The opinion of the court was delivered by: Magistrate Judge Lee
Before the Court is the joint motion for summary judgment filed by Defendants, McMinn County, Tennessee ("McMinn County"); Sheriff Steve Frisbee ("Frisbee"); Sergeant Greg Walker ("Walker"); Deputy Benji Jorgenson ("Jorgenson") and Deputy J. P. Allman ("Allman") [Doc. No. 43] and a brief in support thereof [Doc. No. 43-2].*fn1 Plaintiff, Paul M. Warner, Jr., has filed a response in opposition to Defendants' motion for summary judgment [Doc. Nos. 47].
In addition, on September 13, 2007, the Court ordered the Defendants to file a supplement to their summary judgment motion addressing the impact of a recent decision of the Sixth Circuit, Powers v. Hamilton County Public Defender Com'n, ___ F.3d ___, 2007 WL 2428315 (6th Cir. Aug. 29, 2007), on Defendants' argument that it should be granted summary judgment under the favorable-termination doctrine set forth in Heck v. Humphrey, 512 U.S. 477 (1994) [Doc. No. 48]. In response, Defendants filed a motion to file their supplement late [Doc. No. 49] and a supplement [Doc. No. 50]. Plaintiff has filed a reply to Defendants' supplement [Doc. No. 55].
Consequently, the motions are now ripe for review. For the reasons set forth below, Defendants' motion to file their supplement late [Doc. No. 49] will be GRANTED and Defendants' motion for a summary judgment [Doc. No. 43] will be GRANTED IN PART and DENIED IN PART as follows:
(1) that aspect of the Defendants' motion which seeks summary judgment on Plaintiff's § 1983 claims of unconstitutional seizure (false arrest) will be GRANTED and those claims will be DISMISSED WITH PREJUDICE;
(2) that aspect of Defendants' motion which seeks summary judgment on Plaintiff's § 1983 claims of excessive force will be DENIED and those claims will proceed to trial; and
(3) that aspect of Defendants' motion which seeks summary judgment on Plaintiff's claims against McMinn County and the individual Defendants in their official capacities, including the remaining claim against Frisbee, is GRANTED and those claims will be DISMISSED WITH PREJUDICE.
II. Procedural and Factual Background
Plaintiff brought this action against Defendants on December 30, 2004, pursuant to 42 U.S.C. § 1983 [Doc. No. 1-1, ¶ 1]. He asserts claims of excessive force and unlawful seizure in violation of his rights under the Fourth, Eighth, and Fourteenth Amendments to the Constitution of the United States as well as pendent state law claims of battery, false arrest, malicious prosecution, and unlawful seizure [id., ¶ 20].
In his complaint, Plaintiff alleges he was making an emergency drive to aid his father, who had gone into a diabetic coma, on January 4, 2004 [id., ¶ 9]. According to Plaintiff, while driving with his flasher lights blinking, he stopped for a red light at the intersection of Madison and south White Street in Athens, Tennessee, which is located in McMinn County [id.,¶¶ 9, 10].
Plaintiff alleges Walker, Jorgenson, and Allman of the McMinn County sheriff's department, turned a spotlight on Plaintiff's vehicle and approached it with their weapons drawn [id. at ¶¶ 10, 11]. Plaintiff alleges he tried to explain the nature of the emergency to Walker, Jorgenson, and Allman, but they continued to point their weapons at him, and Plaintiff exited his vehicle and placed his hands on top of the automobile [id., ¶ 12]. Plaintiff alleges one of the three officers then began kicking his feet, jerked him around, and threw him to the pavement [id., ¶ 13]. Next, Plaintiff alleges he was handcuffed while Walker and Jorgenson were on his back, placed in a headlock by Allman who began hitting him with his fists, and sprayed by Allman with a chemical weapon despite already being handcuffed [id., ¶¶ 13-15]. Plaintiff claims that, as the result of the excessive force used by Allman, Jorgenson, and Walker during and subsequent to his arrest, he has "sustained severe, disabling and permanent injuries to wrists and face and has experienced humiliation, emotional distress, pain and suffering, has incurred substantial medical expenses, has lost income and will lose income in the future." [Id., ¶ 16].
Plaintiff also alleges Allman, Jorgenson, and Walker were acting under color of state (Tennessee) law on behalf of Defendants Frisbee and McMinn County [id., ¶ 17]. He further alleges the abuse he suffered was an institutionalized practice which was known to and ratified by Frisbee and McMinn County [id.]. Plaintiff further alleges Frisbee and McMinn County had prior notice of the propensities of Allman, Jorgenson, and Walker and took no action to stop their abuses and failed to properly train Allman, Jorgenson, and Walker resulting in his injuries [id., ¶¶ 18, 19]. Plaintiff seeks punitive damages, compensatory damages for the alleged violation of his civil rights, excessive force, harassment, lost income, permanent injuries, and emotional, and mental anguish, and attorney's fees.
On August 4, 2005, Frisbee filed a first motion for summary judgment [Doc. No. 23]. On November 10, 2005, the Court granted Frisbee's partial summary judgment and dismissed with prejudice: (1) Plaintiff's pendent state law claims of battery, false arrest, malicious prosecution and unlawful seizure against Frisbee; (2) Plaintiff's claims of excessive force and unconstitutional seizure against Frisbee under 42 U.S.C. § 1983 insofar as they are predicated upon a theory of respondeat superior; (3) Plaintiff's § 1983 claim that he suffered excessive force and an unconstitutional seizure as the result of the attempted arrest/arrest on January 4, 2004, because Frisbee had prior notice of the propensities of Walker, Jorgenson, and Allman and took no action to stop their abuses; and (4) Plaintiff's § 1983 claim that he suffered excessive force and an unconstitutional seizure as a result of the attempted arrest/arrest on January 4, 2004, because Frisbee failed to properly train Allman, Jorgenson, and Walker [Doc. No. 34 at 1]. Plaintiff's § 1983 claim that the alleged excessive force and unconstitutional seizure he suffered was the result of an institutionalized practice known to and ratified by Frisbee was not dismissed [id. at 1-2].
Attached to Defendants' motion for summary judgment is a plea of no contest document entered by the Criminal Court of McMinn County that was executed by, among others, the Plaintiff on December 4, 2006 [Doc. No. 44-2]. The parties are in agreement that Plaintiff entered a plea of no contest to charges of speeding, evading arrest, and resisting arrest arising out of the events of January 4, 2004 [Doc. No. 44-2].
Attached to Plaintiff's response to Defendants' summary judgment motion is the Plaintiff's affidavit, which states in pertinent part:
1. On January 4, 2004, I got a call from my sister saying my father was in a coma in Athens.
2. I got in my car and headed there.
3. I did not see any police until I was in Athens passing Temptations Restaurant when I first saw the blue lights.
4. I stopped at the red light and sat there one minute and nothing happened.
5. Two other police cars pulled up and I rolled down my window.
6. I had three (3) guns pulled on me.
7. I tried to explain what was going on with my father.
8. I was told to put my hands on my head and to get up against the car.
9. I got jerked about and thrown to the pavement by . . . Walker.
10. Immediately my left arm was jerked behind me and I was cuffed.
11. Allman jumped on me and got me in a head lock and started punching me in the face.
12. Both my hands were cuffed when I was sprayed by . . . Allman.
13. I received injuries to my head and face and hands.
14. At no time did I ever resist or attempt to resist the officers' commands.
15. I exited my vehicle and was attacked, assaulted and sprayed with chemicals after being handcuffed.
Attached to Defendants' supplement to their motion for summary judgment is a June 4, 2006 order of judicial diversion issued in Plaintiff's criminal case in McMinn County [Doc. No. 51-3].
The order states Plaintiff is placed on judicial diversion for a period of four months pursuant to his plea of nolo contendere [id.]. The order states in pertinent part:
The defendant understands that he is to be placed on probation for this entire diversionary period and must abide by all rules of probation during this time . . . .
The defendant further understands that any violation of his probation or the terms of his diversion agreement could result in the immediate revocation of his diversion, with permanent judgments of guilty being entered in this case . . . .
The defendant further understands that it is his/her responsibility to take affirmative action at the successful conclusion of this diversion period to remove this case from his/her record.
Also attached to Defendants' supplement is a waiver of appeal which states that Plaintiff was convicted of speeding, evading arrest and resisting arrest on June 4, 2006, and that Plaintiff: does not desire to appeal his/her case to the Criminal Appeals Courts of Tennessee. He/She states that this decision has been made by him/her voluntarily after a full and complete discussion of said conviction with his/her attorney.
The defendant states he/she fully understands his/her rights to appeal his/her case that he, nevertheless, desires not to appeal. His/Her attorney agrees that the defendant has no basis for appeal as ...