Gaskin v. Fletcher

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

ANDREW CORY GASKINS, )

)

Plaintiff, )

)

v. ) Case No. 2:20-cv-463-RAH-WC

) [WO]

CITY OF WETUMPKA, et al., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

The underlying facts of this case begin with a motor vehicle accident and end

with the arrest and criminal conviction of Plaintiff Andrew Gaskins,1 who arrived at

the scene of the accident to help his mother, one of the drivers involved in the

collision.

Following these events, Gaskins brought this action against two of the on-

scene police officers, the City of Wetumpka, and Wetumpka’s Chief of Police. In

his Complaint, Gaskins brings claims for a violation of his First Amendment rights,

false arrest, excessive force, negligence, assault, and outrage. Pending before the

1 The Complaint uses the last name “Gaskin” and “Gaskins” interchangeably and Gaskins’s attorney filed the case

under the name “Gaskin.” However, the Plaintiff’s last name, according to the Plaintiff himself, is “Gaskins.”

Accordingly, the Court uses “Gaskins” throughout this opinion.

Court is the Defendants’ Motion for Summary Judgment. (Doc. 33.) The motion

has been fully briefed and is ripe for review.

I. BACKGROUND

On July 5, 2018, Gaskins’s mother was involved in a motor vehicle accident

near the intersection of US Highway 231 and Alabama Highway 14 in Wetumpka,

Alabama. (Doc. 35-1 at 13.) Wetumpka police quickly arrived on the scene. Shortly

after the police arrived, Gaskins arrived on the scene to check on his mother and to

document the accident. Gaskins pulled up to the accident in a white Chevrolet

Trailblazer SUV carrying himself, his eleven-year-old daughter, and his nine-year-

old son. (Id. at 8.)

Gaskins parked his SUV in the roadway next to his mother’s vehicle. Gaskins

then exited his SUV, and with permission from one of the police officers, began

unloading items from his mother’s car to prepare it to be towed. (Id. at 15.) After

Gaskins unloaded his mother’s car, police officers asked Gaskins to move his SUV

out of the roadway and onto the shoulder. (Id. at 17.) Gaskins complied and drove

the SUV onto the shoulder as requested. (Id.)

After parking, Gaskins exited his SUV and began to take pictures of the scene.

(Id.) At this point, an ambulance had arrived and began tending to Gaskins’s mother.

(Id. at 18.) Meanwhile, Gaskins continued to take pictures. (Id. at 17–18.)

This is where the parties’ stories largely begin to diverge. At some point,

according to Gaskins, an officer told Gaskins to “get your damn ass out of here.” (Id.

at 18–19.) But Gaskins did not leave the scene.2 Instead, Gaskins told the officer

that being a police officer did not give him the right to talk to Gaskins in that manner.

(Id. at 19.) Two more officers then approached—Officers David Fletcher and

Brandon Foster—and specifically told Gaskins to return to his vehicle.3 (Id. at 20.)

The officers claim that rather than immediately returning to his vehicle,

Gaskins became belligerent and continued to protest that he did not have to comply

with law enforcement. (Doc. 33-5.)

Gaskins, on the other hand, says he complied with the instruction to return to

his vehicle. There, he sat cross-legged in the trunk of the SUV and continued to

observe his mother. (Id. at 20, 22.) Fletcher and Foster then approached the open

back hatch of the SUV and ordered Gaskins to leave the scene. (Doc. 35-1 at 22.)

According to Gaskins, he was not given time to comply with this order. After

being instructed to leave by Fletcher and Foster, Gaskins tried to explain to the

2 For Gaskins’s part, he testified that he did not “get [his] damn ass out of here” because he did not understand what

the officer meant by saying “get your damn ass out of here.” That is, Gaskins claims that he was uncertain what the

officer meant by “here.” Was the officer telling him to step aside, to move to the shoulder, to go to his car, or to leave

the scene altogether? (See Doc. 35-1 at 21 (Responding to why he did not leave the road, Gaskins testified that the

officer “said to get your damn ass out of here. He did not say the road.”).)

3 While Gaskins contends that prior to this time he did nothing disruptive or said anything offensive other than

chastising an officer for being rude to him, Fletcher testified that “from the time he pulled up to the scene” Gaskins

“was very disruptive” and “would not listen to law enforcement and took a simple accident and turned it into a fiasco.”

(Doc. 33-2 at 52.)

officers that his mother was still on the scene, but before he could finish his sentence,

Fletcher and Foster reached inside the SUV, grabbed Gaskins by both arms, “ripped”

Gaskins out of the SUV face-first, “slammed” him down onto the ground, pinned

Gaskins’s arms behind his shoulders to immobilize him, and handcuffed his hands

behind his back. (Doc. 35-1 at 22–24, 31; Doc. 35-2 at 3.) Gaskins testified that he

never jerked away from the officers, or fought, or resisted the officers in any way

while in his SUV or as he was being arrested. (Doc. 35-1 at 41.)

The officers tell a different story of persistent arguing, refusals to leave, and

an attempt by Gaskins to pull away or resist when Foster began attempting to pull

Gaskins out of the SUV to arrest him for obstruction. (Doc. 33-5.)

But back to Gaskins’s story. Laying on the ground, Gaskins began screaming

for help. Between pleas for help, Gaskins began crying from confusion and pain. (Id.

at 24.) Gaskins’s children watched and screamed from the backseat. (Id.) While

restraining Gaskins, Foster looked at Gaskins and told him that he was “a piece of

shit.” (Id.) Then, Foster turned towards Gaskins’s kids, began yelling at them, and

told them that their father was a “piece of shit.” (Id.)

At this point, Officer Charles Shannon responded to Gaskins’s cries for help

and walked over and asked what Foster and Fletcher were doing. (Id. at 24–25.)

They told Shannon that Gaskins was resisting arrest. (Id. at 25.) According to

Gaskins, Shannon told Foster and Fletcher that Gaskins was not resisting arrest and

asked again, “What are y’all doing?” (Id.) And then Shannon told Gaskins to “just

do what they ask.” (Id.) Fletcher then lifted Gaskins to his feet by his handcuffed

wrists. (Id. at 33.) Once standing, Gaskins was escorted to a police vehicle and

placed inside. (Id. at 25.)

After Gaskins had been secured in the police vehicle, one of the officers went

to retrieve Gaskins’s children. As Gaskins’s son puts it, the officer reached into the

cracked backseat window and grabbed at the Gaskins children, telling them that their

dad was a “piece of S-word, and he was going to jail and [they] were going to DHR.”

(Doc. 35-2 at 5.) The children got out of the SUV and were put into the back of a

police vehicle. (Id.)

Gaskins was then taken to the Elmore County Jail and charged with

obstruction of government operations. Gaskins was released from the jail a few

hours later, but not before speaking with Fletcher again. According to Gaskins,

Fletcher approached him and apologized for the ordeal, shaking Gaskins’s hand, and

telling Gaskins that he would get all his money back and that Fletcher “would go to

bat for [Gaskins] in court.” (Id. at 27.)

But the criminal obstruction charge against Gaskins proceeded. Roughly six

months after his arrest, Gaskins was convicted of the charge in the Wetumpka

Municipal Court. (Doc. 33-9.) Gaskins appealed, but ultimately plead guilty to

obstruction in circuit court. (Doc. 33-10.)

Gaskins contends that the force used on him during his arrest tore his rotator

cuff and bicep, injuries for which Gaskins would later undergo surgery. (Id. at 5,

33.) He also claims that his knees were scraped, gashed open, and caused to bleed.

(Id. at 4–5.)

II. THE CLAIMS

Gaskins filed suit against the City of Wetumpka, Wetumpka Police Chief

Greg Benton, Officer David Fletcher and Officer Brandon Foster. (Doc. 1.) His

Complaint brings the following federal and state law claims:

• Count I – First Amendment Retaliatory Arrest under §1983

• Count II – First Amendment Prior Restraint under §1983

• Count III – False Arrest under §1983

• Counts IV and V– Excessive Force under §1983

• Count VI – Negligence

• Count VII – Assault against Officer David Fletcher

• Count VIII – Outrage against Officer David Fletcher

III. JURISDICTION AND VENUE

Subject matter jurisdiction is conferred by 28 U.S.C. § 1331 as to Gaskins’s

federal causes of action, and the Court exercises supplemental jurisdiction over the

state law claims pursuant to 28 U.S.C. § 1367. The parties do not contest personal

jurisdiction or venue, and there are adequate allegations to support both. See 28

U.S.C. § 1391.

IV. STANDARD OF REVIEW

Summary judgment is appropriate where the pleadings, depositions, answers

to interrogatories, admissions on file, and any affidavits show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law. Fed. R. Civ. P. 56(a), (c). No genuine issue of material

fact exists if the opposing party fails to make a sufficient showing on an essential

element of her case as to which she would have the burden of proof. Celotex, 477

U.S. at 322–23.

Just as important, the “mere existence of a scintilla of evidence in support of

the [non-moving party’s] position” is insufficient to defeat a motion for summary

judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In making

this assessment, the Court must “view all the evidence and all factual inferences

reasonably drawn from the evidence in the light most favorable to the nonmoving

party,” Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285

(11th Cir. 1997), and “resolve all reasonable doubts about the facts in favor of the

non-movant,” United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of Am., 894 F.2d

1555, 1558 (11th Cir. 1990).

V. DISCUSSION

At the Court’s recent pre-trial conference, Gaskins conceded that summary

judgment is appropriate as to the state law claims for negligence, assault, and outrage

and the federal § 1983 claims for false arrest and a violation of the First Amendment,

representing to the Court that Gaskins now is only proceeding under his excessive

force claims; that is, Counts IV and V. (Doc. 46.) Therefore, as a threshold matter,

summary judgment is due to be granted on all claims alleged in the Complaint other

than the excessive force claims in Counts IV and V on grounds that these claims

have been abandoned. The Court now turns to the two remaining counts.

Gaskins brings three separate excessive force claims: two against the

individual officers at the accident scene and one against the City of Wetumpka. In

Count IV, Gaskins contends that Officer Fletcher violated his Fourth Amendment

right to be free from excessive force by “jerking Gaskins up by his wrist while

handcuff[ed] behind his back.” (Doc. 1 at 6.) In Count V, Gaskins contends that

Officers Fletcher and Foster used excessive force “while arresting” Gaskins, and that

the City of Wetumpka violated his Fourth Amendment right to be free from

excessive force through the City’s policies and customs. (Doc. 1 at 6; Doc. 35 at 4.)

A. The Arrest

In Count V, Gaskins contends that Officers Fletcher and Foster used excessive

force “while arresting” Gaskins. (Doc. 1 at 6.) Unlike Count IV, which specifically

targets how Gaskins was lifted by his wrists after being handcuffed on the ground,

Count V does not provide any detail as to what specific use of force during his arrest

is being challenged. Nevertheless, the Complaint in its entirety targets the manner

by which the officers allegedly “ripped” Gaskins from his SUV and “[threw] him to

the ground” face-first without warning. (Doc. 35 at 4.) Therefore, the Court will

proceed to analyze Count V under this central allegation; that is, the manner by

which Gaskins was removed from his SUV.

Officers Fletcher and Foster have asserted the defense of qualified immunity.

Qualified immunity serves as a total bar to suit. To be protected by qualified

immunity, a government official must first establish that he was acting within the

scope of his discretionary authority. Harbert Int’l Inc. v. James, 157 F.3d 1271, 1281

(11th Cir. 1998). Because it is undisputed in this case that all the officers involved

were acting within their discretionary authority, it falls to Gaskins to “show that

qualified immunity should not apply.” Lewis v. City of W. Palm Beach, 561 F.3d

1288, 1291 (11th Cir. 2009.) To do so, Gaskins must establish (1) that the officers

violated a constitutional right and, if so, (2) that the relevant right was “clearly

established” at the time of the alleged misconduct. See Crocker v. Beatty, 995 F.3d

1232, 1240 (11th Cir. 2021).

Fletcher and Foster (the Officer Defendants) argue that they are entitled to

qualified immunity because (1) no constitutional right was violated when they

removed Gaskins from his vehicle and (2) that even if there was a violation of a

constitutional right, the right had not been clearly established at the time of the

alleged violation. The Court disagrees on both accounts and finds, as explained

below, that the Officer Defendants are not entitled to qualified immunity at this stage

in the litigation.

(1) Constitutional Violation4

“The Fourth Amendment encompasses the right be free from the use of

excessive force during an arrest.” Scott v. City of Red Bay, Alabama, 686 F. App’x

631, 633 (11th Cir. 2017). While making an arrest, an officer has the “the right to

use some degree of physical force . . . but the force used must be reasonably

proportionate to the need for that force.” Id. (quoting Lee v. Ferraro, 284 F.3d 1188,

1190 (11th Cir. 2002)) (internal quotations omitted).

“In an excessive force case arising out of an arrest, whether a constitutional

violation occurred is governed by the Fourth Amendment’s ‘objective

reasonableness’ standard.” Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir.

2008). To determine whether an officer’s use of force was objectively reasonable,

4 A claim of excessive force “presents a discrete constitutional violation relating to the manner in which an arrest was

carried out.” Bashir v. Rockdale Cty., Ga., 445 F.3d 1323, 1332 (11th Cir. 2006). The claim is “independent of whether

law enforcement had the power to arrest” in the first place. Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008).

Here, Gaskins does not predicate his excessive force claim solely on the allegation the officers lacked the authority to

arrest him. Because his excessive force claim against Fletcher and Foster is “discrete” from his false arrest claim, the

Court will “discuss the excessive force claim without regard to the propriety of the underlying arrest.” Andrews v.

Scott, 729 F. App'x 804, 810 (11th Cir. 2018).

courts look to several factors, including: “(1) the need for the application of force,

(2) the relationship between the need and the amount of force used, (3) the extent of

the injury inflicted and, (4) whether the force was applied in good faith or

maliciously and sadistically.” Id.

The Eleventh Circuit recently addressed a materially similar excessive force

claim in Ingram v. Kubik, No. 20-11310, 2022 WL 1042688, at *5 (11th Cir. Apr.

7, 2022). There, the court concluded that the plaintiff had satisfied his burden of

showing that the officer had violated the Fourth Amendment during an October 2017

interaction with law enforcement:

All of the factors articulated in Graham weigh in favor of [Ingram].

Although Kubik implies that “the use of force [was] justified because

suicidal subjects sometimes make erratic moves that can jeopardize the

safety of the officers,” “viewing the [alleged] facts in the light most

favorable to [Ingram],” there is “no indication that [Ingram] made any

threatening moves toward the police.” The deputies had searched

Ingram and confiscated the knife with which he had cut himself, so they

knew he was unarmed. Before Kubik body slammed him, Ingram had

his hands over his head. And there was no sign that he sought to flee

when he was seized. Accepting these allegations as true, Ingram “was

not actively resisting arrest, and there is no [allegation] that he struggled

with the police” at the time of the seizure. Although Kubik could

lawfully seize Ingram, the “extent of the injury [he] inflicted” was

significant enough to confirm the already tenuous nature of the

relationship between the “need for application of force” and the

“amount of force used.”

We conclude that the force used was not “reasonably proportionate to

the need for that force.” “Because [Ingram] was not committing a

crime, resisting arrest, or posing an immediate threat to the officers at

the time he was [body slammed],” Kubik “used excessive force when

apprehending [Ingram].” So, Ingram has satisfied his burden to show

that “the officer violated a constitutional right.”

2022 WL 1042688, at *5–6.

Similarly, in the instant case, according to Gaskins’s testimony, at the time

Gaskins was slammed to the ground, he was not resisting arrest, he was not

threatening, he was not attempting to flee, and he was docile, sitting cross-legged in

the trunk of his SUV with the lift-gate open so that he could observe his mother as

she was being treated and placed inside an ambulance. While Gaskins sat in the

SUV, the Officer Defendants approached and told Gaskins to leave the scene, but

before Gaskins had time to respond that he was observing his mother, the Officer

Defendants reached into the SUV, grabbed Gaskins’s arms, “ripped” him out of his

SUV, and slammed him face-first on the ground, thereby causing lacerations to his

knees and injuries to his shoulder and arm. Gaskins also testified that he never moved

away from the Officer Defendants, never resisted, was compliant, and never did

anything that called for the substantial and injurious degree of force used against

him. As Gaskins portrays it, he was merely present at the accident scene to aid his

mother and document the accident. Unsurprisingly, the Officer Defendants tell a

different story of belligerence, disobedience, and resistance. At this procedural stage,

it is not for this Court to pass judgment on whose story is accurate, but rather to

apply the objective reasonableness factors to the facts viewed in the light most

favorable to Gaskins.

Applying those factors here, the facts demonstrate an unreasonable and

excessive use of force. The amount of force used by an officer in carrying out an

arrest “must be reasonably proportionate to the need for that force, which is

measured by the severity of the crime, the danger to the officer, and the risk of

flight.” Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002) (citing Graham v.

Connor, 490 U.S. 386, 396 (1989)). At the time of his arrest, Gaskins had not and

was not committing any severe crime, he was unarmed and docile, he posed no threat

to the officers, he obeyed instructions, he was sitting in the back of his SUV, he was

not attempting to evade or flee, and he did not resist;5 therefore there was “no

apparent need or provocation for this alleged degree of force,” which resulted in

serious injuries to Gaskins’s shoulder, arm, and knees. See Andrews v. Scott, 729 F.

App’x 804, 811 (11th Cir. 2018). All told, under Gaskins’s version of the facts, the

Court finds the first three objective reasonableness factors weigh in Gaskins’s favor.

And as to the fourth factor, whether the force was applied in good faith or

maliciously, Gaskins testified that both officers used foul, threatening, and vitriolic

language toward him and his children, and that Fletcher apologized to Gaskins after

the incident. See Hadley, 526 F.3d at 1329 (holding that punching a subdued arrestee

5 While the Officer Defendants ordered Gaskins to leave the scene while Gaskins was in the SUV, the officers did not

give Gaskins time to respond to that order before ripping him out of the vehicle—rendering the order hollow. “In other

words, [Gaskins] could not resist if he had no time to comply.” Brown v. Haddock, No. 5:10-CV-130/RS-GRJ, 2011

WL 1655580, at *4 (N.D. Fla. May 2, 2011) (finding officers were not entitled to qualified immunity where a

complaint and non-violent arrestee was given a command but not given “time to respond to the officer’s command”

before being “taken to the ground and tased”).

in the stomach and telling him to “[s]hut up, n***er” constituted excessive force).

These statements by the officers, if true, are indicative that their actions may not

have been carried out in good faith. Therefore, the Court finds that the final factor

also weighs in Gaskins’s favor.

All factors weighing in Gaskins’s favor, the Court concludes the force used to

effectuate Gaskins’s arrest was unreasonable and excessive. Gaskins has satisfied

his burden that the Officer Defendants violated a constitutional right.

(2) Clearly Established

The next consideration is whether the right against excessive force under these

facts was clearly established at the time the violation occurred; here, in July 2018.

See Crocker, 995 F.3d at 1240.

A right is “clearly established” when it puts all reasonable officials on fair

notice that the alleged conduct is unlawful. Id. The Eleventh Circuit has recognized

three specific paths to “clearly establish” a right: (1) binding case-law, from either

the Eleventh Circuit or the United States Supreme Court “with indistinguishable

facts,” (2) “a broad statement of principle within the Constitution, statute, or case

law” that applies with “obvious clarity to the circumstances,” or (3) “conduct so

egregious that a constitutional right was clearly violated, even in the total absence

of case law.” Id. (quoting Lewis, 561 F.3d at 1291–92). The first path is favored

while the second two paths are “rarely trod” because the Supreme Court has

admonished lower courts to not “define clearly established law at a high level of

generality.” Id.

Applying this standard here, the Court concludes—as a matter of broad,

clearly established principle and binding caselaw—that the Officer Defendants were

on fair notice that, while effectuating an arrest, “ripping” a compliant, docile, non-

threatening, non-resisting, unarmed person from his vehicle, without warning or

directive, and then slamming him headfirst to the ground constituted excessive force.

See Ingram, 2022 WL 1042688, at *5 (collecting and relying on cases published

before 2018); see also Smith v. Mattox, 127 F.3d 1416, 1420 (11th Cir. 1997)

(establishing that if an arrestee demonstrates compliance, but the officer nonetheless

inflicts substantial injury using ordinary tactics, then the officer may have used

excessive force); Patel, 959 F.3d at 1340 (citing Stephens v. DeGiovanni, 852 F.3d

1298, 1328 & n.33 (11th Cir. 2017)) (rejecting the “argu[ment] that [Eleventh

Circuit] precedent prohibiting the use of gratuitous and excessive force against non-

resisting suspects applies only when the suspect is handcuffed.”).

The Eleventh Circuit discussed a similar concern in Ingram which involved

the use of force during an October 2017 incident. There, the Court explained that it

“is clear that serious and substantial injuries caused during a suspect's arrest when a

suspect is neither resisting an officer's commands nor posing a risk of flight may

substantiate an excessive force claim.” Ingram, 2022 WL 1042688, at *5. The court

further noted that Eleventh Circuit precedent prior to October 2017 had clearly

established that a “headfirst body slam” against “someone who was not resisting

arrest” constitutes excessive force. Id. at *6. Thus, reasonable officers were on

notice that “the use of seriously injurious force against a compliant, docile, non-

resisting, and unarmed subject . . . constitutes excessive force.” Id. (quoting

Sebastian, 918 F.3d at 1311).

Here, Gaskins has presented evidence, though hotly disputed, that he was

compliant, docile, non-resisting, and unarmed, before he was ripped out of his SUV

without warning, and slammed head-first onto the ground. Therefore, consistent with

Ingram’s analysis and the many cases cited therein, it was clearly established as of

July 2018 that the Officer Defendants’ use of force here was excessive and

unconstitutional. Although the Officer Defendants dispute Gaskins’s version of

events, those are questions of fact which preclude the entry of summary judgment

on qualified immunity grounds. Summary judgment is denied as to Count V.

B. Officer Fletcher Lifting Gaskins by his Handcuffed Wrists

In Count IV, Gaskins alleges that Officer Fletcher used excessive force when

he lifted Gaskins off the ground and to his feet by his handcuffed wrists, which in

turn caused or contributed to injuries to his shoulder and arm.6 Fletcher contends

that he is entitled to qualified immunity on this claim.

Here, it is unclear, that as of July 2018, whether lifting an arrestee off the

ground by his handcuffed wrists—which were handcuffed behind his back—

constitutes excessive force. See Huebner v. Bradshaw, 935 F.3d 1183, 1191 (11th

Cir. 2019) (“Officers routinely pull arrestees arms’ behind their backs . . .”); see also

Rodriguez v. Farrell, 280 F.3d 1341, 1351–52 (11th Cir. 2002) (holding that even

where an officer “grabbed plaintiff's arm, twisted it around plaintiff's back, jerk[ed]

it up high to the shoulder and then handcuffed plaintiff as plaintiff fell to his knees

screaming that [the officer] was hurting him,” the officer's actions did not constitute

excessive force); see also Vinyard v. Wilson, 311 F.3d 1340, 1348 & n.13 (11th Cir.

2002) (collecting cases holding that painful handcuffing and pushing of arrestees,

including against vehicles, is not excessive force). Indeed, Eleventh Circuit case law

suggests that it is not. And in opposition to Fletcher’s summary judgment motion,

Gaskins offers nothing to substantiate that Fletcher’s actions constituted excessive

force, either as a result of binding case law or in terms of a broader, clearly

established principle.

6 Gaskins admits that he sought treatment for shoulder cramps earlier that day, and his medical records reflect that he

sought treatment for bicep pain approximately fifteen days earlier. (Doc. 35-1 at 7; Doc. 33-14 at 1.)

Accordingly, the Court concludes that Officer Fletcher is entitled to qualified

immunity based on his pulling Gaskins up from the ground by his wrists. Summary

judgment is therefore granted as to Count IV.

C. The City of Wetumpka

Finally, in Count V, Gaskins brings an excessive force claim under § 1983

against the City of Wetumpka, otherwise known as a Monell claim. Monell v. Dep’t

of Soc. Servs., 436 U.S. 658 (1978).

Gaskins’s Complaint alleges, in an extremely bare-bones fashion, that the

City’s “policies, procedures, practices, or customs within the [Wetumpka Police

Department] allow, among other things, the use of excessive force when other more

reasonable and less drastic measures are available.” (Doc. 1 at 7.) Neither Gaskins’s

Complaint nor his brief in response to summary judgment provide any further detail

as to what policy or custom within the police department caused the alleged use of

excessive force against him.

Under Monell, municipalities are subject to § 1983 liability “when execution

of a government’s policy or custom, whether made by its lawmakers or by those

whose editcs or acts may be fairly said to represent official policy, inflicts the

injury[.]” Monell, 436 U.S. at 694.

The only policy that Gaskins points to states that Wetumpka police officers

“may only use that force necessary to effect an arrest, and in response to,

accomplish[ing] an assigned task lawfully.” (Doc. 35 at 4.) It is unclear if Gaskins

is alleging that this policy itself is unconstitutional or whether Gaskins is pointing to

this policy as evidence that the Officer Defendants’ actions were unconstitutional.

Assuming that Gaskins is alleging that the policy itself is unconstitutional, his

claim fails. There can be little doubt that on its face the City’s policy regarding the

use of force is constitutional. To that end, the policy permits force only when

“necessary” and in order to effect a “lawful” arrest or task. That language is clearly

within the confines of the Constitution. See Graham v. Connor, 490 U.S. 386, 397,

109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443 (1989) (requiring that force need not be

“necessary” but that which is “objectively reasonable”).

Policy aside, for Gaskins’s Monell claim to survive summary judgment under

a custom theory, Gaskins “must bring forth some evidence of a pattern of improper

training to sustain his claim, and he must show that [the city] was aware of the

deficiencies in the program.” Mercado v. City of Orlando, 407 F.3d 1152, 1161 (11th

Cir. 2005); see also City of Canton v. Harris, 489 U.S. 378, 387 (1989) (holding that

constitutional policies can become unconstitutionally applied through a repeated

failure to train). Furthermore, Gaskins must show “that this training or failure to train

amounted to ‘deliberate indifference’ on the part of [the city].” Id. (quoting City of

Canton, 489 U.S. at 389). And yet, Gaskins has failed to present any evidence

showing that the City engaged in a deliberately indifferent pattern or custom of

improperly training officers.

For these reasons, Gaskins has failed to support his Monell claim, and

summary judgment is due to be granted as to Count V against the City.

VI. CONCLUSION

For the foregoing reasons, it is hereby ORDERED as follows:

1. The Motion for Summary Judgment (Doc. 33) is DENIED as to the

excessive force claim in Count V against Defendants David Fletcher and

Brandon Foster.

2. The Motion for Summary Judgment (Doc. 33) with respect to the remaining

claims is GRANTED.

3. The City of Wetumpka and Gregory Benton are DISMISSED as defendants

in this matter.

4. The excessive force claim in Count V shall proceed against Defendants

David Fletcher and Brandon Foster.

DONE, on this the 21st day of April 2022.

/s/ R. Austin Huffaker, Jr.

R. AUSTIN HUFFAKER, JR.

UNITED STATES DISTRICT JUDGE