Rossell v. Armstrong et al

Filing 35

MEMORANDUM OPINION AND ORDER GRANTING 25 Motion for Summary Judgment. Signed by Judge Thomas L. Parker on 4/13/2018. (Parker, Thomas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

MARICO TREMAYNE ROSSELL
Plaintiff,
v.
TONEY ARMSTRONG, et al.,
Defendants.

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No. 2:14-cv-02737-TLP-dkv
JURY DEMAND

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

Before the Court is the Motion for Summary Judgment filed on April 12, 2017 (ECF No.
25), by Defendants, Former Memphis Police Officer Brett A. Murphy and Memphis Police Officer
Jason W. Williford (individually referred to as “Murphy” and “Williford,” and collectively as
“Defendants”). For the following reasons, the Motion is GRANTED.
BACKGROUND
I.

Procedural History
On September 19, 2014, pro se Plaintiff Marico Tremayne Rossell (“Plaintiff”), who, until

recently was an inmate at the South Central Correctional Facility in Clifton, Tennessee, filed his
pro se Complaint against Defendants, Retired Memphis Police Chief Toney Armstrong, and a
“John Doe” Memphis Police Internal Affairs Officer Defendant, claiming violations of his
constitutional rights and seeking relief under 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff alleges that
Defendants, Williford in particular, used excessive force in effecting Plaintiff’s arrest on
September 17, 2013, and that Defendants denied Plaintiff adequate medical treatment after his

arrest, which violated his Eighth and Fourteenth Amendment rights under the U.S. Constitution.
(Id. at PageID 7.) The Court granted Plaintiff leave to proceed in forma pauperis (ECF No. 5),
and subsequently dismissed portions of the Complaint and directed that process be served on
Murphy and Williford, the remaining Defendants. (ECF No. 7.) Murphy is no longer employed
with MPD, but Williford is. (ECF Nos. 25-3, 25-4.) Williford filed his Answer on April 28, 2016,
and Murphy filed his Answer on December 5, 2016. (ECF No. 23.)
On April 12, 2017, Defendants jointly filed a Motion for Summary Judgment (“Motion”),
arguing that Defendants did not violate Plaintiff’s constitutional rights and that Defendants are
entitled to qualified immunity from suit. (ECF No. 25.) There was no further activity in this case
until it was transferred to the Undersigned on February 26, 2018 (ECF No. 26), and this Court
issued a Writ of Habeus Corpus ad testificandum ordering that Plaintiff appear on March 22, 2018
for a Status Conference with Defendants. (ECF Nos. 28, 29.) At the Status Conference, the Court
ordered Plaintiff to file a response to Defendants’ Motion for Summary Judgment by April 3, 2018.
(ECF No. 33.)
On March 29, 2018, Plaintiff filed a “Show Cause Order,” purportedly as his response to
Defendants’ Motion for Summary Judgment (hereinafter referred to as Plaintiff’s “Response”).
(ECF No. 34.) Plaintiff’s Response expands Plaintiff’s account of Defendants’ alleged conduct
during the course of Plaintiff’s arrest on September 17, 2013, but it fails to cite any law or rebut
material facts introduced through the sworn statements attached to Defendants’ Motion.
II.

Factual Background
The Court draws the following facts from Williford and Murphy’s Affidavits and those

contained in Plaintiff’s Response.

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On September 17, 2013, Williford observed Plaintiff driving without his seatbelt on and
attempted to initiate a traffic stop. (ECF No. 25-3 at PageID 116.)1 Plaintiff did not stop when
Williford activated his blue lights and sirens; instead, he drove slowly for a distance, turned on
Tunica Street, and pulled into the driveway of 1439 Tunica Street, Memphis, Tennessee. (ECF
No. 25-3 at PageID 116; ECF No. 34 at PageID 141.) Plaintiff was unable to produce a driver’s
license and smelled strongly of alcohol, so Williford asked him to step out of his vehicle to be
detained in order for Williford to identify him and investigate the source of the smell. (ECF No.
25-3 at PageID 116; ECF No. 34 at PageID 142.)
While Williford was patting down Plaintiff and checking his pockets, Plaintiff reached into
his pocket, pulled out a bag of cocaine, and tried to throw it onto the vehicle’s windshield. (ECF
No. 25-3 at PageID 116; ECF No. 34 at PageID 141.) Plaintiff does not dispute Defendants’ sworn
statements that, at this time, Plaintiff began resisting Williford’s attempts to detain him and tried
to flee. (ECF No. 25-3 at PageID 117; ECF No. 25-4 at PageID 121.) Plaintiff’s attempts to flee
involved turning toward Williford and placing his arms around his waist, at which time Williford
punched Plaintiff in the face three times with his closed fist. (ECF No. 25-3 at PageID 117; ECF
No. 34 at PageID 142.) Immediately following this struggle, Murphy assisted Williford by placing
Plaintiff in an arm lock in order to subdue Plaintiff and place him under arrest. (ECF No. 25-4 at
PageID 121.) Plaintiff sustained a bloody lip during the struggle but did not request medical
transport. (ECF No. 25-3 at PageID 117; ECF No. 34 at PageID 142.) Plaintiff was then
transported to the Shelby County Jail located at 201 Poplar Avenue, Memphis, Tennessee. (ECF
No. 25-3 at PageID 117.)

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It is unclear but immaterial whether Plaintiff disputes that he was wearing his seatbelt, but this
is immaterial to the Court’s analysis. (See ECF No. 34 at PageID 141.)
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LEGAL STANDARDS
“The 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); see also Chapman v. UAW Local 1005, 670 F.3d 677, 680 (6th Cir. 2012). “A fact
is material for purposes of summary judgment if proof of that fact would establish or refute an
essential element of the cause of action or defense.” Bruederle v. Louisville Metro Gov’t, 687 F.3d
771, 776 (6th Cir. 2012) (internal quotation marks omitted). “A dispute over material facts is
‘genuine’ ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986)). “When the non-moving party fails to make a sufficient showing of an
essential element of his case on which he bears the burden of proof, the moving parties are entitled
to judgment as a matter of law and summary judgment is proper.” Chapman, 670 F.3d at 680
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986));
accord Kalich v. AT & T Mobility, LLC, 679 F.3d 464, 469 (6th Cir. 2012).
“The moving party bears the initial burden of demonstrating the absence of any genuine
issue of material fact.” Mosholder v. Barnhardt, 679 F.3d 443, 448 (6th Cir. 2012) (citing Celotex
Corp., 477 U.S. at 323, 106 S.Ct. 2548). “Once the moving party satisfies its initial burden, the
burden shifts to the nonmoving party to set forth specific facts showing a triable issue of material
fact.” Id. at 448-49 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
106 S.Ct. 574, 89 L.Ed.2d 538 (1986) (emphasis added)).
“To withstand summary judgment, the nonmovant must present sufficient evidence to
create a genuine issue of material fact.” Whitehead v. Bowen, 301 Fed. App’x 484, 487 (6th Cir.
2008) (citing Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548). A court must draw all reasonable

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inferences in favor of the nonmoving party. Phelps v. State Farm Mut. Auto. Ins. Co., 680 F.3d
725, 730 (6th Cir. 2012) (citing Matsushita, 475 U.S. at 587, 106 S.Ct. 574). “The central issue is
‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law.’” Id. (quoting Anderson, 477 U.S.
at 251–52, 106 S.Ct. 2505). “[A] mere ‘scintilla’ of evidence in support of the non-moving party’s
position is insufficient to defeat summary judgment; rather, the nonmoving party must present
evidence upon which a reasonable jury could find in [his or] her favor.” Tingle v. Arbors at
Hilliard, 692 F.3d 523, 529 (6th Cir. 2012) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505).
Pleadings and documents filed by pro se litigants are to be “liberally construed,” and pro
se complaints are held to a less stringent standard than those drafted by lawyers. Cage v. Shelby
Cty., Tenn., No. 14-2290-JDT-CGC, 2014 WL 5795544, at *3 (W.D. Tenn. Nov. 6, 2014)
(citations omitted). But the leniency accorded to pro se litigants has its limits, and “when a pro se
litigant fails to comply with an easily understood court rule, the Court need not treat him any
differently than a represented litigant.” Brittenham v. Dinsa, No. CIVA 10-10257, 2010 WL
1576842, at *1 (E.D. Mich. Apr. 20, 2010) (complaints subject to dismissal for failure to comply
with Fed. R. Civ. P. 11(a)) (internal quotation marks and citations omitted). Pro se litigants and
prisoners are not exempt from the Federal Rules of Civil Procedure. Herron v. Barlow, No. 152145-JDT-DKV, 2016 WL 1448883, at *2 (W.D. Tenn. Apr. 12, 2016).
ANALYSIS
The Court reads Plaintiff’s Complaint to bring claims under 42 U.S.C. § 1983 for violations
of the Eighth and Fourteenth Amendments to the U.S. Constitution. (ECF No. 1 at PageID 7.) “In
addressing an excessive force claim brought under § 1983, analysis begins by identifying the
specific constitutional right allegedly infringed by the challenged application of force.” Graham

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v. Connor, 409 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). All of Plaintiff’s claims
arise from Defendants’ alleged use of excessive force during Plaintiff’s arrest and their failure to
provide Plaintiff with adequate medical treatment shortly thereafter. (See ECF No. 1 at PageID
7.) Defendants’ Motion argues that there is no genuine issue of material fact and that they are
entitled to judgment as a matter of law as to Plaintiff’s excess force claim. Defendants’ Motion
does not address Plaintiff’s claim that Defendants failed to provide adequate medical treatment;
however, the Court’s analysis covers both of these claims.
Plaintiff’s excessive force allegations implicate the Fourth Amendment, and not the Eighth
Amendment, because they occurred during his arrest. “The Fourth Amendment’s prohibition
against unreasonable seizures of the person applies to excessive-force claims that arise in the
context of an arrest or investigatory stop of a free citizen, while the Eighth Amendment’s ban on
cruel and unusual punishment applies to excessive-force claims brought by convicted criminals
serving their sentences.” Aldini v. Johnson, 609 F.3d 858, 864 (6th Cir. 2010) (quoting Graham,
409 U.S. at 394, 109 S.Ct. 1865) (Fourth Amendment); Whitley v. Albers, 475 U.S. 312, 318-322,
106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (Eighth Amendment) (internal quotation marks and citation
omitted)). An arrestee does not enjoy protection under the Eighth Amendment. Plaintiff’s
Complaint fails to state a plausible claim for relief under the Eighth Amendment, see Ctr. For BioEthical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir. 2011); Fed. R. Civ. P. 8, and his
purported response does nothing to support his Eighth Amendment claim.
The Court also reviews Plaintiff’s claim that Defendants failed to provide adequate medical
treatment under the Fourth Amendment. The Sixth Circuit has never “squarely decided whether
the Fourth Amendment’s objective reasonableness standard can ever apply to a plaintiff’s claims
for inadequate medical treatment.” Esch v. Cty. of Kent, 699 F. App’x 509, 514 (6th Cir. 2017)

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(finding it unnecessary to determine whether Fourth or Fourteenth Amendment applies because
plaintiff’s claims fail under both the deliberate indifference and objective reasonableness
standards) (citations omitted); see Hammond v. Lapeer Cty., 133 F. Supp. 3d 899, 914 (E.D. Mich.
2015) (“The Fourth Amendment protects an individual arrested without a warrant from acts of
excessive force [from the time of arrest] through the probable cause hearing, at which time the
protections of the Fourteenth Amendment will apply.”); see also Aldini, 609 F.3d at 867 (joining
the Ninth and Tenth Circuits in setting probable-cause hearing as dividing line between Fourth and
Fourteenth Amendment zones of protection).
This analysis is actually beneficial to Plaintiff because the Fourth Amendment’s objective
reasonableness test is a less stringent standard for a plaintiff to meet than the deliberate indifference
tests under the Eighth and Fourteenth Amendments. Smith v. Erie Cty. Sheriff’s Dep’t, 603 F.
App’x 414, 419 (6th Cir. 2015) (quoting Darrah v. City of Oak Park, 255 F.3d 301, 307 (6th Cir.
2001); citing Napier v. Madison Cty., Ky., 238 F.3d 739, 742 (6th Cir. 2001) (drawing similarities
under Eighth and Fourteenth Amendments)) (internal quotation marks and citation omitted).
“[B]ehavior that does not arise to the level of a Fourth Amendment violation cannot offend the
Fourteenth.” Id. (finding that if defendants acted reasonably under Fourth Amendment, there can
be no violation of more burdensome deliberate indifference standard under Fourteenth
Amendment) (citing Wilson v. Spain, 209 F.3d 713 (8th Cir. 2000)). However, despite the Fourth
Amendment’s less stringent test, Defendants have established that there is no genuine issue of
material fact and that they are entitled to judgment as a matter of law as to Plaintiff’s claims.

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I.

Use of Excessive Force
The Fourth Amendment requires that an officer’s use of force be objectively reasonable

when effectuating a seizure of a person. Graham, 490 U.S. at 395, 109 S.Ct. 1865. This analysis
is flexible and “not capable of precise definition or mechanical application,” id. at 396, 109 S.Ct.
1865 (internal quotation marks and citation omitted), but amounts to a determination of whether
the totality of the circumstances justifies the seizure. Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct.
1694, 85 L.Ed.2d 1 (1985). This flexible determination is an objective one, “considered from the
perspective of a hypothetical reasonable officer in the defendant’s position and with his knowledge
at the time, but without regard to the actual defendant’s subjective intent when taking his actions.”
Latis v. Phillips, 878 F.3d 541, 547 (6th Cir. 2017). Factors to be considered in determining
whether the force applied in the seizure was unreasonable include “the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempted to evade arrest by flight.” Graham, 490 U.S.
at 396, 109 S.Ct. 1865. These factors help the court ultimately determine whether “the officer
ha[d] probable cause to believe that the suspect pos[ed] a threat of serious physical harm, either to
the officer or to others.” Garner, 471 U.S. at 11, 105 S.Ct. 1694; see also Foster v. Patrick, 806
F.3d 883, 887 (6th Cir. 2015).
Here, even in viewing the evidence in the light most favorable to Plaintiff, the Court finds
that an objectively reasonable officer with Williford’s knowledge and in his position would have
had probable cause to believe that Plaintiff posed a threat of serious physical harm to Defendants.
Plaintiff smelled strongly of alcohol and removed his hand from his vehicle and placed it into his
pocket during a pat down. (ECF No. 25-3 at PageID 116; ECF No. 34 at PageID 142.) There is
no evidence in the record to show that Williford knew what was in Plaintiff’s pocket when Plaintiff

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put his hand in it, which would understandably provide probable cause to believe that Plaintiff
posed a threat of serious physical harm to Williford and Murphy.
After removing his hand from his pocket, Plaintiff turned towards Williford, placing his
arms near Williford’s waist, and attempted to flee. (ECF No. 25-3 at PageID 117; ECF No. 25-4
at PageID 121.) Considering the Graham factors and the totality of the circumstances, it was
objectively reasonable for Williford punch Plaintiff in the face three times in order to subdue him
and place him under arrest. It is notable that Williford did not use any chemical spray, his baton,
or his service weapon, and there is sufficient evidence to show that he was making a split-second
decision. “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.” Graham,
490 U.S. at 396–97, 109 S.Ct. 1865. Given Plaintiff’s actions and his proximity to Williford,
Defendants’ use of force in punching Plaintiff and then placing him in an arm lock were objectively
reasonable, and Defendants’ did not use excessive force in arresting Plaintiff.
The only conceivable factual dispute that Plaintiff’s Response contains is the statement that
“Officer Williford continued to use excessive force and assaults while [O]fficer Murphy held
[P]laintiff[‘s] hands behind his back.” (ECF No. 34 at PageID 142.) Such a conclusory statement
“unadorned with supporting facts [is] insufficient to establish a factual dispute that will defeat
summary judgment.” Alexander v. CareSource, 576 F.3d 551, 559 (6th Cir. 2009) (citing Lewis
v. Philip Morris Inc., 35 F.3d 515, 533 (6th Cir. 2004); Doren v. Battle Creek Health Sys., 187
F.3d 595, 598–99 (6th Cir. 1999) (parenthetical citations omitted)). Plaintiff’s Response thus fails
to raise a genuine issue of material fact, further making summary judgment appropriate.

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Defendants’ Motion for Summary Judgment is GRANTED as to Plaintiff’s Fourth Amendment
claim for use of excessive force.
Defendants also raise the defense of qualified immunity in their Motion. (ECF No. 25-1
at PageID 104.) “Qualified immunity is a shield to § 1983 liability and, when raised, the burden
to show that a defendant is not entitled to qualified immunity shifts to a plaintiff.” Smith, 603 Fed.
App’x at 418 (citing Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009)). “To show
that qualified immunity is not warranted, a plaintiff must show that: (1) undisputed evidence gives
rise to a constitutional violation; and (2) the right was clearly established at the time of the
incident.” Id. (citing Hensely v. Gassman, 693 F.3d 681, 687 (6th Cir. 2012); Saucier v. Katz, 533
U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). “Qualified immunity must be granted if
the plaintiff cannot establish each of these three elements.” Radvansky v. City of Olmsted Falls,
395 F.3d 291, 302 (6th Cir. 2005) (citing Williams ex rel. Allen v. Cambridge Bd. of Educ., 370
F.3d 630, 636 (6th Cir. 2004)). The Court finds that Defendants are also entitled to qualified
immunity because of its determination that Plaintiff suffered no constitutional violation, see
Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (stating that first
step in qualified immunity analysis is to determine whether officer’s conduct violated
constitutional right), and Plaintiff’s Response fails to address Defendants’ qualified immunity
defense. For these reasons, Defendants’ Motion is GRANTED on the basis of their qualified
immunity defense.
II.

Failure to Provide Medical Treatment
The Court examines Defendants’ alleged failure to provide Plaintiff with adequate medical

treatment under the Fourth Amendment’s objectively reasonable standard. In Esch, the Sixth
Circuit relied on the Seventh Circuit’s standard of review for inadequate medical care cases,

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Four factors inform our determination of whether an [official’s] response to [a
plaintiff’s] medical needs was objectively unreasonable: (1) whether the officer
has notice of the detainee’s medical needs; (2) the seriousness of the medical need;
(3) the scope of the requested treatment; and (4) police interests, including
administrative, penological, or investigatory concerns. [Williams v. Rodriguez,
509 F.3d 392, 403 (7th Cir. 2007)]. [The plaintiff] must also show that the
defendants’ conduct caused the harm of which she complains. See Gayton v.
McCoy, 593 F.3d 610, 620 (7th Cir. 2010) . . . . “[T]he severity of the medical
condition under this standard need not, on its own, rise to the level of objective
seriousness required under the Eighth and Fourteenth Amendments. Instead,
the Fourth Amendment’s reasonableness analysis operates on a sliding scale,
balancing the seriousness of the medical need with the third factor—the scope of
the requested treatment.” 509 F.3d at 403.
Esch, 699 F. App’x at 515 (quoting Ortiz v. City of Chicago, 656 F.3d 523, 530–31 (7th Cir.
2011)). Like Plaintiff’s excess force claim, this Court reviews the inadequate medical treatment
claim under “the totality of the circumstances, analyzing the facts ‘from a perspective of a
reasonable [official in either Williford or Murphy’s position], rather than with the 20/20 vision of
hindsight.’” Darrah, 255 F.3d at 307 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865).
Here, the only evidence before the Court regarding Plaintiff’s medical condition is that
Plaintiff suffered from a bloody lip after his struggle with Williford. (ECF No. 25-3 at PageID
117; ECF No. 25-4 at PageID 122.) It is also undisputed that Plaintiff did not request medical
attention during any time relevant to his claim. (ECF No. 25-3 at PageID 117; ECF No. 25-4 at
PageID 122; ECF No. 34 at PageID 142.) Plaintiff appears to argue that he did not request medical
attention because he was afraid to speak up, purportedly because Williford threatened to charge
him with assault and knew that Plaintiff was on parole. (ECF No. 34 at PageID 142.) However,
neither Williford’s nor Murphy’s subjective intentions are relevant to the Court’s Fourth
Amendment inquiry. See Esch, 699 Fed. App’x at 513; Aldini, 609 F.3d at 865. There are no
genuine issues of material fact regarding Plaintiff’s inadequate medical treatment claim, and the
Court finds that Defendants’ actions were objectively reasonable under the Fourth Amendment.

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In light of Defendants’ Motion and the evidence before the Court, the Court GRANTS sua
sponte summary judgment in favor of Defendants as to Plaintiff’s Eighth Amendment claim. See
Smith, 603 F.3d at 422-23 (finding “no abuse of discretion in a sua sponte grant [of summary
judgment] if the losing ‘party was on notice that he had to muster the necessary facts to withstand
summary judgment,’ Excel Energy, Inc. v. Cannelton Sales Co., 246 Fed. App’x 953, 959–60 (6th
Cir. 2007), and had a reasonable opportunity to respon[d]” Bennett v. City of Eastpointe, 410 F.3d
810, 816 (6th Cir. 2005)). Plaintiff has had well over one year of notice and an opportunity to
respond to Defendants’ Motion and has failed to do so. Plaintiff’s Response does not create any
genuine issue of material fact or respond in any way to Defendants’ legal arguments.
CONCLUSION
Here, the Court finds that Defendants have carried their burden as the movants to show that
there is no genuine issue of material fact and that they are entitled to judgment as a matter of law.
For the foregoing reasons, Defendants’ Motion for Summary Judgment is GRANTED.
Judgment in favor of Defendants will follow the entry of this Order.
SO ORDERED, this 13th day of April, 2018.
s/ Thomas L. Parker
THOMAS L. PARKER
UNITED STATES DISTRICT JUDGE

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A