Mayers v. Boyd et al

Filing 125

REPORT AND RECOMMENDATION: The undersigned recommends that the Defendants' Motion for Summary Judgment (Docket Entry No. 39) be granted and the complaint dismissed. Signed by Magistrate Judge John S. Bryant on 2/10/2016. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
RICHARD A. MAYERS,

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Plaintiff
v.
MATTHEW ELLIS, et al.,
Defendants
TO:

No. 3:14-1560
Judge Trauger/Bryant
Jury Demand

THE HONORABLE ALETA A. TRAUGER
DISTRICT JUDGE

REPORT AND RECOMMENDATION
Defendants Ronnie Williams, Robert Watson, Jeffrey Kerr,
George Hurst and Brian McCartherens have filed a Motion for Summary
Judgment

pursuant

to

Rule

56

of

the

Federal

Rules

of

Civil

Procedure (Docket Entry No. 39). Plaintiff Mayers has not responded
in opposition, and the time within which he was required to do so
has expired.
For the reasons stated below, the undersigned Magistrate
Judge recommends that these Defendants’ Motion for Summary Judgment
be granted and the complaint dismissed.
STATEMENT OF THE CASE
Plaintiff Richard A. Mayers, a prisoner proceeding pro
se, has filed his civil rights action pursuant to 42 U.S.C. § 1983
alleging

that

the

five

moving

Defendants,

officers

of

the

Millersville, Tennessee, Police Department, used excessive force
while attempting to take Plaintiff into custody on August 15, 2013.
Plaintiff alleges that he was shot multiple times, sprayed with

pepper spray, and had his head stomped by these Defendant officers
in

violation

of

his

constitutional

rights

under

the

Fourth

Amendment.
The

moving

Defendants

filed

their

answers

denying

liability and asserting affirmative defenses (Docket Entry Nos. 22
and 24). They have now filed their motion for summary judgment.
STANDARD OF REVIEW
A party may obtain summary judgment by showing “that
there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law. See Fed. R. Civ.
P. 56(a); Covington v. Knox County School Sys., 205 F.3d 912, 914
(6th Cir. 2000). The moving party bears the initial burden of
satisfying the court that the standards of Rule 56 have been met.
See Martin v. Kelley, 803 F.2d 236, 239 n.4 (6th Cir. 1986). The
ultimate question to be addressed is whether there exists any
genuine dispute of material fact. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Covington, 205 F.3d at 914 (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If so, summary
judgment is inappropriate.
To

defeat

a

properly

supported

motion

for

summary

judgment, the nonmoving party must set forth specific facts showing
that there is a genuine issue of material fact for trial.

If the

party does not so respond, summary judgment will be entered if
appropriate. Fed. R. Civ. P. 56(e). The nonmoving party’s burden of
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providing specific facts demonstrating that there remains a genuine
issue of material fact for trial is triggered once the moving party
shows an absence of evidence to support the nonmoving party’s case.
Celotex, 477 U.S. at 325. A genuine issue of material fact exists
“if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In
ruling on a motion for summary judgment, the Court must construe
the evidence in the light most favorable to the nonmoving party,
drawing all justifiable inferences in its favor. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
SUMMARY OF UNDISPUTED FACTS
On the afternoon of August 15, 2013, a confidential
informant

notified

the

Millersville

police

dispatcher

that

Plaintiff Mayers, who had previously been convicted of a drug
felony, was on his way to conduct a drug transaction at the Dollar
General Store on Highway 31W in Goodlettsville, Tennessee. The
informant reported that Mayers was armed and that he would commit
“suicide by cop” before allowing himself to be arrested and sent
back to prison. The informant stated that Plaintiff Mayers would be
driving a red Geo Tracker.
The Defendant police officers decided that Defendant
Hurst would intercept and apprehend Plaintiff Mayers as he came off
of the northbound exit ramp from Interstate 65 onto Highway 31W.
The other Defendant officers positioned their patrol cars at
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various locations nearby in order to assist in the apprehension of
Mayers.
Plaintiff Mayers drove his red Geo Tracker past Defendant
Hurst and proceeded northbound on Highway 31W. Defendant Hurst
activated his emergency lights and his siren, but Mayers’s Tracker
failed to stop and a pursuit ensued. Mayers turned right into a
Citgo gas station, did a U-turn and headed back southbound on
Highway 31W. As Plaintiff made this U-turn, he held a handgun out
of the driver’s side window and pointed the gun at Defendant Hurst.
In his complaint, Plaintiff Mayers described this occurrence as
follows: “I think I pointed my firearm in [the Defendant police
officers’] general direction in order to either get them away or to
make them go ahead and kill me.” (Docket Entry No. 1 at 5).
Plaintiff drove southbound on Highway 31W for a short
distance, turned right onto Forks Road and then into the second
entrance to the Economy Inn, located on the south side of Forks
Road. The Defendant police officers followed Plaintiff into the
parking lot of this hotel and blocked all exits with their cars.
Defendants got out of their patrol cars and positioned themselves
at various locations where they could observe Plaintiff Mayers, who
remained inside his Geo Tracker behind the hotel.
Defendant Williams, Chief of the Millersville Police
Department,

got

out

of

his

patrol

car

in

order

to

approach

Plaintiff Mayers. Mayers pointed his firearm at Chief Williams and
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then at Defendant McCartherens. As Chief Williams dived back into
his patrol car for cover, Defendants Hurst, McCatherens, Watson and
Kerr fired their weapons at Mayers for a period of approximately
nine seconds. When Defendant Kerry could no longer see Mayers
pointing his weapon at the other officers he gave the order to
“hold you fire.” The officers approached the red Geo Tracker and
found Mayers lying in the front seat. They dragged Mayers from the
Tracker and recovered his handgun near the driver’s door. The
weapon was a .45 caliber pistol loaded with a bullet in the chamber
and bullets in the magazine.
After Plaintiff Mayers was removed from his vehicle, the
Defendant officers attempted to place handcuffs on him. When Mayers
refused to give his arm to the officer as instructed and instead
reached for a knife on his right side with his hand, Defendant
Hurst sprayed Mayers in the face with pepper spray to get him to
stop reaching for the knife. The officers were then able to place
handcuffs on Mayers and take him into custody.
After the shooting ceased and while the other officers
were attempting to secure Mayers in handcuffs, Defendant Kerr
contacted dispatch and requested that an ambulance be sent to their
location. Defendants have filed surveillance video from the Economy
Inn showing many of the events described above (Docket Entry Nos.
44-2,

and

47-2).

The

Defendant

officers

in

their

supporting

affidavits deny that anyone “stomped” Plaintiff Mayers, and the
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surveillance video filed with the Court fails to show any of the
Defendant officers “stomping” Plaintiff Mayers. Although the record
fails

to

contain

any

medical

evidence

concerning

Plaintiff’s

injuries, Plaintiff in his complaint alleges that he was struck in
both legs by gunfire from the Defendants.
Several months later Plaintiff Mayers wrote a letter
dated July 9, 2014, addressed to Defendant Hurst which states in
part as follows: “I apologize for putting you and your fellow
officers in the position of having to shoot me. . . . For several
hours, I sat with that very same gun at my head the day before this
incident and couldn’t get the courage to do it myself, but devised
in my miserable mental state this plan to have others do it for
me.” (Docket Entry No. 48-3).
ANALYSIS
A district court cannot grant summary judgment in favor
of a movant simply because the adverse party has not responded. The
Court is required, at a minimum, to examine the movant’s motion for
summary judgment to insure that he has discharged that burden.
Carver v. Bunch, 946 F.2d 451, 455 (6th Cir. 1991).
To prevail in a civil rights action brought pursuant to
42 U.S.C. § 1983, a plaintiff must show (1) the deprivation of a
right secured by the Constitution or laws of the United States; and
(2) that the person causing such deprivation was acting under color
of state law.

Flagg Bros. v. Brooks, 436 U.S. 149, 155 (1978). In
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this case, it is undisputed that the Defendant Millersville police
officers were acting under color of state law at the time of the
August 15, 2013, incident that gives rise to Plaintiff’s claims.
Plaintiff Mayers asserts that the Defendants used excessive force
during his arrest, which, if true, would constitute a violation of
Plaintiff‘s rights under the Fourth Amendment. Graham v. Connor,
490 U.S. 386, 394 (1989).
The analysis of an excessive force claim depends upon
whether

the

degree

of

force

used

was

reasonable.

“[T]he

‘reasonableness’ inquiry in an excess force case is an objective
one:

the

question

is

whether

the

officers

are

‘objectively

reasonable’ in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation.”
Graham, 490 U.S. at 397. The Graham court also stated:
The “reasonableness” of the particular use of force must
be judged from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of
hindsight. . . . The calculus of reasonableness must
embody allowance for the fact that police officers are
often forced to make split-second judgments – in
circumstances that are tense, uncertain and rapidly
evolving – about the amount of force that is necessary in
a particular situation.
Id. at 396-97.
The Sixth Circuit has found that whether an officer’s use
of force was reasonable turns on the facts of each case. Relevant
to this inquiry are (1) the severity of the crime at issue, (2) the
immediate threat the suspect poses to the safety of the officer or
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others,

(3)

the

suspect’s

resistance,

if

any,

and

(4)

the

possibility of flight. Dunigan v. Noble, 390 F.3d 486, 493 (6th Cir.
2004). In addition, the Sixth Circuit has found that “[t]here may
be more than one reasonable response to a given situation, and when
this is so, the Fourth Amendment does not require officers to use
the ‘most prudent course of action’ to handle it.” Gaddis v.
Redford

Twp., 364 F.3d 736, 775 (6th Cir. 2004).
In this case, the undisputed evidence establishes that

the Defendant officers were aware that Plaintiff Mayers was on his
way to conduct an illegal drug transaction, that he was armed, and
that he had stated to others that he would commit “suicide by cop”
before he allowed himself to be taken into custody and returned to
prison. Moreover, the evidence, including Plaintiff’s admission in
his complaint, establishes that during the ensuing car pursuit
Mayers brandished his firearm from the window of his car and
pointed it at Defendant Hurst. In addition, when Chief Williams got
out of his car to approach Plaintiff’s Tracker behind the Economy
Inn, Plaintiff pointed his firearm at Williams and thereafter
pointed it at Defendant McCatherens. Finally, Plaintiff in his
letter of July 9, 2014, to Defendant Hurst apologized “for putting
you and your fellow officers in the position of having to shoot
me.” He further admitted that he had contemplated suicide on the
day before the incident giving rise to the complaint but that,
lacking the courage to commit suicide himself, he “devised in my
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miserable mental state to have others do it for me.” (Docket Entry
No. 48-3 at 2).
From

this

uncontroverted

evidence,

the

undersigned

Magistrate Judge finds that no reasonable jury could conclude the
Defendants acted unreasonably in shooting Plaintiff Mayers after
they observed him point his firearm at Chief Williams and Officer
McCatherens.
Plaintiff Mayers also alleges that the Defendants’ use of
pepper spray during his arrest amounted to excessive force under
the Fourth Amendment. Defendant Hurst has admitted that he used
pepper spray to obtain control of Mayers after the shooting and to
prevent Mayers from grabbing a knife with his right hand (Docket
Entry No. 48 at 6). Following use of the pepper spray, Hurst was
able thereafter to secure Mayers with handcuffs behind his back.
The Sixth Circuit has found that the use of nonlethal
pepper spray can be proper in circumstances in which a detainee is
unsecured, acting violently, and posing a threat to himself or
others. Cabaniss v. City of Riverside, 231 F. App’x 470, 413 (6th
Cir. 2007). Here, Mayers was unsecured, refusing to give his hands
to the officers and apparently reaching for a knife when Officer
Hurst used the pepper spray on him. Considering the undisputed
evidence in this case, the undersigned further finds that, under
these circumstances, no reasonable jury could find that Defendant

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Hurst’s use of pepper spray on Plaintiff Mayers was objectively
unreasonable and therefore a violation of the Fourth Amendment.
For the foregoing reasons, the undersigned Magistrate
Judge finds that there is no genuine dispute as to any material
fact and that the moving Defendants are entitled to judgment as a
matter of law.
RECOMMENDATION
For the reasons stated above, the undersigned recommends
that the Defendants’ Motion for Summary Judgment (Docket Entry No.
39) be granted and the complaint dismissed.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said
objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 106 S.
Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 10th day of February, 2016.
/s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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