Choate v. Arms
REPORT AND RECOMMENDATION re 24 MOTION for Summary Judgment filed by Phil Arms. Signed by Magistrate Judge Joe Brown on 7/13/17. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
DERRICK JUSTIN CHOATE #414947,
Chief Judge Crenshaw/Brown
REPORT AND RECOMMENDATION
Pending before the court is a motion for summary judgment filed by defendant on November
11, 2016. (Doc. 24) The Magistrate Judge RECOMMENDS, for the reasons explained below,
that the motion for summary judgment (Doc. 24) be DENIED.
I. BACKGROUND and INTRODUCTION
Plaintiff, proceeding pro se and in forma pauperis, was a pretrial detainee in the Putnam
County Jail at the time of the alleged events that give rise to this action under 42 U.S.C. § 1983.
(Doc. 1, pp. 1-2) The complaint alleges that Lt. Phil Arms, the defendant to this action, subjected
him to cruel and unusual punishment by using excessive force while escorting plaintiff to his cell
on June 24, 2016. (Doc. 1, pp. 5-6) More particularly, the complaint alleges that, after plaintiff
made a disparaging comment about defendant’s mother, defendant grabbed him by the throat with
both hands, choked him, and then “slammed” his head into the adjacent concrete wall causing “a
large knot…to pop up on [his] forehead…” (Doc. 1, p. 6). Plaintiff asserts that he was handcuffed
behind his back at the time of the alleged incident, and that he made no threatening gestures. (Doc.
1, p. 6)
Defendant moved for summary judgment on November 11, 2016. (Doc. 24) The motion
includes attached copies of defendant’s sworn affidavit, plaintiff’s medical records for the date of
the alleged incident, and the sworn affidavits of Sgt. Scott Murphy, Corrections Officer (CO)
Corey Jackson, and CO Robert Underwood. (Doc. 24) Plaintiff also filed a memorandum of law in
support his motion and a statement of undisputed material facts. (Docs. 25-26)
Plaintiff moved to amend his original complaint on March 27, 2017 to add eight additional
defendants. (Doc. 54) Plaintiff’s motion to amend was denied on July 11, 2017, leaving only the
original claim against the original defendant. (Doc. 86)
Plaintiff filed a response in opposition to defendant’s motion for summary judgment on April
13, 2017. (Doc. 59) He also filed the sworn affidavits of inmates Derrick Flores and Shawn
Vincent. (Docs. 61-62)
Defendant filed a motion for leave to file an exhibit manually on April 17, 2017. (Doc. 64)
Defendant’s motion was granted. (Doc. 66) The exhibit filed manually was a DVD containing two
videos, one of which entitled “Choate escape” purports to show the actual incident that gave rise
to this action (hereinafter referred to as “DVD”).
On May 8, 2017, plaintiff filed his own sworn affidavit and the sworn affidavit of inmate
James Whittenburg. (Doc. 71) Defendant replied to plaintiff’s response to his motion for summary
judgment on May 9, 2017 (Doc. 72), following which plaintiff filed the affidavit of inmate
Christopher Mayberry on May 15, 2017 (Doc. 74). On May 17, 2017, defendant filed a
supplemental reply to the filing of inmate Mayberry’s affidavit. (Doc. 77) Thereafter, plaintiff
filed the affidavit of inmate Wayne Masciarella (Doc. 81), in response to which defendant again
filed a reply (Doc. 83).
This matter is now properly before the court.
II. LEGAL STANDARD
A. Action Brought Pursuant to 42 U.S.C. § 1983
“To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when construed
favorably, establish (1) the deprivation of a right secured by the Constitution or laws of the United
States (2) caused by a person acting under the color of state law.” Sigley v. City of Parma Heights,
437 F.3d 527, 533 (6th Cir. 2006).
B. Cruel and Unusual Punishment
The Eighth Amendment prohibits the infliction of “cruel and unusual punishments” on
prisoners. U.S. Const. amend VIII. The Eighth Amendment’s prohibition against cruel and
unusual punishment applies to pretrial detainees through the Due Process Clause of the Fourteenth
Amendment. See Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563, 568 (6th Cir. 2013). Claims
brought by pretrial detainees are “analyzed under the same rubric as Eighth Amendment claims
brought by prisoners,” even though their claims are based on rights protected by the Fourteenth
Amendment. Villegas, 709 F.3d at 568.
Excessive force against a pretrial detainee is evaluated considering whether “the force
purposely or knowingly used against him was objectively unreasonable” and depends on casespecific facts. Coley v. Lucas Cty., Ohio, 799 F.3d 530, 538 (6th Cir. 2015) (quoting Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2473 (2015)). In determining whether the force applied by a
corrections officer was reasonable, possible considerations to take into account may include:
[T]he relationship between the need for the use of force and the
amount of force used; the extent of the plaintiff’s injury; any effort
made by the officer to temper or to limit the amount of force; the
severity of the security problem at issue; the threat reasonably
perceived by the officer; and whether the plaintiff was actively
Kingsley, 135 S. Ct. at 2473. Objectively reasonable force does not include the application of
“gratuitous violence” by an officer. See Coley, 799 F.3d at 539. A forceful push of a handcuffed
pretrial detainee that causes him to fall and hit the wall and floor may constitute excessive force.
See Coley, 799 F.3d at 539. However, not every push by a corrections officer against an inmate that
might seem unnecessary in hindsight constitutes excessive force. See Coley, 799 F.3d at 539
(quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
C. Summary Judgment
In granting a motion for summary judgment, “[t]he court shall grant summary judgment 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.” Fed. R. Civ. P. 56(a). In evaluating whether summary judgment is
appropriate, the court is to consider the facts presented in the record in the light most favorable to
the non-moving party, and the non-movant must provide sufficient evidence and more than the
pleading to show a genuine issue of material fact. Shreve v. Franklin Cty., Ohio, 743 F.3d 126,
132 (6th Cir. 2014) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)); Williams v.
Mehra, 186 F.3d 685, 689 (6th Cir. 1999).
Evaluating evidence at the summary judgment stage depends on whether an actual
disagreement is established by the evidence or that the evidence heavily favors one party so that
party must prevail. Burgess v. Fischer, 735 F.3d 462, 471 (6th Cir. 2013) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). “When opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no reasonable jury could
believe it, a court should not accept the version of the facts,” that completely contradicts the record
in evaluating summary judgment. Coble v. City of White House, Tenn., 634 F.3d 865, 868 (6th Cir.
2011) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). If, however, there is a genuine dispute of
material fact, then the motion for summary judgment should be denied. Sowards v. Loudon Cty.,
Tenn., 203 F.3d 426, 431 (6th Cir. 2000), cert. denied, 531 U.S. 875 (2000).
A. Defendant’s Motion for Summary Judgment
Defendant argues in his motion for summary judgment that he did not use excessive force
against plaintiff. (Docs. 24; 25, pp. 1, 3) As previously noted above at p. 2, in addition to his own
sworn affidavit to that end, defendant also has submitted the sworn affidavits of Sgt. Murphy, CO
Jackson, and CO Underwood, in which they too attest that defendant did not use excessive force.
(Doc. 24) Plaintiff argues, on the other hand, that defendant did use excessive force against him,
and supports his allegation with the affidavits of inmates Flores, Vincent, Whittenburg, Mayberry,
and Masciarella, all of whom attest that they witnessed defendant’s alleged use of excessive force.
(Docs. 61-62; 71; 73; 81) These conflicting affidavits create a genuine issue of material fact
which, without something more, would warrant denying defendant’s motion for summary
judgment. The “something more” is the DVD filed by defendant.
The DVD shows plaintiff outside of his cell sitting at a table with other inmates. (DVD, 6:306:48) It also shows plaintiff being handcuffed and escorted from the common area. (DVD, 6:406:51) As plaintiff is being escorted, defendant starts to move his arm towards plaintiff’s upper
body. (DVD, 6:50-6:53) Plaintiff and defendant then move out of view of the camera, just prior to
the alleged incident. (DVD, 6:48-6:58) The DVD does not show the alleged incident.
Given the conflicting affidavits, and that the DVD does not show the alleged assault, there
exists a genuine issue of material fact whether defendant used excessive force.
B. Qualified Immunity
Defendant’s motion for summary judgment also asserts a qualified immunity defense. (Doc.
25, p. 6) The Sixth Circuit has stated that qualified immunity claims are evaluated according to a
“two-step analysis: (1) viewing the facts in the light most favorable to the plaintiff, we determine
whether the allegations give rise to a constitutional violation; and (2) we assess whether the right
was clearly established at the time of the incident.” Shreve, 743 F.3d at 134 (internal quotations
omitted) (quoting Burgess, 735 F.3d at 472). Either step may be evaluated first. Burgess, 735 F.3d
at 472 (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). The plaintiff bears the burden of
proving “that the officer is not entitled to qualified immunity.” Coble, 634 F.3d at 870-71 (citing
Binay v. Bettendorf, 601 F.3d 640, 647 (6th Cir. 2010)). If, at summary judgment, “plaintiff’s
evidence would reasonably support a jury’s finding that the defendant violated a clearly
established right, [then] the court must deny summary judgment.” McDonald v. Flake, 814 F.3d
804, 812 (6th Cir. 2016).
1. Clearly Established Right
A “clearly established” right is a right that is “sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Campbell v. City of Springboro, Ohio,
700 F.3d 779, 788 (6th Cir. 2012) (internal quotations omitted) (quoting Wheeler v. City of
Lansing, 660 F.3d 931, 938 (6th Cir. 2011)). Pretrial detainees have a clear constitutional right to
be free from excessive force. See Kingsley, 135 S. Ct. at 2473; Shreve, 743 F.3d at 133. As
explained above at pp. 3-4, the Sixth Circuit has stated that using force that amounts to “gratuitous
violence” constitutes excessive force. See Coley, 799 F.3d at 539. Pretrial detainees have a
“clearly established right not be gratuitously assaulted while fully restrained and subdued.” Coley,
799 F.3d at 540. Plaintiff was a pretrial detainee and was handcuffed with his hands behind his
back at the time of the alleged incident. (Doc. 1, pp. 1, 6) Therefore, the clearly established rights
explained above applied to him. As explained, however, whether defendant’s actions constitute
excessive force is a matter in dispute.
2. Constitutional Violation
Regarding the second step in the qualified immunity analysis, there is a factual disagreement
over whether defendant violated plaintiff’s constitutional rights. (Docs. 24, p. 2; 59, p. 2) As
explained above, the lack of security footage of the alleged incident along with the conflicting
affidavits submitted by plaintiff and defendant generate a factual dispute regarding whether the
force used was excessive and whether defendant violated plaintiff’s constitutional rights. (DVDChoate Escape 6:48-6:58; Docs. 24-3, p. 2; 24-4, pp. 1-2; 24-5, pp. 1-2; 61, p. 3; 62. p. 2; 74, pp.
1-2; 71, pp. 4, 7; 81, p. 3) Viewing the facts most favorably to plaintiff, the facts could reasonably
support a jury finding in favor of plaintiff that defendant violated a clearly established
constitutional right of plaintiff. See McDonald, 814 F.3d at 812. Therefore, defendant is not
entitled to a qualified immunity defense at this time.
The Magistrate Judge RECOMMENDS for the reasons explained above that defendant’s
motion for summary judgment (Doc. 24) be DENIED. Pursuant to Rule 72(b) of the Federal Rules
of Civil Procedure, the parties have fourteen days, after being served with a copy of this R&R to
serve and file written objections to the findings and recommendation proposed herein. A party
shall respond to the objecting party’s objections to this R&R within fourteen days after being
served with a copy thereof. Failure to file specific objections within fourteen days of receipt of this
R&R may constitute a waiver of further appeal. Thomas v. Arn, 474 U.S. 140, 155 (1985).
It is so ORDERED.
ENTERED this the 13th day of July, 2017.
Joe B. Brown
United States Magistrate Judge
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