The opinion of the court was delivered by: Chief Judge Curtis L. Collier
This pro se civil rights action for damages under 42 U.S.C. § 1983 was brought by Mickey Williams ("Williams"), a prisoner now confined in the Northeast Correctional Complex in Mountain City, Tennessee. Williams alleges various law enforcement officers used deadly excessive force or failed to intervene to protect him from such force during his apprehension and arrest in Grainger County, Tennessee. Several motions are currently pending, the first of which is an unopposed motion for summary judgment filed by the two remaining defendants, Jeffrey Daniel, a Rutledge, Tennessee police officer, and Michael Hopson, a Blaine City, Tennessee police officer (Ct. File No. 97) . In support of their motion, both defendants offer: a supporting brief; their own affidavits; and copies of Williams' state criminal judgments (Ct. File No. 98, Attachs. 1-3 to Ct. File No. 97).
A motion for summary judgment may be granted "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." Fed.R.Civ.P. 56(C). In considering such a motion, the court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The burden of establishing there is no genuine issue of material fact lies upon the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986). The moving party does not have to offer evidence disproving the nonmoving party's claim but may carry its burden by showing an absence of evidence to support the nonmoving party's case. Id. at 325. A plaintiff facing the prospect of summary adjudication cannot rest on his pleadings or allegations, but instead, must present material evidence in support of those allegations. Id. at 324. Summary judgment is appropriate if a court concludes a fair-minded jury could not return a verdict in favor of a plaintiff based on the evidence presented. Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986).
These are the facts as Williams portrays them in his verified complaint. On March 12, 2001, Williams was at his girlfriend's home, which was on fire and engulfed in thick smoke. Seven officers were present, including Defendant Officers Hopson and Daniels. Williams was ordered to come out of the home, though the only exit was blocked. As Williams choked on the fumes, he pleaded for the officers to help him escape from the burning house. The door opened and Williams threw himself on the porch for the purpose of showing the officers he was unarmed. He was instructed to rise and come away from the burning building.
As Williams rose from the porch, intending to comply with the demand, shots rang out and bullets pierced Williams' leg, groin and buttocks. (He was shot in the buttocks after he fell to the ground and rolled over.) Williams learned later Chief Deputy Randy Holt of the Granger County Sheriff's Department,*fn1 had shot him four times without reason, while the other officers stood by and did nothing to protect him from being shot. He had complied with the officers' orders and, at the time he was ordered to rise and come away from the burning building, he had no weapons on his person. The officers' actions, according to Williams, amounted to unnecessary and excessive force and, thus, violated the United States Constitution. For this alleged infringement of his civil rights, Williams seeks compensatory and punitive damages.
The Defendants' affidavits lend context to Williams' account of the incident. Defendant Hopson avers he was dispatched to the residence of Terry Johnson, who was believed to have been killed by Williams. Upon his arrival, he observed Williams on the front porch of the Johnson home brandishing two knives, while officers at the scene urged Williams to let them enter the home to assist Johnson. Williams refused these requests; replied he had already killed Johnson; entered the home; barricaded the door; and set the house afire.
Several minutes later, Williams asked the officers to kick the door open because he could not get it to open. An officer kicked open the front door, and Williams emerged, crawling out on the front porch, with a knife in his hand. Williams was ordered to drop his weapon, but instead he ran towards Chief Deputy Holt brandishing the knife, in an aggressive and threatening manner. Holt then shot Williams. At the time of the shooting, both Williams and Holt were at a considerable distance from Defendant Hopson.
Defendant Daniels, in his affidavit, makes the following averments. He was called to the Johnson home to look into a reported fight and encountered Williams at a neighboring home. Seeing blood on Williams, Defendant Daniels asked him "what was going on." Williams responded he was not going to jail; pulled out a knife; held it in a threatening manner; and, with another officer in pursuit, ran around the house and into the Johnson home, which he then set on fire. A fire truck arrived, and Defendant Daniels commenced to move the police vehicles to give the fire truck closer access to the home. As he completed this chore, Defendant Daniels observed officers kick in the door and Williams crawl out the door and onto the front porch. Defendant Daniels then saw Williams stand up, holding two knives, and, disregarding Chief Deputy Holt's orders to stop, lunge at the Chief Deputy. The Chief Deputy fired his weapon from 15 to 25 feet away. At this time, Defendant Daniels was "a considerable distance" from both Williams and Chief Deputy Holt.
In the summary judgment motion, Defendants Hopson and Daniels argue they are entitled to summary judgment because the undisputed evidence shows the use of force was reasonable and because, in any event, they were in no position to prevent the use of such force. Alternatively, they suggest they are entitled to summary judgment because they enjoy qualified immunity from liability.
Before turning to the first argument, the Court notes these defendants are subject to suit for monetary damages in their official capacities under § 1983 only if Williams shows he has suffered harm because of a constitutional violation and the harm was caused by a policy or custom of the entity--in this case, Blaine City and the City of Rutledge. See Collins v. Harker Heights, Tex., 503 U.S. 115, 120 (1992). In other words, Williams must identify the policy, connect the policy to the cities, and show that the particular injury was incurred because of the execution of that policy-none of which Williams has done. See Garner v. Memphis Police Dept. 8 F.3d 358, 363-64 (6th Cir. 1993), cert. denied, 510 U.S. 1177 (1994) (citation omitted). Thus, to the extent Williams was attempting to assert claims against ...