Choate v. Arms

Filing 98

MEMORANDUM. Signed by Chief Judge Waverly D. Crenshaw, Jr on 8/17/17. (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
NORTHEASTERN DIVISION
DERRICK JUSTIN CHOATE,
Plaintiff,
v.
PHIL ARMS,
Defendant.

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No. 2:16-cv-00069
Chief Judge Crenshaw

MEMORANDUM
This case lends support to the saying that there are two sides to every story. It could also
prove the adage that a picture is worth a thousand words, if only the video camera had captured on
film the alleged mistreatment inmate Derrick Choate received at the hands of jailer Phil Arms.
Unfortunately it did not, prompting Magistrate Judge Joe B. Brown to recommend denial of Arms’
Motion for Summary Judgment (Doc. No. 24).
Having conducted the de novo review required by Rule 72(b) of the Federal Rules of Civil
Procedure, the Court agrees with Magistrate Judge Brown’s Report and Recommendation (“R & R”)
(Doc. No. 89). Accordingly, the Court will deny the Motion for Summary Judgment and overrule
Arms’ objections to the R & R, which are presented in the form of a Motion for De Novo
Determination (Doc. No. 91).
I. Background
On January 14, 2016, Choate was a pretrial detainee in the Putnam County Jail. Arms, a
lieutenant with the Putnam County Sheriff’s Department1 who worked at the jail, claims that
Choate– convicted felon jailed on charges of felony evading arrest, and an avowed member of the

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Arms has since been promoted to Captain. (Doc. No. 24-1, Arms Aff.).

Aryan Nations–“escaped from his maximum-security cell” and “refused to return.” (Doc. No. 92
at 2). As jailers were escorting Choate to a holding cell, he turned “180o” to face Lt. Arms and told
him that he would have Lt. Arms’ wife and mother “f**ked with a n**ger d*ck,” or words to that
effect. (Id. at 3). Because Choate turned around and made verbal threats, Lt. Arms believed that
Choate “posed a significant disciplinary threat.” Acting on the threat, Lt. Arms grabbed Choate and
“put him against the wall.” (Id.). Lt. Arms concedes that Choate “bump[ed] his head,” but claims
this resulted in an “inconsequential small knot.” (Id.).
Lt. Arms’ Motion for Summary Judgment is supported by his own affidavit (Doc. No. 24-1)
and the affidavits from several correctional officers (Doc. Nos. 24-3, 24-4, 24-5) who were on scene.
These affidavits generally state that, after Choate turned and threatened Lt. Arms, Choate was “put”
or “taken” to the wall by Lt. Arms, which resulted in a superficial knot on Choate’s forehead. They
also uniformly opine that the force Lt. Arms used was not excessive.
In addition, Lt. Arms relies upon the affidavit of Deborah A. Deck, L.P.N.2 In her affidavit,
Nurse Deck states:
Based upon my assessment of Mr. Choate, it was my opinion that he had a small
lump on his head that resolved without any significant problems. When I initially
saw him the first two times, he had no marks on his neck and did not complain about
any marks on his neck until the second time I saw him. At that time, there were no
marks seen on his neck. The third time I saw him there were marks. It would be very
unusual for marks to appear three (3) hours after I initially observed him if they had
been placed on him before 9:30 a.m. when he was initially seen.
(Doc. No. 52-1 at 2-3).
For his part, Choate alleges that, on the day in question, he did not know he was on

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Lt. Arms characterizes Nurse Deck as an “independent” witness. (Doc. No. 92 at 2). While she
may be an “employee of Southern Health Partners, an independent medical company,” (id. at 6), it is unlikely
that Southern Health Partners provides free medical care to the inmates at the Putnam County Jail, or that
Nurse Deck works gratis.

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lockdown. He also claims not to remember whether he or his cellmate opened the cell door, but
asserts that the locks on the cells had been broken for years, and inmates entered and exited their
cells at will, even if they were not supposed to. Choate claims that, as he was being escorted out of
the housing unit, he turned the upper half of his body “about 60 to 90 degrees” while still walking
forward, and told Lt. Arms to “go f**k your mother in the ass with a n**ger d*ck.” (Doc. No. 60
at 2). This statement, he claims, was not a threat to either Lt. Arms or his family, but Lt. Arms
“became enraged about the comment.” (Id. at 3). Lt. Arms then allegedly “grabbed” Choate
“around the neck with both hands,” threatened to kill him, and “choked” Choate “for a period of
time to an almost unconscious state.” (Id.). After that, Lt. Arms allegedly “slammed [Choate’s]
head into the wall . . . while [Choate] was handcuffed . . . and not resisting in anyway.” (Id.). The
net result of Lt. Arms excessive use of force, according to Choate, was that he “received an
extremely large knot to the right front part of [his] forehead,” and had “strangulation and claw marks
to [his] neck.” (Id. at 3).
To support his version of events, Choate submitted his own affidavit (Doc. No. 71), along
with affidavits from Derrick Flores (Doc. No. 61), Shawn Vincent (Doc. No. 62), James
Whittenburg (Doc. No. 71), and Christopher Mayberry (Doc. No. 74), all fellow inmates at the
Putnam County Jail. Collectively, those affidavits suggest the following: (1) a handful of inmates
were sitting around a table in the day room playing cards when they were approached by several
guards; (2) at the guards’ instructions, Choate stood up and was handcuffed; (3) while being led
away, Choate said something pejorative about Lt. Arms’ mother or wife pertaining to a “n**ger
d*ck,” but this was in response to guards inviting Choate to fight, Lt. Arms’ statements to the effect
that Choate was a “punk,” and that he ate guys like Choate for breakfast; and (4) Lt. Arms choked

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Choate and slammed his head into the wall (some say on more than one occasion). At least two of
the affiants also claim to have seen a large knot on Choate’s forehead after the altercation with Lt.
Arms.
The “escape” from the “maximum security cell” and some of the subsequent events were
captured on video. Although the video lasts 7 minutes and 39 seconds, it appears (based upon the
counter at the bottom of the screen) to encompass the period from 8:38 a.m. to 9:01 a.m. on June 24,
2016.3 Approximately one minute into the video, a hand and arm can be seen protruding through
the pie hole in the door of a cell that sits towards the back of the pod. Approximately fifty seconds
later, as inmates are casually walking down the stairs towards a table at the back of the pod and
directly in front of Choate’s cell, Choate and his cellmate are seen exiting their cell. They then walk
over to the same table and sit down. For the next five minutes based on the video, or twenty minutes
based on the counter, Choate appears to be chatting with five to six individuals that are sitting at,
or standing near, the table. Two jailers then approach and position themselves on opposite sides of
the table. They are joined by another jailer.
At six minutes into the tape, or twenty-one minutes according to the counter, five jailers are
positioned around the table. After what appears to be a brief discussion, Choate stands up and is
handcuffed from behind. Accompanied by jailers, Choate then walks to the left side of the common
area, along the cellblock doors. At one point Choate turns to face Lt. Arms. Lt. Arms then appears
to push Choate and the two, along with a jailer who was following them, disappear behind a
staircase and are off screen for the next 19 seconds. Seven minutes and fifteen seconds into the tape,

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The difference in the time, i.e. the 7-plus minutes on the tape provided to the Court versus the 23
minutes which appears to have elapsed based upon the timer, may be the result of the tape being turned-off
or fast forwarded when it was copied. There is no suggestion, however, that the tape was altered to leave out
critical events.

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or at 9:51 a.m. according to the counter, Choate and his jailer escorts reappear on screen for a few
seconds and then disappear once again.
III. Legal Analysis
In his Motion for Review, Lt. Arms argues that he is entitled to summary judgment or, at the
very least, qualified immunity on Choate’s excessive force claim because Choate cannot show that
a clearly established right was violated. He further claims that (1) Magistrate Judge Brown “did not
properly analyze this case” in accordance with Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015),
(2) the videotape and the affidavits filed on behalf of Lt. Arms show no excessive force was used;
and (3) Choate has only shown there might be some “metaphysical doubt” as to the material facts,
making summary judgment appropriate. The Court is unpersuaded by any of these arguments.
As a preliminary matter, Lt. Arms is correct that “[n]ot every push or shove, even if it may
later seem unnecessary in the peace of a judge’s chambers,” violates the constitution. Graham v.
Connor, 490 U.S. 386, 396 (1989). Rather, and as the Supreme Court recently pointed out, the
following considerations may prove relevant to a determination of excessive force: “the 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 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 resisting.” Kingsley, 135 S. Ct. at 2473.
Here, the evidence in inconclusive. While Lt. Arms claims he was handling an escape from
a maximum security cell, the video shows Choate and others firmly ensconced in the housing unit,
playing cards, and chatting for quite some time before officers arrived to corral the alleged escapees.
Further, while Lt. Arms claims that Choate posed a severe threat, that is not evident from the video

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on which he so heavily relies, even though it shows that, at one point, Choate turned to face Lt.
Arms.
Lt. Arms also argues that “[n]o case has held that it is unconstitutional for a prison guard,
confronted and threatened as Lt. Arms was, to take a prisoner to the wall and then a holding cell,”
and claims Choate simply “bump[ed] his head and received an inconsequential small knot.” (Doc.
No. 92 at 2). These assertions fail to acknowledge that Choate claims that his head was slammed
against the wall resulting in a large knot, and that he was choked almost to the point of
unconsciousness.

They also ignore that the Sixth Circuit has (1) “long recognized that a

spontaneous assault by a prison guard on an inmate is grounds for an Eighth Amendment excessive
force claim,” (2) “long held that a plaintiff may ‘allege use of excessive force even where the
physical contact between the parties did not leave excessive marks or cause extensive physical
damage,’” and (3) recognized “that pretrial detainees ha[ve] a clearly established right not to be
gratuitously assaulted while fully restrained and subdued.” Coley v. Lucas Cty., 799 F.3d 530, 538
(6th Cir. 2015) (citation omitted) (collecting cases).
To prevail on an excessive force claim, “a pretrial detainee must show only that the force
purposely or knowingly used against him was objectively unreasonable.” Kingsley, 135 S. Ct. at
2473. Choate has presented sufficient evidence to at least raise a jury question on the issue,
notwithstanding Lt. Arms’ opinion that the video shows otherwise.
Lt. Arms relies on the Supreme Court’s decision in Scott v. Harris, 550 U.S. 372, 380 (2007)
for the proposition that “[w]hen 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 adopt that
version of the facts for purposes of ruling on a motion for summary judgment.” He also relies on

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the Sixth Circuit’s decision in Kinlin v. Kline, 747 F.3d 573, 576 (6th Cir. 2014), which confirms
the point.
The Court cannot say, in the words of Scott, that “the videotape tells quite a different story,”
550 U.S. at 379, from that narrated by Choate and his fellow detainees. The videotape actually tells
no story for 19 seconds and it is during that period when the alleged excessive force occurred. See
Godawa v. Byrd, 798 F.3d 457, 463 (6th Cir. 2015) (citation omitted) (noting that Scott was based
on a “videotape that captured the relevant events and ‘quite clearly contradict[ed]’ the plaintiff’s
story such that ‘no reasonable jury could believe it.’”); Gholston v. Wayne Cty. Airport Auth., 574
F. App’x 632, 637 (6th Cir. 2014) (stating that “Scott is applicable only if there are objective facts
in the record, such as a video, showing that one party’s account is simply beyond belief”); Landis
v. Phalen, 297 F. App’x 400, 405 (6th Cir. 2008) (citation omitted) (observing that Scott requires
summary judgment only where plaintiff’s store is “utterly discredited” by a videotape).
Nor can the Court reject the affidavits of Choate’s witnesses simply because some say that
Choate only partially turned, whereas the tape show he made a total about-face. Falsus in uno,
falsus in omnibus (false in one, false in all), while perhaps “a natural and instinctive tool of the
factfinder, like a carpenter’s hammer or plumber’s wrench,” Siewe v. Gonzales, 480 F.3d 160, 171
(2d Cir. 2007) (emphasis added), is a “hoary doctrine,” United States v. Connolly, 504 F.3d 206, 216
(1st Cir. 2007), of dubious validity. “[T]he fact that a witness lies about one thing doesn’t
automatically invalidate all his testimony.” United States v. Edwards, 581 F.3d 604, 612 (7th Cir.
2009) (collecting cases); see United States v. Jackson, 69 F. App’x 630, 632 (4th Cir. 2003) (“Courts
disfavor such an instruction and prefer general instructions on witness credibility”). Indeed,
“[a]nyone who has ever tried a case or presided as a judge at a trial knows that witnesses are prone

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to fudge, to fumble, to misspeak, to misstate, to exaggerate. If any such pratfall warranted
disbelieving a witness’s entire testimony, few trials would get all the way to judgment.” Kadia v.
Gonzales, 501 F.3d 817, 821 (7th Cir. 2007).
Furthermore, the affiants’ testimony about how far Choate turned his body is not necessarily
an untruth. Choate was followed by Lt. Arms and another guard and it could be that from their
vantage point those witnesses only saw what appeared to be Choate turning his head or upper body.4
Lt. Arms also argues the videotape confirms that nothing untoward occurred while he and
Choate were outside of camera range because when Choate and the officers reappear, Choate is
“calmly being led toward the holding cell,” he “and the Corrections Officers are all calm,” “[t]here
is no agitation, whatever,” “[n]o one is animated,” and “[n]o one is disheveled.” (Doc. No. 92 at 5).
That is certainly one way to view the film. On the other hand, the record also contains a videotape
of a cell extraction later that afternoon and some of the stills from the video (e.g. Doc. Nos. 94-1 at
2 and 94-2 at 3) might be viewed by the jury as showing that Choate has a large knot on the right
side of his forehead, which is exactly the injury that he claims to have received.
Finally, Lt. Arms is correct that “some metaphysical doubt as to a material fact is insufficient
to forestall summary judgment.” Babcock & Wilcox Co. v. Cormetech, Inc., 848 F.3d 754, 758 (6th
Cir. 2017) (citing Sierra Club v. ICG Hazard, LLC, 781 F.3d 281, 284 (6th Cir. 2015)). However,
in the absence of a conclusive videotape, to accept his premise that there is only a metaphysical
doubt about whether he used excessive force against Choate would be to credit Lt. Arms’ witnesses
over Choate’s witnesses simply because the former are correctional officers and a nurse, while the

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The Court recognizes that if the view of one or more of the inmates was obscured, then they also
might not have been able to witness what occurred once Choate and Lt. Arms were off screen. This is not
evident from their affidavits, however, and is something that can be explored on cross-examination.

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latter are (or were) inmates, some of whom are convicted felons. This, the Court will not do. See,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions,
not those of a judge.”); United States v. Daniels, 170 F. App’x 409, 413 (6th Cir. 2006) (observing
that it is “the proper role of the jury to determine the believability” of witnesses). Although
“convicted felons are not generally permitted to stand pristine before a jury with the same credibility
as that of a Mother Superior,” United States v. Lipscomb, 702 F.2d 1049, 1077 (D.C. Cir. 1983)
(McKinney, J. concurring), Rule 601 of the Federal Rules of Evidence provides that”[e]very person
is competent to be a witness unless these rules provide otherwise,” and Rule 609 sets forth the
general rule for “attacking a witness’s general character for truthfulness by evidence of a criminal
conviction[.]” Fed. R. Evid. 601, 609(a).
III. Conclusion
Based upon the foregoing, the Court will adopt Magistrate Judge Brown’s R & R, overrule
Lt. Arms’ objections thereto, and deny his Motion for Summary Judgment.
An appropriate Order will enter.

__________________________________________
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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