquiry. In Saucier v. Katz, 553 U.S. 194 (2001), the United States Supreme Court
mandated a court must first decide whether the facts alleged or shown by the plaintiff make out a
violation of a constitutional right and if so, then decide whether the constitutional right was clearly
established. Subsequently, however, in Pearson v. Callahan, 555 U.S. 223 (2009), the Court
decided the sequence of the two-step procedure for determining whether an official has qualified

7

immunity is no longer mandatory and the lower courts are permitted to exercise their sound
discretion in deciding which of the two prongs of the test should be applied first. Id. at 236.
To determine whether a right is clearly established, a court must look first to Supreme Court
precedent, then to Sixth Circuit precedent, then to other courts within the Sixth Circuit, and finally
to decision of other circuits. See Gardenhire v. Schubert, 205 F.3d 303, 311 (6th Cir. 2000). Once
a defendant moves for dismissal based on qualified immunity, “[t]he ultimate burden is on the
plaintiff to show that the defendant is not entitled to qualified immunity.” Id.
Here, contrary to Defendants contention, claims that jail officials used excessive force when
subduing an inmate are not analyzed under the Fourth Amendment’s “objective reasonableness”
standard. Instead, such claims are analyzed under the Fourteenth or Eighth Amendment right to be
free from cruel and unusual punishment. The Court is unable to determine from the record before
it whether Plaintiff was a convicted prisoner or a pretrial detainee. The Sixth Circuit has instructed
that,
[T]he standard applying to a pretrial detainee’s excessive force claim lies in the
murky area between the Fourth and Eighth Amendments. At the very least, we have
held that the Fourteenth Amendment Due Process Clause protects a pretrial detainee
from the use of excessive force that amounts to punishment. The Fourteenth
Amendment is the source of a pretrial detainee’s excessive force claim because when
a plaintiff is not in a situation where his rights are governed by the particular
provisions of the Fourth or Eighth Amendments, the more generally applicable Due
Process Clause of the Fourteenth Amendment provides the individual with protection
against physical abuse by officials.
Lanman v. Hinson, 529 F.3d 673, 680-81 (6th Cir. 2008).
Although the Sixth Circuit has not articulated the exact level of protection afforded pretrial
detainees by the Due Process Clause, Leary v. Livingston County, 528 F.3d 438, 443 (6th Cir. 2008)
(“While there is room for debate over whether the Due Process Clause grants pretrial detainees more

8

protections than the Eighth Amendment does, we need not resolve that debate here. Under either
constitutional guarantee, an excessive-force claimant must show something more than de minimis
force), under either constitutional guarantee, Plaintiff has alleged a sufficient excessive force claim.
Defendants maintain the force they used was objectively reasonable, considering the
situation as each Defendant perceived it (Court File No. 44). The problem with Defendants
argument is that Plaintiff claims he did absolutely nothing to resist Defendants. Plaintiff avers he
did nothing when the officers entered his cell and did nothing to protect himself from their excessive
force. Plaintiff’s conduct, according to him, did not provoke any use of force whatsoever on the part
of Defendants and that is dispositive as a matter of law on the qualified immunity defense proffered
by defendants. Under Plaintiff’ account of the events, and viewing the facts in the light most
favorable to him, he did not resist Defendants and the assault charges lodged against him were
completely fabricated. Specifically, if Plaintiff’s claim he did nothing to resist Defendants is true,
it would not be objectively reasonable for Defendants or any reasonable officer in their situation to
believe that the amount of force they were using against Plaintiff was reasonable. Since there is a
disputed issue of material fact as to whether the circumstances would allow an objectively
reasonable officer to believe it was reasonable to use the amount of force Defendants used,
Defendants are not entitled to qualified immunity as a matter of law. The availability of qualified
immunity defense depends on whether “‘a reasonable officer could have believed’”his action “‘to
be lawful, in light of clearly established law and the information [he] possessed.’” Hunter v. Bryand,
502 U.S. 224, 227 (1991) (per curiam) (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987).
Since Defendants version of the facts are sharply disputed, the matter of the officer’s qualified
immunity cannot be resolved as a matter of law.

9

In sum, considering the allegations in a light most favorable to Plaintiff, as the Court is
required to do, Estate of Carter v. City of Detroit, 408 F.3d 305, 310-11 (6th Cir. 2005), Plaintiff
has alleged a violation of his constitutional right to be free from physical abuse by officials. In
addition, the right was clearly established, whether it be under the Eighth or Fourteenth
Amendments. Id.
Because the parties dispute virtually all of the essential facts surrounding the incident, it is
impossible to determine, without choosing between the parties’ sharply different factual accounts,
whether Defendants used reasonable force. Thus, based on the diametrically opposing version of
events between Plaintiff and Defendants, there are clearly material issues of fact concerning what
occurred. “[W]hen the legal question of qualified immunity turns upon which version of facts one
accepts, summary judgment cannot be granted.” Vance v. Wade, 546 F.3d 774, 787 (6th Cir. 2008)
(internal punctuation and citations omitted). In this case Plaintiff avers he was beaten by the officers
gratuitously, and he did not resist. Where there is a material issue of fact, neither summary
judgment nor qualified immunity can be granted to Defendants in their individual capacities.
Therefore, summary judgment will be DENIED (Court File No. 43).
B.

Plaintiff’s Motion for Summary Judgment

Plaintiff maintains he is entitled to summary judgment because a Hamilton County Criminal
Court jury acquitted him on the charges of assault with which Defendants charged him and now base
their defense (Court File No. 48). Plaintiff maintains the doctrines of res judicata or collateral
estoppel prevent Defendants from asserting the defense that he assaulted them.1 Defendants’

1

Notably, the burden of proof for establishing assault in a criminal case–beyond a
reasonable doubt–differs from the burden of proof for establishing assault in a civil case–by a
preponderance of the evidence. Thus, Plaintiff’s contention is incorrect. One Lot Emerald Cut
10

contend Plaintiff’s motion for summary judgment is untimely (Court File No. 51).
In April 2012, the Court entered a Scheduling Order, requiring that all motions, including
motions to dismiss and/or for summary judgment, be filed on or before August 20, 2012 (Court File
No. 32). Plaintiff’s dispositive motion was filed on or about September 10, 2012—at least twentyone days after the deadline. Plaintiff did not move to extend the deadline for filing dispositive
motions, nor has he made any attempt to show good cause for the late filing. Plaintiff’s counter
motion for summary judgment, therefore, will be DENIED as untimely (Court File No. 48).
IV.

CONCLUSION
Accordingly, Defendants’ and Plaintiff’s motions for summary judgment will be DENIED

(Court File No. 43, 48), and Plaintiff’s motion to amend will be GRANTED (Court File No. 47).
A separate order will enter.

/s/
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE

Stones and One Ring v. United States, 409 U.S. 232, 235 (1972)(“[T]he difference in the burden of
proof in criminal and civil cases precludes application of the doctrine of collateral estoppel. The
acquittal of the criminal charges may have only represented an adjudication that the proof was not
sufficient to overcome all reasonable doubt of the guilt of the accused. As to the issues raised, it
does not constitute an adjudication on the preponderance-of-the-evidence burden applicable in civil
proceedings.” (internal punctuation and citations omitted)); Holland v. Bramble, 638 F.Supp.2d 429,
432 (D.Del. 2009) (defendant was not precluded from seeking damages for civil assault after
plaintiff was acquitted of criminal assault for same incident).
11