Turner v. Tillman

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

ALAN D. TURNER, )

)

Plaintiff, )

)

v. ) Case No. 1:19CV4 HEA

)

NELSON C. TILLMAN, et al., )

)

Defendants. )

OPINION, MEMORANDUM AND ORDER

This matter is before the Court on Defendants Tillman and Davis’ Motion

for Summary Judgment [Doc. No. 45]. Plaintiff opposes the Motion. For the

reasons set forth below, the Motion for Summary Judgment is granted.

Facts and Background

Defendants have, in accordance with the Court’s Local Rules, submitted a

Statement of Uncontroverted Material Facts. Plaintiff failed to respond to

Defendants’ facts in accordance with the Federal Rules of Civil Procedure and the

Court’s Local Rules. In his Response Memorandum to Defendants’ Motion for

Summary Judgment, filed as a sur-reply, Plaintiff states that “Plaintiff responded to

Defendants’ statement of facts and, therefore, all of the facts set forth within this

motion are admitted for the purpose to deny the defendants summary judgment and

qualified immunity claim.” Allowing for a liberal construction of the pro se

Plaintiff’s pleadings, the Court understands Plaintiff to believe and assert that his

two memoranda and attached exhibits are sufficient responses to Defendants’

statement of facts, and that the allegations in his memoranda must be deemed

admitted. Plaintiff is incorrect.

Rule 56(c)(1) of the Federal Rules of Civil Procedure provides the

procedures for supporting factual positions:

(1) A party asserting that a fact cannot be or is genuinely disputed must

support the assertion by:

(A) citing to particular parts of materials in the record, including

depositions, documents, electronically stored information,

affidavits or declarations, stipulations (including those made for

purposes of the motion only), admissions, interrogatory answers,

or other materials; or

(B) showing that the materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot

produce admissible evidence to support the fact.

Relatedly, Rule 7-401(E) of this Court’s Local Rules provides:

Rule 7 - 4.01 Motions and Memoranda.

(E) A memorandum in support of a motion for summary judgment shall

have attached a statement of uncontroverted material facts, set forth in a

separately numbered paragraph for each fact, indicating whether each fact is

established by the record, and, if so, the appropriate citations. Every

memorandum in opposition shall include a statement of material facts as to

which the party contends a genuine issue exists. Those matters in dispute

shall be set forth with specific references to portions of the record, where

available, upon which the opposing party relies. The opposing party also

shall note for all disputed facts the paragraph number from movant’s listing

of facts. All matters set forth in the statement of the movant shall be deemed

admitted for purposes of summary judgment unless specifically controverted

by the opposing party.

Plaintiff failed to follow the above rules. Pro se litigants are not excused from

complying with substantive and procedural law, including the Court’s Local Rules.

Farnsworth v. City of Kansas City, Mo., 863 F.2d 33, 34 (8th Cir. 1988); Bunch v.

Univ. of Arkansas Bd. of Trustees, 863 F.3d 1062, 1067 (8th Cir. 2017).

Defendants’ facts are deemed admitted pursuant to Rule 56 of the Federal Rules of

Civil Procedure and Local Rule 7-401(E).

The undisputed facts, as set forth in Defendants’ statement of facts, are as

follows:

On August 2, 2018, Cape Girardeau Patrol Officer Nelson Tillman

(“Tillman”) was booking a female suspect in the booking room at the Cape

Girardeau Police Department. At the same time, Plaintiff Alan Turner (“Plaintiff”)

was being booked by another officer. Tillman was not involved in the initial arrest

of Plaintiff on August 2, 2018 nor did Tillman have any contact with Plaintiff on

that day until Plaintiff arrived in the booking room at the Cape Girardeau Police

Department.

At one point during the booking process, Tillman stood at one end of the

booking counter with Cape Girardeau Jailer Kindal Al Arnaout (“Al Arnaout”),

Probation Officer Kym Moore (“Moore”), and the female suspect, while Plaintiff

sat on a bench in front of the booking counter. Plaintiff got up from the bench and

approached Tillman, Al Arnaout, Moore, and the female suspect. Tillman ordered

Plaintiff to go back and sit down on the bench. Plaintiff did not comply with

Tillman’s order. Plaintiff was talking somewhat incoherently and said something to

the effect that he was “Jesus.” Plaintiff acted aggressively towards Al Arnaout,

Moore, and the female suspect, then turned and moved toward Tillman in an

aggressive manner. Tillman pointed his taser toward Plaintiff and moved

backwards in order to provide Plaintiff with an opportunity to become compliant

without the use of force. Tillman did so in an attempt to de-escalate the situation.

Plaintiff continued moving aggressively toward Tillman. Tillman discharged

his taser in order to restore discipline, obtain compliance, and protect himself and

the other individuals in the booking room. The barbs from the taser struck Plaintiff

in the chest and Tillman delivered a single electrical charge to Plaintiff. That was

the only time that Tillman used his taser to deliver an electrical charge to Plaintiff.

After Tillman delivered the electrical charge, Plaintiff fell to the floor.

Tillman ordered Plaintiff to roll over onto his stomach and put his hands

behind his back. Tillman knocked on a window in the booking room, trying to get

more police officers and/or jailers to come into the booking room to help secure

Plaintiff. Plaintiff began pulling at the taser barbs in his chest. Tillman again

ordered Plaintiff to put his hands behind his back. Plaintiff did not comply with

that order but rather kept pulling at the taser barbs. Tillman knew that if Plaintiff

removed the taser barbs, Tillman would not be able to use them to deliver another

electrical charge to Plaintiff if Plaintiff became aggressive again.

Tillman attempted to grab Plaintiff’s hands to put them behind Plaintiff’s

back. Plaintiff resisted those attempts and knocked the taser out of Tillman’s hand.

Tillman moved away from Plaintiff and took a defensive position in an attempt to

de-escalate the situation by providing Plaintiff with an opportunity to become

compliant without the use of force. Plaintiff pointed the taser at Tillman and

moved aggressively toward him. Tillman grabbed his expandable baton to defend

himself in case Plaintiff attacked him again. Tillman ordered Plaintiff several times

to get down in a further attempt to de-escalate the situation, but Plaintiff kept

moving toward Tillman. Tillman used his expandable baton to defend himself and

to stop Plaintiff from attacking him. Plaintiff kept moving toward Tillman.

Tillman then got away from Plaintiff and again ordered Plaintiff to get

down. Plaintiff ran down a hallway toward Al Arnaout, Moore, and the female

suspect, who were standing at the end of the hallway. Tillman again ordered

Plaintiff to get down. Plaintiff started attacking Al Arnaout. Tillman ran toward her

and the other women, trying to protect them. Moore sprayed pepper spray toward

Plaintiff which coated the floor, causing Tillman to slip on the pepper spray as he

approached Plaintiff. When Tillman slipped, Plaintiff moved toward Tillman,

repeatedly striking Officer Tillman’s head and body with the taser gun. Plaintiff

had also grabbed a flashlight from either Tillman or Al Arnaout’s equipment and

he repeatedly struck Tillman’s head and body with the flashlight.

After Tillman grabbed Plaintiff’s legs, he and Al Arnaout were able to get

Plaintiff on the floor. Tillman and Al Arnaout wrestled with Plaintiff on the floor

to try to secure him. They also yelled for help. Defendant Cape Girardeau Assistant

Jail Administrator Shawn Davis (“Davis”) ran into the booking room when he

heard yells for help. Davis was the first jailer and/or police officer to enter the

booking room to assist Tillman and Al Arnaout. Davis saw Tillman and Al

Arnaout attempting to secure Plaintiff on the floor and ran to them. Davis then

knelt down to help Tillman and Al Arnaout in securing Plaintiff. Davis did so in an

attempt to restore discipline, maintain order, obtain compliance, and protect

Tillman and Al Arnaout from further injuries. Davis, trying to help secure Plaintiff,

grabbed one of Plaintiff’s arms and/or hands. Two more police officers came into

the room shortly thereafter and Davis assisted them in securing Plaintiff’s hands.

As more police officers arrived, Tillman and Davis stood up, allowing those

officers to finish securing Plaintiff.

Tillman and Davis did not carry Plaintiff into a cell in the booking room and

did not personally place any restraints on Plaintiff before he was carried into the

cell. Davis never used a taser on Plaintiff. Tillman only used his taser once to

deliver a single electrical charge to Plaintiff at the beginning of the incident.

Tillman and Davis never used a taser on Plaintiff when they were trying to secure

him on the floor of the booking room. Any force Tillman and Davis used on

Plaintiff was intended to restore discipline, maintain order, obtain compliance, and

protect themselves and the other individuals in the booking room.

As a result of this incident, Tillman received 12 sutures for a laceration on

his forehead, 7 sutures for a laceration on the back of his head, 4 sutures for a

laceration on his right check, and 2 sutures for a laceration above his right ear,

which have left permanent scarring. Tillman also sustained multiple abrasions and

bruises from this incident and a CT scan was performed on him due to the severe

head trauma he sustained during the incident.

Here, the Court notes that Defendants’ version of events is supported by the

Affidavits of Tillman and Davis as well as by a DVD containing three video

recordings, each capturing the incident that is the subject of this lawsuit from a

different angle. The first two video recordings depict the main booking room from

two different vantage points: one from the corner opposite the hallway and one

from the other side of the booking counter, closer to the hallway. These recordings

also contain audio from the booking room. The third video, which has no audio,

depicts the hallway just off the booking room. Defendants, in their statement of

facts, assert that the videos fairly and accurately depict the incident.

Although Plaintiff did not properly respond to Defendants’ statement of

facts, he repeatedly asserts that the video recordings were “staged” and “altered.”

Plaintiff submitted with his opposition to summary judgment a DVD that he claims

is “true and factual” and proves that the videos were altered. However, the DVD

Plaintiff submitted contains three video recordings that, upon review, are identical

to those on the DVD submitted by Defendants. Additionally, Plaintiff claims that

Defendants froze portions of the video files to remove incriminating footage.

Defendants acknowledge the one video freezes but notes that one of the other

cameras recorded the incident while the first camera was frozen. Indeed, the parties

are always visible on at least one, unfrozen video recording.

Plaintiff also submitted photos of his injuries and portions of his medical

record from Saint Francis Medical Center. He argues that that the videos must be

altered because they “do not show Plaintiff being assaulted when it’s obvious that

Plaintiff sustained numerous of [sic] injuries.” According to the medical records he

submitted, Plaintiff’s injuries were a laceration to his left forehead, a laceration to

the back of his head, and abrasions on his foot, hand, and knee. The melee shown

in the videos clearly could have brought about each of the injuries shown in the

photos and described in the medical records. Plaintiff’s claim that the videos were

altered is not considered, as it is both improperly raised and unsupported.

Plaintiff also gives his own account of the incident. As explained in the

Discussion section below, Plaintiff’s version of events is refuted by the evidence

and not considered on this motion.

Legal Standard

Pursuant to Federal Rule of Civil Procedure 56(a), a district court may grant

a motion for summary judgment if all of the information before the court

demonstrates that “there is no genuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.

317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden is on the moving

party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op. Inc., 838 F.2d 268,

273 (8th Cir. 1988). After the moving party discharges this burden, the nonmoving

party must do more than show that there is some doubt as to the facts. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89

L.Ed.2d 538 (1986). Instead, the nonmoving party bears the burden of setting forth

affirmative evidence and specific facts by affidavit and other evidence showing

that there is a genuine dispute of a material fact. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex, 477 U.S. at

324, 106 S.Ct. 2548. “A dispute about a material fact is ‘genuine’ only ‘if the

evidence is such that a reasonable jury could return a verdict for the nonmoving

party.’ ” Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1030 (8th Cir. 2000)

(quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). A party resisting summary

judgment has the burden to designate the specific facts that create a triable

controversy. See Crossley v. Georgia–Pacific Corp., 355 F.3d 1112, 1114 (8th Cir.

2004). Self-serving, conclusory statements without support are not sufficient to

defeat summary judgment. Armour and Co., Inc. v. Inver Grove Heights, 2 F.3d

276, 279 (8th Cir. 1993).

In ruling on a motion for summary judgment, the court must review the facts

in a light most favorable to the party opposing the motion and give that party the

benefit of any inferences that logically can be drawn from those facts. Matsushita,

475 U.S. at 587; Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.

2005). The Court may not “weigh the evidence in the summary judgment record,

decide credibility questions, or determine the truth of any factual issue.”

Kampouris v. St. Louis Symphony Soc., 210 F.3d 845, 847 (8th Cir. 2000).

Discussion

Plaintiff claims that Tillman and Davis violated his rights by using

unconstitutional excessive force against in him in the booking room. Specifically,

Plaintiff claims excessive force was used when Tillman struck him in the upper lip

with a metal baton and struck him in the head with a metal flashlight, and when

Davis dropped his knee into Plaintiff’s upper eye and repeatedly hit him in the face

and head as Plaintiff lay on the floor, after Plaintiff had stopped resisting.

Plaintiff’s excessive force claim is governed by the Fourth Amendment’s

objective reasonableness standard. Parrish v. Dingman, 912 F.3d 464, 467 (8th

Cir. 2019) (citing Hicks v. Norwood, 640 F.3d 839, 842 (8th Cir. 2011) (“It is

settled in this circuit that the Fourth Amendment's ‘objective reasonableness’

standard for arrestees governs excessive-force claims arising during the booking

process.)) To prove a constitutional violation, Plaintiff must show that Defendants’

uses of force were not objectively reasonable under the particular circumstances.

Id. (citing Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009)).

Objective reasonableness is “judged from the perspective of a reasonable officer on

the scene, rather than with the 20/20 vision of hindsight.” Id. (citing Graham v.

Connor, 490 U.S. 386, 396 (1989)). In determining objective reasonableness, a

court may look to “the relationship between the need for the use of force and the

amount of force used; the extent of the plaintiff’s injury; any effort made by the

officer to temper or to limit the amount of force; the severity of the security

problem at issue; the threat reasonably perceived by the officer; and whether the

plaintiff was actively resisting.” Zubrod v. Hoch, 907 F.3d 568, 577 (8th Cir.

2018) (quoting Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 2473,

(2015)). A court must also consider the “legitimate interests in managing a jail”

and give “deference to policies and practices needed to maintain order and

institutional security.” Kingsley, 135 S. Ct. at 2474.

Defendants argue that they are entitled to summary judgment because the

uses of force in this case were objectively reasonable, and therefore there is no

constitutional violation. Defendants also argue that because there was no

constitutional violation, they are immune from suit under the doctrine of qualified

immunity. “The doctrine of qualified immunity protects government officials

‘from liability for civil damages insofar 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) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). “The entitlement is an immunity from suit

rather than a mere defense to liability . . . it is effectively lost if a case is

erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)

(emphasis in original). The Court agrees.

As mentioned above, although Plaintiff did not follow the rules for asserting

and disputing facts, Plaintiff did allege in his memorandum opposing summary

judgment a version of events which differs from Defendants’. Plaintiff’s stated

version of events is paraphrased as follows: After Tillman tased Plaintiff, Tillman

stood over Plaintiff and yelled “Do you want it again?” (Plaintiff argues that this

indicates Tillman’s intention was “to cause harm to Plaintiff and not to restore

discipline.”) Plaintiff then complied with Tillman’s demands, but Tillman leapt on

him aggressively. When Plaintiff rose to his feet, Tillman struck his upper lip with

a baton, then ran away from Plaintiff. When Plaintiff walked away from Tillman

and towards Al Arnaout and Moore, “Tillman used this opportunity to run in from

behind [ ] Plaintiff and strike him in the head” with a metal flashlight. Plaintiff

then turned around and headed towards Tillman, at which point Al Arnaout

knocked him to the floor. Davis then ran in and dropped his knee onto Plaintiff’s

eyes, causing a deep laceration. Davis also repeatedly hit Plaintiff about the head

and face after Plaintiff stopped resisting.

Although the summary judgment standard dictates that the Court view the

facts and any reasonable inferences in the light most favorable to the nonmoving

party, the Court cannot ignore incontrovertible evidence which clearly contradicts

Plaintiff's allegations. Wallingford v. Olson, 592 F.3d 888, 892 (8th Cir. 2010).

When opposing parties tell two different stories, one of which is blatantly

contradicted by the record, 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. Scott v. Harris, 550 U.S. 372, 380 (2007).

Here, the videos of the incident clearly contradict Plaintiff’s version of

events. The videos show that Plaintiff was the only instigator and aggressor, and

that Tillman and Davis did not attack him unprovoked. Because the videos clearly

contradict the version of the story told by Plaintiff, the Court must view the facts in

the light depicted by the videos. Wallingford, 592 F.3d at 892 (citing Scott, 550

U.S. at 381).

In the videos, Plaintiff gets up from the bench and walks to Tillman, Al

Arnaout, Moore and the female suspect. He shouts at and moves toward them,

ignoring Tillman and Al Arnaout’s commands to sit down. Plaintiff advances

menacingly on Tillman, who tases Plaintiff. Tillman then asks Plaintiff, in an even

tone, “Do you want it again?” Plaintiff’s contention that Tillman’s question is

evidence of Tillman’s malicious intent to harm Plaintiff and not to maintain order

is not reasonable. Rather, Tillman’s question and the calm tone used to ask it

support Tillman’s stated motivation to control the situation and maintain order by

warning Plaintiff that force would be used again if Plaintiff did not comply.

Plaintiff refuses to comply with Tillman’s orders and gets to his feet, while

grabbing and swatting at Tillman and knocking the taser gun out of Tillman’s

hand. If Tillman did strike Plaintiff in the lip at this time, which is not evident from

the videos and not reflected in Plaintiff’s medical records, it would have been an

objectively reasonable use of force given that Plaintiff refused to comply, actively

resisted, caused disorder in the booking room, and struck Tillman.

Plaintiff then picks up the taser gun and brandishes it while chasing Tillman

around the booking room counter. While Plaintiff chases him, Tillman hold up his

baton defensively. Several times, Plaintiff grabs or swats at Tillman’s baton with

his free hand while brandishing the taser gun in his other hand.

Tillman eventually gets to the opposite corner of the room from Plaintiff.

Plaintiff then moves toward the hallway in which Al Arnaout, Moore, and the

female suspect are standing. Plaintiff still brandishes the taser gun in a threatening

manner. As Al Arnaout tries to block Plaintiff with a janitor’s cart, Plaintiff attacks

Al Arnaout, pushing them both behind a shelf and briefly out of the camera’s view.

Tillman runs into the hallway and appears to slip as he tries to strike Plaintiff. The

video does not show Tillman striking Plaintiff with a metal flashlight, and the

video supports Defendants’ version of events that Tillman slipped. Even if

Plaintiff’s allegation that Tillman hit him in the head from behind with a flashlight

is true, that use of force would be objectively reasonable given the threat of

imminent harm to Al Arnaout, Moore and the female suspect, the escalating danger

of the situation caused by Plaintiff, and Plaintiff’s active violence and refusal to

comply.

After Tillman slips, Plaintiff turns around and repeatedly strikes Tillman,

who is now crouching or kneeling, on the head and body. Tillman gets his arm

around Plaintiff’s knees, at which point Al Arnaout runs at Plaintiff and tackles

Plaintiff by the upper body while Tillman holds his knees. As Tillman and Al

Arnaout struggle with Plaintiff on the floor, Davis enters the room and drops to his

knees to secure Plaintiff, whose arms are still flailing about. Davis stands up

holding one of Plaintiff’s arms before dropping to his knees again. Plaintiff

actively resists, still flailing his head, arms, and torso. Once he is kneeling for the

second time, Davis’ right arm moves only once in what could be a punching or

striking position, at all other times, Davis’ upper arms are at his side. Although

Davis’ hands cannot be seen, his arms are not moving in a way that would indicate

he is striking Plaintiff repeatedly in the head and face. It is undisputed that Davis’

actions in helping secure Plaintiff were intended to restore discipline, obtain

compliance, maintain order, and protect Al Arnaout and Tillman from further

injury. Even assuming as true that Davis struck Plaintiff with his knee when

kneeling down and then once with his hand, those two uses of force would be

reasonable given that Plaintiff was actively resisting, his hands were not secured,

and he had already seriously injured two jailers.

Neither Tillman nor Davis used excessive force during the incident. It is

plainly evident from the videos that Plaintiff posed a serious threat to Defendants,

Al Arnaout, Moore, and the female suspect, that Tillman tried repeatedly to get

Plaintiff to comply without force, and that when given the opportunity to comply

without force, Plaintiff instead attacked Tillman and Al Arnaout. Plaintiff never

stopped actively resisting and was finally subdued by no less than three officers. In

light of the circumstances, Defendants’ actions were objectively reasonable and do

not amount to a constitutional violation. Because there was no violation of

Plaintiffs constitutional rights, Defendants are also entitled to qualified immunity.

Conclusion

Plaintiffs claim that the booking room videos were altered is unfounded.

The contents of the videos clearly contradict Plaintiff's excessive force claims.

Plaintiff was disorderly, failed to comply with commands, physically attacked jail

personnel, and resisted submission even after being knocked to the floor. Each use

of force alleged by Plaintiff was objectively reasonable to maintain order and

safety in the booking room. Defendants are entitled to judgment as a matter of law.

Accordingly,

IT IS HEREBY ORDERED that Defendants’ Motion for Summary

Judgment [Doc. No. 45] is granted.

IT IS FURTHER ORDERED that Defendants’ Motion to Stay Discovery,

[Doc. No. 48] is denied as moot.

A separate Judgment in accordance with this Opinion, Memorandum and

Order is entered this same date.

Dated this 6" day of May, 2020.

—_deokbed ty

UNITED STATES DISTRICT JUDGE

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