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Lowe v. Henson

July 11, 2007

CHUCKY LOWE, SR. AND CHUCKY LOWE, JR., PLAINTIFFS,
v.
SAM HENSON, SPD; DAVID JOYNER, DRUG TASK FORCE; AND KEVIN BUSH, SPD, DEFENDANTS.



The opinion of the court was delivered by: Thomas W. Phillips United States District Judge

MEMORANDUM AND OPINION

In the matter before the Court, plaintiffs pursue a federal cause of action under 42 U.S.C. § 1983, as well as various related federal and state law claims. The defendants have filed motions for summary judgment [Docs. 40 and 42] asserting that the plaintiffs' claims, in their entirety, should be dismissed pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiffs have responded in opposition, and the defendants have filed replies and sur-replies. For the reasons that follow, defendants' dispositive motions [Docs. 40 and 42] are GRANTED as set forth below.

I. Summary of the Facts

As the law requires, all disputed facts and inferences are resolved most favorably for the plaintiffs. The Court merely provides an abridged summary of facts for the purposes of this opinion.

On May 10, 2004, defendant Agent David Joyner ("Agent Joyner") and a confidential informant ("CI") arranged for plaintiff Chucky Lowe, Jr. ("Lowe, Jr.") to make a purchase of what he thought was oxycontin, a controlled substance. Specifically, Lowe, Jr. believed that he was to purchase 200 doses of oxycontin at a price of $6,000 from Agent Joyner.

The exchange was to take place at an Exxon in Sevierville, Tennessee. However, when Lowe, Jr. and his father, plaintiff Chucky Lowe, Sr. ("Lowe, Sr."), arrived at the Exxon, they directed Agent Joyner and the CI, who were in a separate vehicle, to follow them to a different location, Stan Crestwell's Market.*fn1 At Stan Creswell's Market, Lowe, Jr. got out of his vehicle and into the CI's vehicle, placing himself directly behind Agent Joyner. Lowe, Jr. then directed the CI to drive to Layman's Market Car Wash. Lowe, Sr. followed in his vehicle. During the drive, Agent Joyner delivered 200 doses of fake oxycontin to Lowe, Jr. in exchange for $6,000. While discussing business, Lowe, Jr. displayed a small handgun. Lowe, Jr. claims that the handgun fell out of his pant waist band and that the gun was brought only because he was "nervous." However, Agent Joyner states that Lowe, Jr. pointed the gun at his back and threatened him. Before leaving the vehicle, Lowe, Jr. discussed a future transaction with Agent Joyner for more doses of oxycontin.

Due to technical difficulties, the "bust" did not occur at the end of the transaction as planned; rather, the agents regrouped immediately after the transaction, contacted the Assistant District Attorney, and were advised to proceed to Lowe, Sr.'s residence to secure the subjects. Agent Joyner then enlisted the help of defendant Agent Sam Hinson ("Agent Hinson") and defendant Agent Kevin Bush ("Agent Bush") for the arrests of the plaintiffs. At approximately 8:30 p.m., agents arrived at Lowe, Sr.'s home, where both Lowe, Jr. and Lowe, Sr. were located.*fn2 The agents set off a distraction device to facilitate their entry into the residence. After this point, the plaintiffs' and the defendants' recollection of the events widely differs. According to the plaintiffs, Agent Bush entered the residence first with a rifle and gave verbal commands. Agent Bush then placed the long barrel of his gun to the back of Lowe, Jr.'s neck with sufficient force to leave marks. Plaintiffs also assert that Agent Joyner and/or Agent Hinson kicked Lowe, Jr. in the face and/or back and tore his shirt. While the alleged beating occurred, Lowe, Jr. alleges that Agent Joyner exclaimed "I'll break you from pulling a gun on an officer." Lowe, Jr. admits that he was "moving around" when the beating occurred. At some point during the altercation, the agents placed handcuffs on Lowe, Jr. and escorted him outside. When moving Lowe, Jr. outside, Lowe, Jr. asserts that Agent Hinson intentionally tripped him while in handcuffs.*fn3 However, in his deposition, Lowe, Jr. concedes that he is not certain what caused him to trip forward.

As to Lowe, Sr., the complaint and affidavit of Lowe, Sr. states that Lowe, Sr. was handcuffed by Agent Bush and placed face down on the living room floor. Then he was lifted by his handcuffed hands and kicked/pushed in the back when attempting to comply with the agent's order. The kick caused Lowe, Sr. to fall to the ground resulting in lacerations to his face and left knee.*fn4

Defendants strongly dispute the plaintiffs' account of the events. Defendants claim that Agent Bush did not hold a gun to the plaintiff's neck, in particular, nor has Agent Bush ever held a gun close to anyone in that the individual could always grasp the gun causing a problematic situation. Further, both Agent Joyner and Agent Bush deny any physical contact whatsoever with the plaintiffs during the raid. Agent Hinson states that he was the agent who handcuffed both plaintiffs and moved them outside. Nevertheless, Agent Hinson asserts that the force he exerted was reasonable under the circumstances. Upon entering the trailer, Agent Hinson claims that Lowe, Jr. was "flailing and moving about clearly resisting the arrest efforts of the officers in the trailer." In fact, Lowe, Jr. was "on his knees, raising up and disobeying the officers' commands to get on the floor." Agent Hinson also asserts that a handgun was within close proximity to Lowe, Jr. Recognizing this danger, Agent Hinson states that he "ran to Lowe, Jr., wrapping him up from behind, and brought him to the floor."

Lowe, Sr. signed a consent form for the search of his residence, although the plaintiffs assert that the consent was not voluntary. The 200 doses of counterfeit oxycontin were uncovered, as well as small amounts of drugs and the firearm. As a result of the incidents on May 10, 2004, both Lowe, Sr. and Lowe, Jr., received criminal charges. Both of the plaintiffs pled guilty to all charges, including drug related charges, aggravated assault (on Agent Joyner), unlawful possession of a weapon, and resisting arrest.

Plaintiffs thereafter filed this complaint in state court asserting claims of excessive force, assault and battery, trespass to home, unlawful search/seizure, conspiracy to violate civil rights, official oppression/official misconduct, and violations of the Tennessee Constitution. The defendants then removed the subject suit to this District Court.

II. Law applicable to Rule 56 of the Federal Rules of Civil Procedure

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment will be granted by a court only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to conclusively show that no genuine issue of material fact exists. A court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Morris v. Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir.1997); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987).

Once the moving party presents evidence sufficient to support a motion under Rule 56 of the Federal Rules of Civil Procedure, the nonmoving party is not entitled to a trial simply on the basis of allegations. The non-moving party is required to come forward with some significant probative evidence, which makes it necessary to resolve the factual dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party is entitled to summary judgment if the non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof. Celotex, 477 U.S. at 323; Collyer v. Darling, 98 F.3d 220 (6th Cir.1996).

III. Motion for Summary Judgment and ...


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