United States District Court, E.D. Tennessee, Knoxville Division
Jordan United States District Judge
matter is before the Court on Defendant Officer Mandy
England's Motion for Summary Judgment [doc. 66], Officer
England's Brief Supporting the Motion [doc. 67],
Plaintiff Annissa Colson's Response [doc. 101], and
Officer England's Reply [doc. 102]. For the reasons
herein, the Court will grant Officer England's motion in
part and deny it in part.
23, 2015, Officer Dustin Cook of the Alcoa Police Department
parks his patrol vehicle alongside Springbrook Road-a
two-lane road with fields on either side of it-in Blount
County, Tennessee. [Video: Officer Cook VieVu, 19:25:56-60
(June 23, 2015) (on file with the Court); Officer Cook Aff.,
doc. 66-9, at 9]. Ahead, just off the road, a vehicle rests
fender-first in a ditch. [Officer Cook VieVu at 19:26:09].
Behind the vehicle, a woman sits in the grass. [Id.
at 19:26:07]. A man wearing a police officer's badge
around his neck, but not wearing a uniform, stands in the
grass not far away from her. [Id. at 19:26:10].
Officer Cook acknowledges him. “What's up?”
Office Cook says to him. [Id. at 19:26:24].
“She's drunk, ” the off-duty officer says,
pointing to the woman in the grass. [Id. at
off-duty officer tells Officer Cook that he was driving on
Springbrook Road earlier in the afternoon, saw the woman
driving her vehicle-the same vehicle now lying in the
ditch-and witnessed a boy jump from the vehicle and run into
the grass adjacent to the road. [Id. at
19:26:30-49]. According to the off-duty officer, the woman
“gunned it” after the boy fled the vehicle,
traversing off road, nearly hitting the boy, and crashing
into the ditch. [Id.]. He describes the boy as the
woman's son and informs Officer Cook that he is sitting
safely in his sport utility vehicle by the road.
[Id. at 19:26:32, 50]. He hands the woman's
driver's license to Officer Cook. [Id. at
19:27:05]. Officer Cook radios for backup and approaches the
woman sitting in the grass. [Id. at 19:27:07-12;
Colson, ” he says. [Id. at 19:27:42].
“Yes, ” she says. [Id. at 19:27:43]. He
asks her how many drinks she consumed during the day.
[Id. at 19:29:05]. Her answer is two shots of vodka.
[Id. at 19:29:07-10]. After gathering some
information about her prescribed medications, Officer Cook
ends their conversation and walks to the sport utility
vehicle by the road. [Id. at 19:29:10-40]. He finds
Ms. Colson's son, Mason, inside and introduces himself.
[Id. at 19:29:42-48]. He asks Mason to describe what
happened. [Id.]. Mason says that he and his mom
spent the day at a public pool and she brought
“something that makes her drunk, alcohol, ” but
he did not actually see her drink it. [Id. at
19:30:49-56, 19:30:36-40]. He adds that, after they left the
pool and got to this point in the road, he pulled the
emergency break in his mom's vehicle and ran away because
she was driving “very fast” and he was afraid
they were going to crash.
Officer Cook finishes speaking with Mason, Officer Arik
Wilson arrives at the scene. [Id. at 19:33:48].
Officer Cook approaches Ms. Colson again and tells her that
he would like her to submit to a field-sobriety test.
[Id. at 19:36:21]. She declines to participate in
the test. [Id. at 19:36:32]. He asks her to stand
up. [Id. at 19:36:38]. She refuses. [Id. at
19:36:39]. He then places her under arrest, charging her with
driving under the influence. [Id. at
19:36:39-59]. He and Officer Wilson instruct her to
stand up and place her hands behind her back, at least half a
dozen times before she complies with their orders.
[Id. at 19:36:36-19:37:35]. As Officer Cook escorts
her to his patrol vehicle, he asks her if she will consent to
a blood alcohol test. [Id. at 19:38:16-19]. Her
answer is no. [Id.]. Officer Cook advises her that
he will attempt to obtain a search warrant for her blood and
will bring another charge against her if she does not consent
to a blood alcohol test. [Id. at 19:49:02-06]. After
he offers to drive her to a local hospital for the test, she
relents and assents to the test. [Id. at
19:49:34-49]. Officer Wilson agrees to follow them to the
hospital after Officer Cook tells him that Ms. Colson is
“screaming and cussing a little.” [Id.
they reach the hospital, Ms. Colson exits Officer Cook's
patrol vehicle and informs the officers that she will not
consent to a blood alcohol test after all. [Id. at
19:59:06-11]. “Okay, ” Officer Cook says.
[Id.]. He tells Ms. Colson that he will attempt to
acquire a search warrant for her blood, and he instructs her
to retake her seat in the patrol vehicle in the meantime.
[Id. at 19:59:53-20:00:04]. Ms. Colson refuses to
get back into the patrol vehicle. “I'm standing
here, ” she says. [Id.]. After Ms. Colson does
not heed his command for the fifth time, he uses force
against her. [Id.]. “I'm standing here,
fucker, ” she says in response. [Id.]. A
struggle then ensues between Ms. Colson and the officers,
with Officer Wilson trying to push her into the backseat from
one side of the patrol vehicle and Officer Cook trying to
pull her in from the other side. [Id. at 20:00:04-
50]. To the sound of a thud, Ms. Colson-who is now outside
the lens of Officer Cook's body camera-screams:
“Ow, my fucking knee, motherfucker!”
[Id.]. Officer Wilson tells Officer Cook that
“her knee just popped.” [Id. at
point, they release Ms. Colson, [id. at 20:00:55],
but continue to order her to get inside the patrol vehicle,
[id. at 20:00:56-20:01:55]. And she continues to
defy their orders, shouting about her knee, swearing at the
officers, and pleading for time to breathe.
[Id.]. The officers give her some time, but she
only continues to ask for more, prompting them to reapply
force to her. [Id. at 20:01:56-20:02:09]. She
resists them, but they eventually manage to strong-arm her
into the patrol vehicle. [Id.]. Officer Cook then
radios his supervisor, describing the struggle that had
ensued at the hospital and noting that Ms. Colson just
“ripped the rubber off the side of [the patrol] car, on
the inside of the door.” [Id. at
20:03:36-20:04:32]. He also informs his supervisor of a
possible injury to Ms. Colson's knee. [Id.]. His
supervisor instructs him to bring her to the local jail.
[Id.]. As Officer Cook transports her to the jail,
she repeatedly swears at him, cries out for her mother, and
wails about her knee. [Id. at 20:04:43-20:06:32].
soon arrive at the jail's sally port, and Officer England
is there waiting for them. [Id. at
20:06:20-20:07:10]. “Bringing you a combative one,
” Officer Cook says to her. [Id.]. He explains
that he had to use force against Ms. Colson at the hospital,
though he does not mention her possible injury.
[Id.]. Officer England escorts Ms. Colson, who is
sobbing but walking upright, from the sally port to a pat
down room, where officers are present. [Id. at
20:07:11-48]. Ms. Colson tells Officer England that “my
knee is fucked up thanks to your officers.”
[Id. at 20:07:49-50]. Officer England acknowledges
her, responding, “Okay.” [Id. at
20:07:51]. Seconds later, Ms. Colson falls to the floor,
unable to support her own weight as Officer England is
frisking her. “Ow, ow, my fucking knee!” she
says. [Id. at 20:08:13-20]. Officer England lifts
her to her feet and instructs her to stand. [Id. at
20:08:15-18]. Ms. Colson again says, “That's from
your officers, ” referring to her knee. [Id.
at 20:08:17-20]. Once more, Officer England acknowledges her.
Cook asks for the nurse. [Id. at 20:08:56-20:09:00].
Shortly afterwards, one of the other officers in the pat down
room calls for the nurse. “Would you send the nurse
over here, please?” the officer says into her
walkie-talkie. [Id. at 20:09:28-37]. In response,
Ms. Colson echoes her, saying, “Please.”
[Id. at 20:09:39]. While the officers remove Ms.
Colson's jewelry as part of the pat-down process, Ms.
Colson steps forward to place her ring in a plastic bag.
[Id. at 20:11:27:31]. She totters and winces,
prompting both Officer England and another officer to take
her by the arms and steady her. [Id. at
nurse enters the pat down room and approaches Ms. Colson, who
points out her injured knee and says she “never heard
it pop so much in her life.” [Id. at 20:12:02-
25]. The nurse directs her to straighten her leg, to bend it
back, and to move it from side to side. [Id. at
20:12:28-41]. “It hurts, it hurts, ” Ms. Colson
says. [Id.]. The nurse next instructs her to stand
up straight against the wall. “I can't, ” she
says. “I can't straighten my legs.”
[Id. at 20:12:57-20:13:04]. After bending to examine
Ms. Colson's knee, the nurse says, “I don't see
no swelling, ” and she leaves the room. [Id.
at 20:13:08-14]. In response to this statement, the officers
guide Ms. Colson toward a cell located farther inside the
jail. [Id. at 20:13:12-20:14:04]. Officer Cook
lingers so he can speak with the nurse about drawing Ms.
Colson's blood. [Id.]. As they are talking to
each other, and as the officers are moving Ms. Colson into
the cell, Ms. Colson-who is now outside the lens of Officer
Cook's body camera-raises her voice at the officers.
[Id. at 20:13:43- 20:14:04]. She continuously yells
the word “bitch.” [Id. at
on, ” Officer Cook says, “I'm going to record
this.” [Id. at 20:14:04-06]. As the commotion
between Ms. Colson and the officers is stirring in the
background, he moves toward the cell where the officers have
taken her. [Id. at 20:14:06-11]. Inside, at least
five officers are pinning her to the floor. [Id. at
20:14:12]. “Are you done?” one of them
says to her. [Id. at 20:14:13]. “Bitch,
” she says back. [Id. at 20:14:14]. Officer
Cook turns off his body camera; all goes black. [Id.
time Officer Cook turns his camera on again, Ms. Colson is
lying in a restraint chair, strapped down to it. [Video:
Officer Cook VieVu 2, 21:31:07 (June 23, 2015) (on file with
the Court)]. Officer Cook shows Ms. Colson a search warrant
from a magistrate. [Id. at 21:31:17-27; Search
Warrant, doc. 66-6]. He informs her that the nurse is now
going to draw her blood. [Officer Cook VieVu 2 at 21:31:28].
She complains that no one has let her use the restroom, even
though she has requested to use it “for the last
hour.” [Id. at 21:31:31-32]. Officer Cook says
that he is sure the jail's officers will let her use the
restroom if she cooperates with them. [Id. at
21:31:33-36]. “Okay, ” she says, nodding.
[Id. at 21:31:40]. Seconds later, she again asks for
permission to go to the restroom. [Id. at
21:31:50-52]. “I pissed myself, ” she says.
[Id. at 21:21:59-32:00:03]. In the background, a
female officer-possibly Officer England-says, “Guys,
you don't have to worry about it. She's already
peed.” [Id. at 21:32:28-29].
nurse enters the room and prepares to take blood from Ms.
Colson's left arm, but Ms. Colson intimates that she
would prefer to have the nurse draw blood from her right arm
instead. [Id. at 21:32:33-21:33:07]. Accommodating
her, the nurse moves to the restraint chair's opposite
side, where she readies to draw blood from Ms. Colson's
right arm. [Id.]. But Ms. Colson appears to resist
her efforts, refusing to keep her arm at rest. [Id.
at 21:33:22]. “I have no control over my arm staying
still. I'm sorry, ” she says to the nurse.
[Id. at 21:33:22-25]. She refuses to cooperate
because the officers did not let her use the restroom:
“I have no control over my arm staying still. I had to
pee like an hour ago and nobody let me, ” she says.
[Id. at 21:33:36-40]. Several officers enter the
room, including Officer England, who says, “We're
going to draw that motherfucking blood whether you like it or
not.” [Id. at 21:33:56-59]. Ms. Colson says,
“I'm just going to move. I'm just going to keep
moving and nobody's going to take my blood. Blah, blah,
blah.” [Id. at 21:33:59-21:34:03]. Nearly at
eye-level with Ms. Colson, Officer England holds down her
right arm with one hand and presses into her shoulder with
the other hand, while two other officers also help to keep
her still. [Id. at 21:34:06-44]. As the nurse is
attempting to take Ms. Colson's blood, Ms. Colson lunges
at Officer England's bare arm with her mouth.
[Id. at 21:34:45].
in one motion, Officer England recoils from Ms. Colson and
slaps her in the face. [Id. at 21:34:46].
“Don't you fucking bite me!” Officer England
says, her eyes ballooning. [Id. at 21:34:49-50]. She
leaves the room, while a male officer places a headlock
around Ms. Colson. [Id. at 21:34:51-52].
“You're hurting my neck!” she says to him.
[Id. at 21:34:53]. “Good, you shouldn't
have just bit my officer, ” he says back to her.
[Id. at 21:34:54-57]. “I didn't bite her.
I tried to. I didn't bite the bitch, though, ” she
replies. [Id. at 21:34:57-21:35:00]. Officer England
says, “You fucking bit me, I've got the
marks.” [Id. at 21:34:58-21:35:00]. Carrying a
motorcycle helmet, she returns to the room. [Id. at
21:35:11]. She fastens the helmet to Ms. Colson's head,
with the officers' help. [Id. at
21:35:12-21:35:30]. The helmet has a convex guard covering
the jaw and mouth area. [Id.]. While the officers
hold Ms. Colson, the nurse finishes drawing her blood without
further incident. [Id. at 21:35:31-21:38:48].
her release from the jail, Ms. Colson went to the hospital,
where she learned that she had a fractured tibial plateau, a
torn anterior cruciate ligament, and a torn lateral
collateral ligament. [Colson Aff., doc. 101-3, ¶ 43].
She required surgery to repair the damage. [Id.
¶ 44]. Officer Cook later filed several affidavits
against her, for charges that included felony reckless
endangerment, driving under the influence, assault on a
police officer,  and resisting arrest. [Officer Cook Aff.
at 5-12]. Her blood sample from the night of June 23, 2015,
revealed a blood alcohol concentration of .151%, [Alcohol
Report, doc. 66-2, at 1], which is approximately twice the
legal limit under Tennessee law, Tenn. Code. Ann. §
Colson has now filed suit in this Court against the City of
Alcoa, Tennessee; Blount County, Tennessee; and officers of
these local governments in their official and individual
capacities. She brings several claims under 42 U.S.C. §
1983, asserting that these parties violated her rights under
the Fourth, Eighth, and Fourteenth Amendments of the
Constitution. [Compl., doc. 1-1, 32-53]. As to Officer
England, Ms. Colson maintains that these violations consist
of the use of excessive force (Count Four) and the failure to
provide adequate medical care (Count Nine). [Id.
¶¶ 116-18, 165-72]. Ms. Colson also brings three
claims against Officer England under Tennessee law, including
assault and battery (Count Eleven), intentional infliction of
emotional distress (Count Twelve), and negligence (Count
Thirteen). [Id. ¶¶ 178-82, 183-89,
190-94]. Officer England, in her individual capacity, now
moves for summary judgment on most of these claims, arguing
that she is entitled to qualified immunity. [Def.'s Mot.
Summ. J. at 1-2].
Officer England moved for summary judgment, discovery had yet
to begin in this case, and discovery is now ongoing.
[See Scheduling Order, doc. 90, at 3 (allowing the
parties to conduct discovery until ninety days before
trial)]. By agreement of the parties, the Court permitted Ms.
Colson to carry out limited discovery so that she could
properly respond to Officer England's motion. [Order,
doc. 83, 2-3]. The parties elected to limit discovery to the
depositions of Officer England and Corporal Michelle Bishop,
her supervisor. [Id.]. To date, the parties have
reported no problems with their agreed-upon discovery
process. Ms. Colson has now filed a response, with excerpts
from the testimonies of Officer England and Corporal Bishop,
and Officer England has filed a reply. The Court therefore
deems Officer England's motion for summary judgment to be
ripe for its consideration.
judgment is proper when the moving party shows, or
“point[s] out to the district court, ”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986),
that the record-the admissions, affidavits, answers to
interrogatories, declarations, depositions, or other
materials-is without a genuine issue of material fact and
that the moving party is entitled to judgment as a matter of
law, Fed.R.Civ.P. 56(a), (c). The moving party has the
initial burden of identifying the basis for summary judgment
and the portions of the record that lack genuine issues of
material fact. Celotex, 477 U.S. at 323. The moving
party discharges that burden by showing “an absence of
evidence to support the nonmoving party's” claim or
defense, id. at 325, at which point the nonmoving
party, to survive summary judgment, must identify facts in
the record that create a genuine issue of material fact,
id. at 324.
just any factual dispute will defeat a motion for summary
judgment-the requirement is “that there be no
genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is “material” if it may affect the
outcome of the case under the applicable substantive law,
id., and an issue is “genuine” if the
evidence is “such that a reasonable jury could return a
verdict for the nonmoving party.” Id. In
short, the inquiry is whether the record contains evidence
that “presents a sufficient disagreement to require
submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.” Id. at
251-52. When ruling on a motion for summary judgment, a court
must view the facts and draw all reasonable inferences in the
light most favorable to the nonmoving party. Scott v.
Harris, 550 U.S. 372, 378 (2007). “[T]he
judge's function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Anderson,
477 U.S. at 249. A court may also resolve pure questions of
law on a motion for summary judgment. See Hill v.
Homeward Residential, Inc., 799 F.3d 544, 550 (6th Cir.
initial matter, the Court notes that Officer England, in
supporting her motion, has filed numerous video
recordings-from the point of view of the officers' body
cameras and dash cameras-for the Court's consideration.
These videos bring illumination to many of the events and
circumstances that the parties have disputed through the
pleading stage and up to this point. Because the Court does
not ordinarily receive video evidence when resolving motions
for summary judgment, it will explain how it intends to
view-not weigh, but view-this evidence through the prism of
the legal standard governing summary judgment.
the Court may properly consider the videos as evidence at
this stage in the litigation, and neither party argues
otherwise. See Griffin v. Hardrick, 604 F.3d 949,
954 (6th Cir. 2010) (recognizing that “a court may
properly consider videotape evidence at the summary-judgment
stage”); see, e.g., Lewis v. Charter
Twp., 660 F. App'x 339, 340- 47 (6th Cir. 2016)
(relying on video evidence in a § 1983 case). Second,
when viewing the videos, the Court has to construe them
“in the light most favorable to [the nonmoving
party].” Dunn v. Matatall, 549 F.3d 348, 353
(6th Cir. 2008).
Court also has to “view the facts in the light
depicted by the videotape.” Scotty v. Harris,
550 U.S. 372, 381 (2007). In other words, “[w]hen
opposing parties tell two different stories, one of which is
blatantly contradicted by the [video], so that no reasonable
jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary
judgment.” Id. at 380. In short, the Court,
under the guise of construing the videos in the light most
favorable to Ms. Colson, will not peddle a version of events
that is tantamount to “visible fiction.”
Id. at 381.
1983 permits a claim for damages against “[e]very
person who, under color of [state law], subjects, or causes
to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983. Because
§ 1983 has “a ‘color of law'
requirement, ” a defendant can be liable “only if
state law, whether provided by statute or judicially implied,
empowers him with some legal obligation to act.”
Doe v. Claiborne County, 103 F.3d 495, 512 (6th Cir.
1996) (citation omitted). A claim under § 1983 therefore
consists of two elements: the defendant (1) must deprive the
plaintiff of either a constitutional or a federal statutory
right and (2) must deprive the plaintiff of
one of these rights while acting under color of state law
(i.e., state action). Id. at 511. “Absent
either element, a section 1983 claim will not lie.”
Christy v. Randlett, 932 F.2d 502, 504 (6th Cir.
immunity is a personal defense that applies only to
government officials in their individual capacities.”
Benison v. Ross, 765 F.3d 649, 665 (6th Cir. 2014)
(citation omitted). It insulates government officials
“from undue interference with their duties, ”
Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982),
affording them “breathing room to make reasonable but
mistaken judgments” and protecting “all but the
plainly incompetent or those who knowingly violate the law,
” Stanton v. Sims, 571 U.S. 3, 5 (2013)
(internal quotation marks omitted) (quoting Ashcroft v.
al-Kidd, 563 U.S. 731, 743 (2011)). To obtain qualified
immunity, the defendant shoulders the initial burden to
present evidence showing that his acts were within his
discretionary authority. Gravely v. Madden, 142 F.3d
345, 347 (6th Cir. 1998); Wegener v. City of
Covington, 933 F.2d 390, 392 (6th Cir. 1991). If the
defendant dispatches this burden, the burden then shifts to
the plaintiff, who must identify evidence satisfying a
two-party inquiry. Gravely, 142 F.3d at 348;
Wegener, 933 F.2d at 392.
this two-party inquiry, the defendant is entitled to
qualified immunity unless the evidence, “viewed in the
light most favorable to the plaintiff, would permit a
reasonable juror to find that: (1) the defendant violated a
constitutional right; and (2) the right was clearly
established.” Morrison v. Bd. of Trs., 583
F.3d 394, 400 (6th Cir. 2009) (citation and footnote
omitted). “An answer of ‘yes' to both
questions defeats qualified immunity, while an answer of
‘no' to either question results in a grant of
qualified immunity.” Haley v. Elsmere Police
Dep't, 452 F. App'x 623, 626 (6th Cir. 2011). In
performing an analysis under the two-party inquiry, a court
does not have to address the prongs sequentially; neither one
is an antecedent to the other. Pearson v. Callahan,
555 U.S. 223, 236 (2009); see al-Kidd, 563 U.S. at
735 (instructing courts to “think carefully before
expending ‘scare judicial resources' to resolve
difficult and novel questions” under the two-party
inquiry, particularly when those questions “will
‘have no effect on the outcome of the case'”
the Court begins its analysis, it notes that record contains
no dispute regarding whether Officer England was acting
within her discretionary authority during the events in
question. First, Ms. Colson maintains that Officer England
“used her position of authority” when violating
her constitutional rights, and second, she accedes that
“it is [her] burden to show that [Officer England] is
not entitled to qualified immunity.” [Pl.'s Resp.
at 12, 25]. The Court therefore considers Ms. Colson to be
the party carrying the burden. To discharge her burden, she
must offer evidence satisfying both prongs of the two-part
inquiry-with the Court viewing that evidence in the light
most favorable to her. Morrison, 583 F.3d at 400.
Ms. Colson's Claim for Excessive Force
the Constitution, four provisions proscribe the use of
excessive force- the Fourth, Eighth, Fifth, and Fourteenth
Amendments-and whether one applies over the other depends on
the circumstances. Kingsley v. Hendrickson, 135
S.Ct. 2466, 2477 (2015) (Scalia, J., dissenting). Any
excessive force claim under § 1983 therefore cannot be
“governed by a single generic standard.”
Graham v. Connor, 490 U.S. 386, 393 (1989). Instead,
“analysis begins by identifying the ...