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Carden v. Gerlach

United States District Court, E.D. Tennessee

June 13, 2018

BRANDON T. CARDEN, individually and as next of kin of the Decedent, Ronald E. Carden, Plaintiff,
v.
DAVID GERLACH, individually and in his official capacity as an officer of the Knoxville City Police Department, Defendant.

          MEMORANDUM OPINION

          THOMAS A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE

         This civil matter is before the Court on defendant's second renewed and supplemental motion for summary judgment [Doc. 114]. Plaintiff did not respond and the time for doing so has now passed. E.D. Tenn. L.R. 7.1. In his motion, defendant asserts that he is entitled to qualified immunity as a matter of law.[1] For the reasons set forth below, the Court will grant defendant's motion for summary judgment.

         I. Background

         In the early hours of July 27, 2014, Ronald Carden (“the decedent”) and Nicholas Thomas (“Mr. Thomas”) were traveling on Interstate 40 (“I-40”) when the decedent's car experienced a flat tire, and they pulled over to change it [Doc. 1 ¶ 16, Doc. 7 ¶ 16].

         Defendant Officer David Gerlach (“defendant”), while on patrol, observed the two men standing on the shoulder of I-40 [Doc. 14-1 ¶ 3]. Defendant pulled behind the vehicle and saw that the men were changing a flat tire [Id.]. He offered them assistance, which they declined, and returned to his police cruiser [Id. ¶ 4]. After beginning to back out, defendant ran the license plate of the vehicle and realized that the plates did not match the vehicle registration [Id.]. Defendant then pulled his cruiser back behind the two men in order to further investigate [Id.].

         As defendant exited his vehicle, the decedent walked over to his car's driver-side door and leaned down inside the vehicle [Id. ¶ 5; Doc. 14-6, D. Gerlach Video].[2]Defendant, fearing that the decedent was reaching for a weapon, asked the decedent to walk toward him [Doc. 14-1 ¶ 5]. The decedent did not appear to have a weapon in his hands as he rose from the car [Doc. 14-6, D. Gerlach Video]. He approached defendant, and defendant placed a hand on the decedent's chest [Doc. 14-1 ¶ 6]. Defendant then called in the traffic stop, holstered his radio, and placed a hand on the decedent's sleeve [Id.]. The decedent proceeded to swing two punches at defendant's mid-torso and run in the opposite direction of I-40 [Id.; Doc. 14-6, D. Gerlach Video]. Defendant chased after the decedent and ordered that he stop and get down on the ground [Doc. 14-1 ¶¶ 6, 8]. The decedent ignored these commands, and defendant tackled him to the ground [Id. ¶ 8; Doc. 14-6, D. Gerlach Video]. A struggle ensued during which the decedent attempted to grab defendant's gun [Doc. 103]. Ultimately, defendant fired five shots, killing the decedent [Id.].

         Brandon Carden, the son of the decedent, now brings suit against the City of Knoxville and defendant, both individually and in his official capacity [Doc. 1]. He asserts claims against defendant pursuant to 42 U.S.C. § 1983 for excessive force, deprivation of liberty without due process of law, summary punishment, arbitrary governmental activity, and deliberate indifference in violation of the Fourth and Fourteenth Amendments [Id. at 7, 15]. In addition, plaintiff claims that defendants deprived him of the right of familial association with his father [Id. at 7]. Plaintiff also brings claims against defendant for assault, battery, and deliberate indifference under Tennessee law [Id. at 12].

         This Court previously granted in part and denied in part defendant's initial motion for summary judgment [Doc. 27]. Part of the Court's reasoning for denying summary judgment on defendant's qualified immunity defense was that Mr. Thomas, who was present when defendant shot the decedent, provided statements about his version of events [Id.]. Because his version of events conflicted with defendant's version of events, this Court held that a genuine dispute of material fact existed as to whether defendant was authorized to use deadly force, and thus summary judgment was denied. Defendant appealed this Court's decision to the Sixth Circuit, claiming that he was entitled to qualified immunity on plaintiff's excessive force claim as well as his claims under state law for assault, battery, and deliberate indifference. The Sixth Circuit affirmed this Court's decision [Doc. 30]. Defendant then filed a renewed motion for summary judgment on the same claims [Doc. 44], which this Court denied again on the grounds that Mr. Thomas and defendant had conflicting stories about the incident in question [Doc. 66].

         Before trial, plaintiff filed a motion in limine seeking to exclude the testimony and statements of Mr. Thomas [Doc. 85]. Plaintiff asserted that Mr. Thomas's statements were inconsistent and unreliable [Id.]. At the final pretrial conference held on April 16, 2018, both parties stipulated that Mr. Thomas's testimony and previous statements would be excluded at trial [Doc. 106]. Defendant stated his intent to file a renewed motion for summary judgment in light of this stipulation, and plaintiff did not object nor did plaintiff attempt to call Mr. Thomas as a witness at trial. In addition, in the agreed upon pretrial order, plaintiff stipulated to certain facts, including the fact that the decedent made efforts to gain control of defendant's handgun [Doc. 103 p. 5]. Based on these developments, defendant filed a second renewed motion for summary judgment [Doc. 114]. While plaintiff did not file a renewed response to the present motion, given the extensive briefing on this issue prior to trial, the Court will consider plaintiff's arguments previously raised in opposition to defendant's motions [Docs. 25, 53].

         II. Standard of Review

         Summary judgment is proper where there is “no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The Court may consider the pleadings, discovery, affidavits, and other evidence on the record. Id. In the Sixth Circuit, there is a genuine issue of fact “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 451 (6th Cir. 2004). “A fact is material only if its resolution will affect the outcome of the lawsuit.” Id. at 451-52. The Court must view the evidence in the light most favorable to the non-movant, and draw all reasonable inferences in the non-movant's favor. See Sutherland v. Mich. Dep't of Treasury, 344 F.3d 603, 613 (6th Cir. 2003). Thus, “the moving party has the initial burden of showing the absence of a genuine issue of material fact.” Hedrick, 355 F.3d at 451 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). On a motion for summary judgment by a defendant asserting a sovereign immunity defense, the Court must adopt the plaintiff's version of the facts. Campbell v. City of Springboro, 700 F.3d 779, 786 (6th Cir. 2012).

         Government officials are shielded from liability under the doctrine of qualified immunity so long as their “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). Plaintiff must plead facts showing “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established' at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citation omitted). Qualified immunity is an affirmative defense, [3] and once raised, the plaintiff must show that the official violated a right so clearly established that a “reasonable official would have understood that what he [was] doing violate[d] that right.” Id. at 741 (internal citation and quotation marks omitted). The plaintiff bears the ultimate burden of proof, Garretson v. City of Madison Heights, 407 F.3d 789, 798 (6th Cir. 2005) (citation omitted), and if the plaintiff fails to carry his burden as to either element of the qualified-immunity analysis, then the official is immune from suit, Cockrell v. City of Cincinnati, 468 Fed.Appx. 491, 494 (6th Cir. 2012).

         III. Analysis

         The Court will first examine whether defendant violated the decedent's constitutional right to be free from excessive force. al-Kidd, 563 U.S. at 735. While the Fourth Amendment prohibits unreasonable seizures to protect citizens from the use of excessive force by law enforcement officers, Godawa v. Byrd, 798 F.3d 457, 463 (6th Cir. 2015), the government does have a “right to use some degree of physical coercion[, ] or threat thereof, ” ...


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