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October 4, 1993


The opinion of the court was delivered by: THOMAS A. HIGGINS

 The plaintiff, Carl S. Gibson, filed this action for damages under 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(a)(3) against the defendants: City of Clarksville, Tennessee, and city police officers Joe Papastathis, Jay Runyon, Charles Abernathy, Frank Gray, Jerry Gibbs *fn1" and Bill Carney. Gibson's claims are for violations of his Fourth and Fourteenth Amendment rights *fn2" against unreasonable seizures and excessive use of force arising out of his arrest for burglary on January 14, 1991, in Clarksville. The defendant, Papastathis, allegedly permitted his police dog to bite Gibson without justification and to excess. The defendants, Carney, Gray, Runyon and Abernathy, allegedly failed to protect him and allowed the police dog to continue to bite Gibson after he had been handcuffed. The defendant City allegedly authorized and acquiesced in Papastathis' use of excessive force with his police dog by the City's failure to provide adequate training, supervision or review of Papastathis' conduct by his supervisors.

 Pending before the Court is the defendants' motion for summary judgment (Docket Entry No. 26), in which they argue that (1) the facts are insufficient to show any custom or policy by the City that caused Gibson's injury so as to impose § 1983 liability on the City; (2) the facts reflect only proper use of force because Gibson was committing a felony and did not cooperate after prior warning and, in fact, resisted the officers who attempted to arrest him; (3) to the extent any § 1983 excessive force claim is stated, the qualified immunity doctrine bars monetary relief against the defendant officers; (4) Gibson's allegations that defendants Abernathy and Carney failed to report this incident do not state a § 1983 claim, and if they do, then the qualified immunity doctrine bars any award of damages on that claim; (5) Gibson's allegation that defendant Abernathy failed to prevent his injuries does not state a § 1983 claim, and if it does, the qualified immunity doctrine bars an award of damages claim; and (6) Gibson's allegation that defendants Runyon and Gray were guilty of reckless conduct in their arrest of him is insufficient to state a claim upon which the plaintiff can recover.

 For the reasons set forth below, the Court denies the defendants' motion for summary judgment except as to the lack of training and Fourteenth Amendment claims. First, under the applicable law, Gibson's excessive use of force claims are evaluated only under the Fourth Amendment. Second, given the seriousness of Gibson's multiple injuries that required two surgical procedures, material factual disputes exist as to the reasonableness of the defendant officers' use of force. In particular, there are factual disputes as to Gibson's conduct at the time of his arrest, Papastathis' use of the police dog and the acts of the other defendant officers in effecting his arrest by allowing the police dog to continue to bite Gibson after he was handcuffed. As to the City, it designated its police chief to monitor the use of police dogs, and to evaluate Papastathis' use of his dog in arresting Gibson. The police chief's decision that the police officers acted properly was a decision of the City. In addition, there is evidence of ten people having been bitten by Papastathis' dog to the extent that they also required medical treatment, including admission to hospitals. The City had been warned earlier by another police officer that Papastathis would not control his dog. These facts are sufficient to create material factual disputes to impose § 1983 liability against the City in its supervision of its police officers.


 Around 10:00 p.m., on January 14, 1991, Gibson and his brother raised an open window of a church and entered the premises. According to Gibson, he and his brother entered the church to get something to eat. Later, Gibson pleaded guilty to burglary of the church. Within ten to fifteen minutes after entering the church, Gibson became aware of the police outside the church and went to the upper part of the church to avoid them.

 Gibson then left that area of the church and went to a porch roof on the front of the church. There, Gibson broke the window to get out on the porch roof on the side of the church where he lay down on his back. Gray states that warnings were given that the K-9 would be released into the church if Gibson did not surrender. Gibson, who has a hearing impairment from his prior military service, was first unaware of a police dog until the dog followed him through a broken second story window onto the porch roof. The dog first bit Gibson on his left hip. According to Gibson, he was standing when the K-9 first bit him. Gibson was unarmed at the time of his apprehension. Gibson's brother, who was also on the roof, surrendered without incident.

 According to Gibson, when Papastathis arrived at the roof site, *fn4" he handcuffed Gibson from the back, and once Gibson was handcuffed, Papastathis struck him a few times on the back of his head with a stick and let the dog bite him again. The dog bit Gibson repeatedly on his right calf. Runyon claims that he, Frank Gray and Charles Abernathy did not have a clear view of what was occurring on the roof.

 According to Gibson, two other officers whom he cannot identify, arrived at the window to the porch roof and immediately grabbed Gibson by his shoulders and pulled him through the broken window. Gibson wanted to be pulled through the window. Throughout this time, the dog continued to bite and cling to Gibson, who was not resisting. Gibson told the officers that the dog was chewing on his leg as they were pulling him through the window, and the officers could see the dog at the time they pulled the plaintiff through the window. Gibson was taken by ambulance to the hospital for treatment.

 Gibson suffered multiple injuries to his right lower leg that required extensive medical treatment, including two surgical procedures. Gibson underwent skin graft surgery on his right leg to repair the severe muscle damage caused by the dog bite.

 According to Carney, a lieutenant who was the senior officer at the scene, when Papastathis "secured" Gibson, he summoned the other defendants. Defendants Carney, Gray, Runyon and Abernathy entered the porch area and broke out the remaining glass from the second window before pulling Gibson through the window with the dog still chewing on Gibson's right lower leg. During a three-and-a-half year period prior to Gibson's arrest in 1991, Papastathis had been involved in ten incidents that resulted in people being injured by his dog and requiring medical treatment. Four of these people, James Bonter, Frank Mosley, James Milton Pettus and Bruce Gordon Miles, required treatment as in-patients at a hospital facility. Four other people received medical treatment at the hospital, but were released on an out-patient basis.

 The City's final policymaking authority is the city council. The City Code requires that its officers be adequately trained. The policies and procedures of the Clarksville police department are drafted by the chief of police, but the city council must decide to accept or reject them. The chief of police, however, under the city charter and under the Policy and Procedure Manual, in effect in 1991, has the authority to issue orders to amend the policy manual on an interim basis through special orders and directives. The City requires the chief of police to investigate any incident where a police officer is suspected of misconduct and report the same to the city council. City officers who are guilty of misconduct are subject to disciplinary action by the city council.

 Rosson, the City's chief of police since July, 1989, served as deputy chief of police in charge of operations from July, 1987, to July, 1989. As chief of police, Rosson has primary responsibility for internal affairs investigations for the police department. The chief of police, under the Policy and Procedure Manual in effect in 1991, has the authority to issue orders to amend the policy manual on an interim basis through special orders and directives.

 In 1991, General Order No. 9 was issued, requiring photographs to be taken of dog bite injuries of criminal suspects to document the injuries. These photographs are not usually filed with the "use of force" forms because color film sometimes takes weeks to develop.

 In the police department, the chief of police and the deputy chief of police have only initiated an investigation of an injury caused by a police dog when a lawsuit or administrative complaint has been filed. Rosson reviews a "use of force" form to see if there is an injury that suggests excessive force. Rosson also asks the supervisor if everything is proper and, absent a supervisor's statement of a potential problem, Rosson takes no other action. According to Rosson, if he were aware of an incident regarding excessive force, he would probably order an Internal Affairs investigation, after initially requesting additional information, such as the interview of witnesses. Nothing in the police department Policy and Procedures Manual in effect in 1991 requires officers to describe the extent of injuries to a person who has been arrested. There is no routine investigation or briefing with officers or with city administrators with regard to injuries due to use of a police dog.

 Rosson assumes that some type of personal injury will result when a police dog is involved in apprehending a suspect; therefore, he does not always request photographs of the suspect's injuries. Rosson has had no training on the type of injury that should be expected for suspects who are apprehended by a police dog. Rosson claims that he understands what is expected from a K-9 apprehension and, therefore, the mere fact that a criminal suspect is hospitalized for his injuries does not require an inquiry. Nonetheless, Rosson admits that he has never asked for a statement from a person injured by a K-9 on how his injury occurred.

 With respect to Gibson, after the city council was notified of complaints concerning the amount of force used by officer Papastathis, it checked with the chief of police who again reviewed the incident and informed the city that officer Papastathis' conduct had been proper. Rosson reviewed the "use of force" form, the arrest report and supplemental reports, but did not investigate Gibson's injuries. Papastathis was not requested, either verbally or in writing, to provide any additional information on Gibson's injuries to superior officers.

 Gibson also submitted proof from James J. Fyfe, an expert witness who has testified in federal court as an expert on police practices. In Fyfe's opinion, the force used by the defendants was unnecessary and unreasonable under the facts and circumstances of Gibson's arrest. In addition, Fyfe states that the City's policies and practices are inadequate to supervise the police officers who use police dogs, and such lack of supervision caused Gibson's injuries. Fyfe also refers to a letter from a police officer from Nashville to City officials that from his observations, Papastathis allowed the dog to bite a person repeatedly and did not control his dog.


 "The very reason of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Advisory Committee Notes on Rule 56, Federal Civil Judicial Procedure and Rules (West Ed. 1989). Moreover, "district courts are widely acknowledged to possess the power to enter summary judgment sua sponte, so long as the opposing party was on notice that she had to come forward with all of her evidence." Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265, 276 (1986). Accord, Routman v. Automatic Data Processing Inc., 873 F.2d 970, 971 (6th Cir. 1989).

 In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), the United States Supreme Court explained the nature of a motion for summary judgment:

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.
As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.

 Id. at 247-48, 106 S. Ct. at 2509-10, 91 L. Ed. 2d at 211 (emphasis in the original and added in part). Earlier, the Supreme Court defined a material fact for Rule 56 purposes as "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Electrical Industrial Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 552 (1986) (citations omitted).

 There is a certain framework in considering a summary judgment motion as to the required showing of the respective parties.

Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. . . . We find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim.

 Celotex, 477 U.S. at 323, 106 S. Ct. at 2553, 91 L. Ed. 2d at 274 (emphasis added).

 As the Court of Appeals explained, "the moving party bears the burden of satisfying Rule 56(c) standards." Martin v. Kelley, 803 F.2d 236, 239 n.4 (6th Cir. 1986). The moving party's burden is to show "'clearly and convincingly' the absence of any genuine issues of material fact." Sims v. Memphis Processors, Inc., 926 F.2d 524, 526 (6th Cir. 1991). "So long as the movant has met its initial burden of 'demonstrating the absence of a genuine issue of material fact,' the nonmoving party then 'must set forth the specific facts showing that there is a genuine issue for trial.'" Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir. 1989) (quoting Celotex, 477 U.S. at 323, 106 S. Ct. at 2553, 91 L. Ed. 2d at 274 and Fed. R. Civ. P. 56(e)).

 Once the moving party meets its initial burden, the Court of Appeals warned that "the respondent must address more than a scintilla of evidence to overcome the motions [and]. . . must 'present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (quoting Liberty lobby, 477 U.S. at 257, 106 S. Ct. at 2514, 91 L. Ed. 2d at 217). Moreover, the Court of Appeals explained that

The respondent must "do more than simply show that there is some metaphysical doubt as to the material facts." Further, "where the record taken as a whole could not lead a rational trier of fact to find" for the respondent, the motion should be granted. The trial court has at least some discretion to determine whether the respondent's claim is "implausible."

 Street, 886 F.2d at 1480. See also Hutt v. Gibson Fiber Glass Products, 914 F.2d 790 (6th Cir. 1990) (A court deciding a motion for summary judgment must determine "whether the evidence presents a sufficient disagreement to require a submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.") (quoting Liberty Lobby, 477 U.S. at 251-52, 106 S. Ct. at 2512, 91 L. Ed. 2d at 214.)

 If both parties make their respective showings, the Court then determines if the material factual dispute is genuine, applying the governing law.

More important for present purposes, summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.
. . . .
Progressing to the specific issue in this case, we are convinced that the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits. If the defendant in a run-of-the-mill civil case moves for summary judgment or for a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff of the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict -- "whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed."

 Liberty Lobby, 477 U.S. at 251-52, 106 S. Ct. at 2510, 2512, 91 L. Ed. 2d at 211-212, 214 (citation omitted and emphasis added).

It is likewise true that
in ruling on a motion for summary judgment, the court must construe the evidence in its most favorable light in favor of the party opposing the motion and against the movant. Further, the papers supporting the movant are closely scrutinized, whereas the opponent's are indulgently treated.
It has been stated that: "The purpose of the hearing on the motion for such a judgment is not to resolve factual issues. It is to determine whether there is any genuine issue of material fact in dispute. . ."

 Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962) (citation omitted). As the Court of Appeals stated, "all facts and inferences to be drawn therefrom must be read in a light most favorable to the party opposing the motion." Duchon v. Cajon Company, 791 F.2d 43, 46 (6th Cir. 1986) (unpublished opinion) (citation omitted).

 In a recent decision, the Court of Appeals further explained the district court's role in evaluating the proof on a summary judgment motion:

A district court is not required to speculate on which portion of the record the nonmoving party relies, nor is it obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim. Rule 56 contemplates a limited marshalling of evidence by the nonmoving party sufficient to establish a genuine issue of material fact for trial. This marshalling of evidence, however, does not require the nonmoving party to "designate" facts by citing specific page numbers. Designate means simply "to point out the location of." Webster's Third New International Dictionary (1986).
Of course, the designated portions of the record must be presented with enough specificity that the district court can readily identify the facts upon which the nonmoving party relies; but that need for specificity must be balanced against a party's need to be fairly apprised of how much specificity the district court requires. This notice can be adequately accomplished through a local court rule or a pretrial order.

 InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, Superior Roll Forming Co. v. InterRoyal Corp., 494 U.S. 1091, 110 S. Ct. 1839, 108 L. Ed. 2d 967 (1990). Here, the parties have given some references to the proof upon which they rely. Local Rule ...

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