Pettaway v. Barber

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NOTHERN DIVISION

WALTER PETTAWAY, as administrator )

of the Estate of Joseph Lee Pettaway, )

deceased, )

)

Plaintiff, )

)

v. ) CIVIL ACT. NO. 2:19-cv-008-ECM

) (WO)

NICHOLAS D. BARBER, et al., )

)

Defendants. )

MEMORANDUM OPINION and ORDER

Now pending before the Court are the Defendant Ryan Powell’s (“Powell”) motion

for summary judgment (doc. 374), the Defendants Nicholas D. Barber (“Barber”), Ernest

N. Finley (“Finley”), Neal Flournoy (“Flournoy”), Michael Green (“Green”), Powell,

Bianka Ruiz (“Ruiz”), Joshua Smith (“Smith”), The City of Montgomery, Alabama

(“Montgomery”), Justin Thrasher (“Thrasher”), and Keiundra Watts’ (“Watts”) motion for

summary judgment (doc. 378), and multiple motions to exclude evidentiary submissions

and expert testimony. After briefing was completed, the Plaintiff Walter Pettaway

(“Pettaway”) dismissed Green, Thrasher, Powell, Smith, Watts, Ruiz, and Flournoy as

Defendants.1 (Doc. 424). On January 12, 2023, the Court held oral argument on the

1 Because Green, Thrasher, Powell, Smith, Watts, Ruiz, and Flournoy are no longer Defendants, their

motions for summary judgment (docs. 374, 378) are DENIED as moot.

pending dispositive motions. The relevant party arguments and concessions are referenced

herein.

Pettaway now brings four claims against the remaining Defendants.2 Count One is

a Fourth Amendment unlawful seizure claim against Barber, brought pursuant to 42 U.S.C.

§ 1983. Count Two is a Fourth Amendment3 excessive force claim against Barber, brought

pursuant to § 1983. Count Three is a Fourteenth Amendment claim against Finley4 and

Montgomery for implementing customs and practices that violated their constitutional

obligation to provide medical care. Count Four is a wrongful death claim under Ala. Code

§ 6-5-410 against Barber, Finley, and Montgomery.

Upon consideration of the briefs, evidence, and applicable law, and for the reasons

that follow, the Defendants’ motion for summary judgment is due to be GRANTED in part

and DENIED in part.

2 The operative complaint also alleged a Fourth or Fourteenth Amendment deliberate indifference claim

against Barber, brought pursuant to § 1983. At oral argument, Pettaway moved to dismiss this claim, which

the Court granted.

3 The operative complaint alleges that Barber used excessive force in violation “of the Fourth and/or

Fourteenth Amendments.” (Doc. 205 at 11). At oral argument, Pettaway conceded that his claim derives

only under the Fourth Amendment. To the extent Pettaway asserts a cause of action under the Fourteenth

Amendment, that claim is due to be dismissed.

4 While Pettaway alleged in the complaint that “[a]ll claims made herein are made against each of the

individual defendants in their individual capacities,” (doc. 205 at 3), he clarified at oral argument that his

claims against Finley were in his official capacity only. Pettaway conceded that the official capacity claims

against Finley were duplicative of the claims against the city. Accordingly, the claims against Finley in his

official capacity are due to be dismissed. Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991)

(“[S]uits against municipal officers are therefore, in actuality, suits directly against the city that the officer

represents.”); Holley v. City of Roanoke, 162 F. Supp. 2d 1335, 1341 n.2 (M.D. Ala. 2001) (dismissing

claims against municipal officer as duplicative of claims against city).

I. JURISDICTION

The Court has original subject matter jurisdiction of this matter pursuant to 28

U.S.C. § 1331. The Court has supplemental jurisdiction of the Plaintiff’s state law claims

pursuant to 28 U.S.C. § 1367(a).

Personal jurisdiction and venue are uncontested, and the Court concludes that venue

properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.

II. LEGAL STANDARDS

A. Motion to Exclude Under Rule 702

A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help

the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of

the case.

Fed. R. Evid. 702.

This Rule requires a trial judge to ensure that an expert’s testimony rests on a

reliable foundation and is relevant. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,

587 (1993). In determining the admissibility of expert testimony under Rule 702, a court

must conduct a rigorous three part inquiry, considering whether: (1) the expert is qualified

to testify competently regarding the matters he intends to address; (2) the methodology by

which the expert reaches his conclusions is sufficiently reliable as determined by the sort

of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the

application of scientific, technical, or specialized expertise, to understand the evidence or

to determine a fact in issue. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562

(11th Cir. 1998).

B. Motion for Summary Judgment

“Summary judgment is proper if the evidence shows ‘that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”

Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1311 (11th Cir. 2018) (quoting Fed. R. Civ.

P. 56(a)). “[A] court generally must view all evidence and make all reasonable inferences

in favor of the party opposing summary judgment.” Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l

Univ., Inc., 830 F.3d 1242, 1252 (11th Cir. 2016). However, “conclusory allegations

without specific supporting facts have no probative value.” Jefferson v. Sewon Am., Inc.,

891 F.3d 911, 924–25 (11th Cir. 2018). If the record, taken as a whole, “could not lead a

rational trier of fact to find for the non-moving party,” then there is no genuine dispute as

to any material fact. Hornsby-Culpepper, 906 F.3d at 1311 (citing Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

The movant bears the initial burden of demonstrating that there is no genuine dispute

as to any material fact, and the movant must identify the portions of the record which

support this proposition. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

The movant may carry this burden “by demonstrating that the nonmoving party has failed

to present sufficient evidence to support an essential element of the case.” Id. The burden

then shifts to the non-moving party to establish, by going beyond the pleadings, that a

genuine issue of material fact exists. Id. at 1311–12.

The Court construes the facts in the light most favorable to the non-movant plaintiff5

and draws all reasonable inferences in his favor. Stewart v. Booker T. Washington Ins., 232

F.3d 844, 848 (11th Cir. 2000) (“In assessing whether there is any ‘genuine issue’ for trial,

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’ and ‘resolve all reasonable

doubts about the facts in favor of the non-movant.’ Moreover, the court must avoid

weighing conflicting evidence or making credibility determinations.” (citations omitted)).

III. FACTS

Plaintiff Walter Pettaway is decedent Joseph Lee Pettaway’s brother and the

Administrator of Pettaway’s estate. On July 8, 2018, Finley was the Police Chief of the

City of Montgomery, Barber was a canine officer for the Montgomery Police Department

(“MPD”), and Green, Thrasher, Powell, Smith, Watts, Ruiz, and Flournoy were MPD

officers.

This case concerns a tragic chain of events that took place at 3809 Cresta Circle

(“the home”) in Montgomery, Alabama on July 8, 2018. The home6 was owned by Norris

Harris (“Harris”). Prior to July 2018, the home fell into a state of disrepair and was

uninhabitable. Harris came to an agreement with James Jones (“Jones”), who had

previously lived in the home, to repair the home. Jones would organize and fund the

home’s repair in exchange for a reduction in rent to live in the home once it was restored.

5 Because this ruling addresses the Defendants’ motion for summary judgment, the Court considers

Pettaway the non-movant.

6 While Pettaway challenges whether the structure located at 3809 Cresta Circle could be considered a home

on July 8, 2018, the distinction does not impact the Court’s legal analysis.

Garry Dixon7 and Pettaway, Jones’ cousin and childhood friend respectively, helped

Jones repair the home. In the months leading up to July 2018, Dixon and Pettaway helped

Jones paint, install flooring, and complete similar tasks around the home. As repairs made

the home more habitable, Jones and Dixon would occasionally stay the night at the home

after making repairs. There is no evidence that Pettaway ever stayed overnight in the home.

The home did not have running water or electricity in July 2018.

On Saturday July 7, 2018, Jones, Pettaway, and Dixon installed a back window in

one of the home’s bedrooms. After finishing work for the day, they had a barbecue in the

home’s back yard with friends and family. Around 10:30 or 11:00 that evening, everyone

in attendance began to go home. Dixon, who had Jones’ permission to stay the night, was

the only person that remained at the home after the barbecue. Jones did not give anyone

else permission to stay the night in the home.

Early Sunday morning, Dixon awoke to what sounded like knocking at the door.

Dixon did not open the door but soon heard another noise. When Dixon investigated that

noise, he saw a man’s hand inside a bedroom closet. Dixon exited the home and called the

police from outside. Dixon also called Jones, who decided to drive to the home.

After Dixon’s call, police sent out a dispatch for a suspected burglary and requested

a canine unit on the scene. Watts and other early-arriving officers formed a perimeter

around the home. Those officers observed that a back window had been removed from its

frame. There is no evidence that these officers made any attempt to communicate with the

7 The spelling of Dixon’s last name varies throughout the parties’ evidentiary submissions. The Court has

adopted the spelling used on the Docket. (Doc. 371-25).

person inside the home, despite several officers having access to loudspeakers. Barber was

the canine officer on duty that night and reported to the home after Watts but before Jones.

Barber was wearing his body camera, and the footage has been submitted into evidence.

The following facts are taken from Barber’s and Watts’ body camera footage.

Barber arrives at the home around 2:58 A.M. Barber is told that police are still

waiting for Jones, the homeowner, to arrive.8 Because MPD Canine Bureau Policies and

Procedures provided that a canine unit may not search a residential home without the

permission of the homeowner, Barber waited for Jones to arrive before taking further

action. While waiting for Jones, Barber has a conversation with Green and Dixon. Dixon

tells officers that, other than the intruder, there are no people, weapons, or animals in the

home. Dixon also tells officers that when he was in the home, he heard a knocking sound.

Dixon did not answer the door because he did not know a reason that anyone would be at

the door. Dixon explains that he saw a man’s hand in a bedroom closet and describes where

that room is located. Dixon tells officers that the home is located in a rough neighborhood.

Dixon does not tell officers that the home lacks power, and Barber did not know this fact

when he entered the home. (Doc. 372-6 at 63).

When Jones arrives, he gives officers permission to search the home with a canine.

At 3:11, Barber approaches the front door with Niko, his canine partner. Barber knocks on

the door at 3:11:26 and calls out at 3:11:34. Barber knocks a second time at 3:11:39 and

8 Dixon mistakenly told police that Jones was the homeowner.

calls out a second time at 3:11:42. Barber deploys Niko into the home off-leash at 3:11:45.

Initially, Barber remains outside the front door.

At 3:12:15, Barber enters the home’s living area. Niko is down the hallway

searching another room. Niko searches the home for the next two minutes and at 3:14:22

bites down on bedding before Barber redirects him. At 3:15:37, Niko crawls under a bed

and Pettaway cries out. Presumably, Niko initiates his bite at this point.

Barber calls out at 3:15:41 as Niko crawls further under the bed, and Pettaway

continues to scream. Barber first instructs Pettaway to get out from under the bed at

3:15:45. Pettaway moves around under the bed at 3:15:47 and pleads with Barber to let

the dog off. Barber continues to tell Pettaway to get out from under the bed and encourages

Niko. Pettaway’s leg emerges from under the bed at 3:15:58. Barber continues to

encourage Niko and instruct Barber to get out from under the bed as Pettaway continues to

scream.

At 3:16:01 Pettaway tells Barber that he is trying to get out from under the bed but

cannot; Barber continues to instruct Pettaway to get out from under the bed. Pettaway’s

arms emerge at 3:16:32, and Barber tells Pettaway to show his hands and get on his

stomach. Niko is seen attached to Pettaway’s leg at 3:16:39. When Pettaway’s hands are

visible at 3:16:44, Barber tells Pettaway to give him his hands. Pettaway immediately

complies, and Barber begins to handcuff Pettaway at 3:16:48. Barber appears to finish

handcuffing Pettaway at 3:16:57. At 3:17:00 Barber tells Pettaway that “he’s coming,”

and then Barber physically chokes Niko off of Pettaway to disengage the bite.

At 3:18:08, Barber requests medical assistance for Pettaway on his radio. Barber

tells Pettaway to “hang tight” on the bedroom floor and walks Niko out of the house. After

Barber and Niko exit, Watts and several other officers enter the home to monitor Pettaway.

At 3:22:33, officers begin moving Pettaway outside the home to await emergency

medical technicians (“EMTs”). A large amount of blood is left on the hallway floor as

Pettaway is dragged outside. Officers set Pettaway on the ground outside the home around

3:23:20 and stand around him. The officers do not attempt first aid or medically assist

Pettaway. An EMT approaches the scene at 3:27:26. Pettaway is sent to the hospital but

dies shortly afterwards. At the time, the MPD had a policy prohibiting officers from

providing medical assistance to persons injured in a police endeavor unless the officer had

medical training in that form of assistance. Besides CPR, MPD did not, at the relevant

time, provide any first aid training to its officers.

On September 8, 2021, Walter Pettaway, representing Joseph Pettaway’s estate,

filed the Third Amended Complaint (“complaint”) alleging five claims against the

Defendants, four of which remain pending: Fourth Amendment unlawful seizure, brought

pursuant to § 1983 against Barber; Fourth Amendment excessive force, brought pursuant

to § 1983 against Barber; a Fourteenth Amendment claim against Finley and Montgomery

for implementing customs and practices that violated their constitutional obligation to

provide medical care; and wrongful death under Ala. Code § 6-5-410 against Barber,

Finley, and Montgomery. The Defendants have moved for summary judgment on all

claims.

IV. DISCUSSION

The Court will first address the motions to exclude. The Court will then address the

motion for summary judgment on Pettaway’s federal and state law claims, beginning with

the federal claims.

A. Motions to Exclude

1. Pettaway’s Motion to Exclude Ricky Farley.

Pettaway moves to exclude the testimony of Ricky Farley (“Farley”). (Doc. 373).

The Defendants offer Farley as an expert in police canines. Farley works as a canine trainer

at Alabama Canine Law Enforcement Training Officer’s Center, Inc. Pettaway argues that

Farley is not qualified to testify because Farley has never been employed as a police officer,

is not an expert in excessive force, has not been trained on various police standards, is not

an expert on Graham v. Connor,9 did not diligently review the record, and impermissibly

draws conclusions of fact.

Specifically, Pettaway argues that Farley cannot testify that Barber’s warnings were

loud enough for Pettaway to hear or that Pettaway knew police were outside the home.

Pettaway further argues that Farley cannot testify about the severity of Pettaway’s crime

because Farley did not read Barber’s deposition.

The Defendants argue that Farley is qualified because he trains service canines, is

familiar with the choke-off procedure, and trains handlers on how to properly utilize police

9 Graham v. Connor, 490 U.S. 386 (1989).

dogs. The Defendants argue that Farley is qualified to testify that deploying Niko was

justified under the circumstances.

After reviewing the motions, the Court finds that Farley is qualified as an expert in

canine training and procedures and that Pettaway’s criticism regarding Farley’s testimony

goes to weight and not to admissibility. The Motion to Exclude is, therefore, due to be

DENIED.10

2. The Defendants’ Motion to Exclude Ernest Burwell.

Pettaway offers Ernest Burwell (“Burwell”) as an expert in police procedures. (Doc.

384). The Defendants argue that Burwell is not qualified to testify as an expert because

his methodology is flawed, his testimony draws improper legal and factual conclusions,

and he is not competent to provide opinions on police standards in Alabama.

In response to the Defendants’ motion to exclude, Pettaway simply rests his defense

on copies of Burwell’s opinion, supporting reports, and curriculum vitae. This response is

legally insufficient to overcome the Defendants’ arguments in favor of exclusion. Further,

Burwell’s report merely summarizes the evidence and concludes that the force used was

excessive. Burwell’s impermissible legal conclusion on the ultimate issue is not proper

expert testimony and is not helpful to the Court. The Motion to Exclude is, therefore, due

to be GRANTED.

10 The Court has considered Farley’s testimony and has given it the appropriate weight in ruling on summary

judgment.

3. Motions to Exclude William T. Gaut, Bennet L. Omalu, Scott Thomas

Trexler, and Stephen Boudreau.

The parties have also filed motions to exclude the testimony of William T. Gaut,

Bennet L. Omalu, Scott Thomas Trexler, and Stephen Boudreau (“Boudreau”). (Docs.

384–86). The testimony from these experts addresses whether the officers at the scene

could have prevented Pettaway’s death by rendering first aid. Ultimately, this testimony

goes to the issue of causation on Pettaway’s Monell claim. Because the Court finds that

Pettaway’s Monell claim fails on another element, it need not address the issue of

causation. Accordingly, these Motions to Exclude (docs. 384–86) are due to be denied as

moot.

4. The Defendants’ Motion to Strike Pettaway’s Evidentiary Submissions.

The Defendants have also moved to strike Pettaway’s evidentiary submissions

supporting his motion to exclude the testimony of Boudreau. (Doc. 397). The Defendants

argue that these submissions should be excluded because Pettaway submitted them fifteen

days late without receiving or even requesting an extension from the Court. Pettaway

admits that his submissions were late because of technical difficulties but argues that the

Defendants have not been prejudiced by the delay. While the Defendants do not claim that

they were prejudiced by the late submissions, they respond that Pettaway did not follow

the proper procedure for technical difficulties with submissions.

The Court agrees that Pettaway has failed to show good cause for filing his

submissions fifteen days late. Pettaway has not explained why he could not notify the

Court of his technical difficulties or request an extension of his submission deadline. In

any event, the Court has resolved to deny Pettaway’s motion to exclude Boudreau’s

testimony. As Pettaway’s motion is due to be denied, the Court need not strike evidentiary

submissions in support of that motion. The Defendants’ motion to exclude those

evidentiary submissions is accordingly due to be denied.

B. Fourth Amendment Unlawful Arrest

Pettaway’s first claim, brought pursuant to 42 U.S.C. § 1983, asserts that Barber

committed an unlawful seizure in violation of Pettaway’s Fourth Amendment rights.

Pettaway’s complaint alleges that Barber did not have probable cause to seize and arrest

Pettaway because he did not have reliable evidence to believe that Pettaway committed a

serious criminal offense inside the home.

Pettaway clarifies in his summary judgment response that this claim is for unlawful

arrest. (Doc. 403 at 62). Pettaway argues that Barber’s right to conduct a warrantless search

of the home does not preclude Pettaway’s unlawful arrest claim. Pettaway does not

otherwise argue that summary judgment is inappropriate on this claim. Barber argues that

Pettaway’s failure to respond constitutes his abandonment of this claim. The Court agrees.

While Pettaway briefly addresses this claim in his response, he merely clarifies the basis

of the claim and does not set forth an argument against summary judgment. Accordingly,

Barber’s motion for summary judgment on this claim is due to be granted.11 Resol. Tr.

11 Aside from Pettaway’s abandonment of this claim, the Court finds that Barber had arguable probable

cause to arrest Pettaway because a reasonable officer in his position could have believed that a criminal

offense was being committed. Skop v. City of Atlanta, 485 F.3d 1130, 1138 (11th Cir. 2007) (granting

qualified immunity to arresting officers because they “possessed probable cause or arguable probable cause

to arrest” suspect for criminal offense); see also Montanez v. Carvajal, 889 F.3d 1202, 1211 (11th Cir.

2018) (holding that officers had probable cause to suspect a burglary after observing suspects acting

suspiciously outside a residence); Rivera v. Carvajal, 777 F. App’x 434, 439 (11th Cir. 2019) (holding

Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (citing Rd. Sprinkler Fitters

Loc. Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994)) (“[T]he

onus is upon the parties to formulate arguments; grounds alleged in the complaint but not

relied upon in summary judgment are deemed abandoned.”).

C. Fourth Amendment Excessive Force

Pettaway next brings a Fourth Amendment Excessive Force claim against Barber

pursuant to 42 U.S.C. § 1983. Barber has moved for summary judgment, asserting the

defense of qualified immunity. Qualified immunity protects government officials from

suit when they are “performing discretionary functions” and “their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Court finds, and

Pettaway does not dispute, that Barber was performing a discretionary function.

1.Constitutional Violation

Once a government official establishes that he was performing a discretionary

function, a plaintiff must satisfy a two-pronged inquiry to defeat a qualified immunity

defense. See Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th Cir. 2018) (quoting Andujar

v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007)). The first prong asks whether the

facts, “[t]aken in the light most favorable to the party asserting the injury, . . . show the

officer’s conduct violated a [federal] right[.]” Saucier v. Katz, 533 U.S. 194, 201 (2001).

officer had arguable probable cause to arrest suspects for burglary after observing them acting suspiciously

outside a residence).

Excessive force claims under the Fourth Amendment look to whether the force

exceeds that which would be applied by an objectively reasonable officer on the scene.

Shaw, 884 F.3d at 1099. Factors from Graham v. Connor, 490 U.S. 386 (1989), guide the

court’s assessment of reasonableness, and the court examines “(1) the severity of the crime;

(2) whether the individual ‘pose[d] an immediate threat to the safety of the officers or

others’; and (3) whether the individual ‘actively resist[ed] arrest or attempt[ed] to evade

arrest by flight.’” Patel v. City of Madison, 959 F.3d 1330, 1338–39 (11th Cir. 2020)

(quoting Graham, 490 U.S. at 396). The Eleventh Circuit assesses three additional

reasonableness factors: “(4) the need for force to be applied; (5) the amount of force applied

in light of the nature of the need; and (6) the severity of the injury.” Id. at 1339. As the

Court is bound to apply all six factors, the Court refers to them collectively as the Graham

factors.

Four key Eleventh Circuit cases examine an officer’s decision to deploy a canine.

See Priester v. City of Riviera Beach, 208 F.3d 919 (11th Cir. 2000); Crenshaw v. Lister,

556 F.3d 1283 (11th Cir. 2009); Edwards v. Shanley, 666 F.3d 1289 (11th Cir. 2012); Jones

v. Fransen, 857 F.3d 843 (11th Cir. 2017). In Priester, police responded to a burglary at a

store and searched for the perpetrator with a leashed canine. Priester, 208 F.3d at 923. The

plaintiff was not involved in the burglary but was hiding nearby for other reasons. Id. When

police shone their flashlight on the plaintiff, he stood up and put his hands in the air. Id.

The defendant officers told the plaintiff to lie down on the ground or they would deploy

the canine. Id. The plaintiff complied, but the defendant officer deployed the canine. Id.

The officers allowed the dog to bite the plaintiff for up to two minutes, resulting in fourteen

puncture wounds on his legs. Id. at 924–25. The Eleventh Circuit held that it was clearly

established that this use of force was unconstitutional despite the absence of similar case

law. Id. at 927. The Circuit reasoned that the plaintiff’s suspected crime was a burglary

involving around $20 in stolen snacks, the plaintiff immediately complied with police

instructions, the plaintiff was not attempting to flee or resist arrest, and the plaintiff did not

pose a threat of harm to the officers or others. Id. Despite these circumstances, the officers

allowed the dog to bite the plaintiff for up to two minutes, which no reasonable officer

could have believed to be constitutional. Id.

In Crenshaw, defendant police officers pursued the plaintiff in a vehicular chase

after receiving reports that the plaintiff was involved in two armed robberies. Crenshaw,

556 F.3d at 1285. The plaintiff crashed into a patrol car and fled on foot into a wooded

area. Id. at 1285, 1291. The officers tracked the plaintiff into the wooded area with a

canine. Id. at 1285. The plaintiff told officers his location and communicated his intent to

surrender but was bitten by the canine thirty-one times. Id. at 1285–86. Officers did not

call off the attack until the plaintiff had been handcuffed. Id. at 1291. The officers did not

issue a canine warning before deploying the canine. Id. at 1286. The Eleventh Circuit held

that no constitutional violation occurred because the use of force was reasonable. Id. at

1292. First, the plaintiff was suspected of armed robbery, a serious crime. Id. Second, he

fled from police in a vehicular chase and on foot. Id. Third, because the plaintiff was

suspected of armed robbery, the officers had reason to suspect that the plaintiff was armed.

Id. The probability that the plaintiff was armed made it reasonable for officers to use the

canine until the plaintiff was handcuffed. Id. at 1293. Not issuing a canine warning was

reasonable because, due to the likelihood that the plaintiff was armed, the officers were not

required to give up their location in a dark, unfamiliar wooded area. Id. at 1293 n.6.

In Edwards, the plaintiff attracted police attention because he failed to stop at a stop

sign. Edwards, 666 F.3d at 1293. The plaintiff then exited his vehicle and fled into the

woods. Id. The defendant officers approached the wooded area with a canine, announced

their presence twice, and warned that they would deploy the canine if the plaintiff did not

surrender. Id. When the police approached the plaintiff, he was lying down with his hands

visible. Id. The police told the plaintiff to show his hands. Id. The plaintiff did not move

but told police, “[Y]ou got me. I only ran because of my license.” Id. By this time, the

defendant officer had released the canine. Id. The canine bit the plaintiff’s leg for the next

five to seven minutes. Id. Although the plaintiff did not further resist, the officers allowed

the bite to continue. Id. The plaintiff’s leg sustained significant damage. Id. at 1294. The

Eleventh Circuit held that initially deploying the canine was constitutional but that

allowing the dog to continue the bite constituted excessive force. Id. at 1295. The Circuit

noted that “using a dog to track a fleeing suspect is reasonably tailored to the risk that a

fleeing suspect presents.” Id. However, once the bite began, the plaintiff’s threat level

decreased while the level of force applied increased. Id. at 1296. Accordingly, the second

and third Graham factors weighed in the plaintiff’s favor as the bite continued. Id.

In Jones, police received a report from the plaintiff’s ex-girlfriend that the plaintiff

broke into her home and stole a television. Jones, 857 F.3d at 848. Officers on the scene

believed that the plaintiff fled into a nearby ravine. Id. A canine officer approached the

ravine and issued a canine warning. Id. When he did not receive a response, the officer

entered the ravine and released his canine. Id. The officer then saw the plaintiff motionless

at the bottom of the ravine. Id. The canine bit the plaintiff for what the plaintiff described

as “a lifetime.” Id. The Eleventh Circuit held that no clearly established constitutional

violation occurred. Id. at 851. The court recognized that the crime involved was more

serious than in Priester but less serious than in Crenshaw. Id. at 854. The situation was

not “extremely serious and dangerous” and did not indicate that the plaintiff was violent or

armed. Id. However, the plaintiff fled from police into challenging terrain, did not respond

to canine warnings, and did not voluntarily surrender. Id. Thus, the officer could have

feared ambush when he first released the canine. Id. As the situation fell between Priester

and Crenshaw and did not lie so obviously at the core of the Fourth Amendment’s

prohibitions on force, no clearly established constitutional violation occurred. Id. at 855.

Here, Barber responded to the scene pursuant to a request for a canine officer. When

he arrived, officers had formed a perimeter around the home. Barber learned that an

unknown person was inside the home that did not have permission to be there. He was

also told that no other people, animals, or guns were inside the home. While he waited for

the homeowner to arrive, Barber did not make contact with or attempt to communicate with

the person inside the home. After receiving permission to perform a canine search, Barber

approached the front door with his canine. Barber called out twice in rapid succession in

a manner that was unintelligible. Eleven seconds after first calling out, and three seconds

after calling out the second time, Barber released the off-leash canine into the home.

At oral argument, Barber conceded that once the canine was deployed, the bite was

inevitable. See Kerr v. City of W. Palm Beach, 875 F.2d 1546, 1550 (11th Cir. 1989) (“The

distinctive aspect of [the ‘bite and hold’] method is its aggressive nature: unless the handler

countermands his order, the dog will seek to seize a suspect even if that individual complies

with the officer’s orders. Thus, injury to the apprehended suspect is often inevitable.”).

Thus, the Court will focus the excessive force analysis on whether the initial deployment

of Niko was justified.

This case resembles Crenshaw, where no warning was given before the canine was

deployed, because the rapid, unintelligible nature of the attempted warning here was the

functional equivalent of no warning at all. In Crenshaw, however, officers knew that an

armed robbery suspect actively fled from police and concealed himself in unfamiliar

terrain. Thus, the officers had reason to believe that the suspect was armed and dangerous

when they deployed the canine. A reasonable officer in that situation could fear that issuing

a canine warning would place his life at risk by revealing his location to an armed,

dangerous suspect. A reasonable officer in Barber’s situation, however, would not have

those same safety concerns about issuing an adequate canine warning. Here, Barber knew

that the suspect was surrounded by a police perimeter, reducing the likelihood of flight

from the premises. While Barber did not know whether the suspect inside the home was

armed, he had no information that it was likely, as did the officers in Crenshaw. When he

deployed Niko, Barber knew that an unknown person remained inside the home without

permission. Although Barber knew someone was inside the home, he did not know the

person was concealed under a bed when Niko entered the house. On the information Barber

had at that time, a reasonable officer would not have the same reason to fear that issuing

an adequate canine warning would place his life at increased risk as under the facts in

Crenshaw. Thus, the Graham factors weigh less heavily in favor of deploying a canine

than they did in Crenshaw.

This case shares some similarities with Priester. As in Priester, Barber had reason

to believe that Pettaway committed a burglary.12 The burglary here, however, is arguably

more severe than in Priester because it involved an occupied residence. This case also

resembles Priester because a canine was deployed against a suspect that was not obviously

non-compliant at the time. However, the suspect in Priester surrendered before the canine

was deployed. When Barber deployed Niko, Pettaway was inside a home without the

homeowner’s permission. Thus, while the Graham analysis resembles that in Priester,

some of those factors weigh less heavily against the use of force than they did in Priester.

However, the Graham factors weigh more heavily against deploying a canine than

they did in Edwards or Jones. In both of those cases, officers issued canine warnings and

allowed the suspect time to respond to those warnings before deploying a canine. Here,

Barber did not give an adequate warning with sufficient time for Pettaway to respond, and

perhaps, surrender. Further, the suspects in Edwards and Jones presented a threat because

they actively fled from police and concealed themselves in unfamiliar terrain. When

Barber deployed Niko, he knew that the police perimeter around the home reduced the risk

of flight therefrom. Although deploying a canine is not deadly force per se, it is

“extraordinary force.” Edwards, 666 F.3d at 1295. Here, Barber bypassed steps on the

12 Pettaway argues that Barber did not have probable cause to believe that Pettaway committed burglary.

When Barber deployed Niko, he knew that an unknown individual was inside the home without permission.

A reasonable officer in that situation would have reason to suspect that a burglary was taking place.

continuum of force that officers did not bypass in Edwards or Jones. Unlike in those cases,

the scenario here, at the time the canine was deployed, was not a tense, rapidly evolving

situation requiring split-second decision-making. There is no suggestion that prior to

deploying Niko, a clear, verbal warning that the dog would be released if the suspect did

not surrender, and adequate time allowed to surrender, were not possible or could have

placed officers in danger. Thus, Barber had less need to deploy a canine than in Edwards

or Jones.

The final Graham factor examines the severity of the injury. Deploying a canine

is extraordinary force and, as Kerr points out, often leads to injury. As this case illustrates,

albeit unlikely, death is one of those potential injuries. Graham looks to the severity of the

injury caused, not the severity of the injury intended. Death is the most severe injury

possible, and this factor weighs in Pettaway’s favor.

Taken together, this case falls between Priester and the initial canine deployments

in Crenshaw, Jones, and Edwards. Material portions of Barber’s body camera footage

reveal that Barber’s rapid statements at the front door were unintelligible. To be clear, the

Court does not suggest that officers have an affirmative duty to provide a canine warning;

they do not. Crenshaw, 556 F.3d at 1293 n.6 (providing canine warning was not required

when doing so could place officer at risk). Under these facts, however, the situation was

not rapidly evolving, Pettaway was alone inside a home that was surrounded by police, and

Barber could have provided a sufficient canine warning from outside the home. Barber’s

deployment of the canine without a sufficient warning was not a reasonable use of force

under these circumstances. But see Robinette v. Barnes, 854 F.2d 909, 913–14 (6th Cir.

1988) (deploying canine to extract suspect from building was reasonable when officers

provided multiple canine warnings and allowed one minute to respond to those warnings).

2. Clearly Established Law

The second prong of the qualified immunity analysis asks whether the violation of

the federal right was “clearly established” at the time of the violation. Hope v. Pelzer, 536

U.S. 730, 739 (2002). The relevant question is whether “it would be clear to a reasonable

officer that his conduct was unlawful in the situation he confronted.” Saucier, 533 U.S. at

202. The unlawfulness of such conduct can be clearly established in three ways: “(1) case

law with indistinguishable facts clearly establishing the constitutional right; (2) a broad

statement of principle within the Constitution, statute, or case law that clearly establishes

a constitutional right; or (3) conduct so egregious that a constitutional right was clearly

violated, even in the total absence of case law.” Lewis v. City of W. Palm Beach, 561 F.3d

1288, 1291–92 (11th Cir. 2009) (citing Mercado v. City of Orlando, 407 F.3d 1152, 1159

(11th Cir. 2005) (citations omitted)).

In Mercado, officers were dispatched to the plaintiff’s residence on a report that the

plaintiff was attempting suicide. Mercado, 407 F.3d at 1154. For twenty minutes, the

officers tried to communicate with the plaintiff from outside his residence. Id. When

officers entered the residence, the plaintiff was crying, seated on the floor, pointing a knife

towards his heart, and had a telephone cord wrapped around his neck. Id. Officers twice

told the plaintiff to drop the knife but did not warn him that they would use force if he did

not comply. Id. The plaintiff did not make any threatening movements but did not

immediately drop the knife. Id. In violation of department policy, the defendant officer

fired a “less lethal” weapon at the plaintiff’s head, causing permanent brain injuries. Id. at

1154–55. The Eleventh Circuit denied qualified immunity, finding the case “so obviously

at the very core of what the Fourth Amendment prohibits that the unlawfulness of the

conduct was readily apparent to the [officer], notwithstanding the lack of case law.” Id. at

1160. The Circuit reasoned that the plaintiff did not actively resist arrest, make threatening

movements, or pose an immediate threat to the officers. Id. at 1157–58. Arguably, the

plaintiff had not had time to comply with orders to drop the knife. Id. at 1158, 1160. The

Circuit also noted that the use of force violated department policy. Id. at 1160.

Here, Barber failed to provide a sufficient warning and opportunity to respond

before deploying Niko. Although Barber called out twice prior to deploying the canine,

the warnings were rapid and unintelligible. Furthermore, Barber’s two, quick,

unintelligible warnings were not in compliance with MPD protocol, which provided that

officers should give three warnings before deploying a canine. The Court does not suggest

that a violation of MPD policy clearly establishes a constitutional violation, but policy can

indicate how a reasonable officer would behave in the situation. See Gutierrez v. City of

San Antonio, 139 F.3d 441, 449 (5th Cir. 1998) (“[I]t may be difficult to conclude that the

officers acted reasonably if they performed an action that had been banned by their

department.”).

Here, this case resembles Mercado because force was prematurely used against a

suspect that did not actively resist arrest, make threatening movements, or have the

opportunity to comply with police commands. A reasonable officer would not need prior

case law to know that sending an off-leash canine into a surrounded home before

adequately communicating with a solitary suspect or providing that suspect an opportunity

to respond, in violation of department policy, constitutes excessive force.13 Accordingly,

Barber is not entitled to qualified immunity, and his motion for summary judgment on this

claim is due to be denied.

D. Monell Claim

Pettaway also asserts a §1983 Monell claim against the City of Montgomery.

Pettaway claims that MPD Written Directive 3.3.5 (“3.3.5”) prohibited MPD officers from

providing first aid to suspects injured in the course of their arrest. Directive 3.3.5 provides

in pertinent part that “Personnel are required to request the Medics to provide appropriate

medical aid after the use of force . . . [t]o all persons with suspected injuries.” (Doc. 371-4

at 1). This directive also provides that “[m]edical [a]id is to be rendered by only those

trained and/or certified to render such aid.” (Id.). At all material times hereto, CPR was

the only first aid training MPD provided its officers.

Municipalities “can be sued directly under § 1983 for monetary, declaratory, or

injunctive relief where . . . the action that is alleged to be unconstitutional implements or

executes a policy statement, ordinance, regulation, or decision officially adopted and

promulgated by that body’s officers.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436

U.S. 658, 690 (1978). Municipalities “may be sued for constitutional deprivations . . . even

though such a custom has not received formal approval through the body’s official

13 Although the standard is one of objective reasonableness, there is evidence in the record that Barber had

subjective concerns about the reasonableness of his actions, specifically the manner and effectiveness of

the canine warnings. At 3:34:42, after Pettaway was taken away from the scene, Barber asked Jones and

Dixon, “Y’all heard me give the warnings, right?”

decisionmaking channels.” Id. at 690–91. However, “a local government may not be sued

under § 1983 for an injury inflicted solely by its employees or agents.” Id. at 694. “Instead,

it is when execution of a government’s policy or custom, whether made by its lawmakers

or by those whose edicts or acts may fairly be said to represent official policy, inflicts the

injury that the government as an entity is responsible under § 1983.” Id.

“[T]o impose § 1983 liability on a municipality, a plaintiff must show: (1) that his

constitutional rights were violated; (2) that the municipality had a custom or policy that

constituted deliberate indifference to that constitutional right; and (3) that the policy or

custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).

“[A]n inquiry into a governmental entity’s custom or policy is relevant only when a

constitutional deprivation has occurred.” Rooney v. Watson, 101 F.3d 1378, 1381 (11th

Cir. 1996). Pettaway argues that 3.3.5, in conjunction with MPD’s custom of not training

officers in first aid beyond CPR, violated Pettaway’s Fourteenth Amendment right to

prompt and proper medical care. The Court must first determine whether Pettaway was

deprived of his Fourteenth Amendment right to prompt and proper medical care.

The seminal Supreme Court case on the Fourteenth Amendment constitutional right

to prompt and proper medical care is City of Revere v. Mass. Gen. Hosp., 463 U.S. 239

(1983). In Revere, a criminal suspect was shot by a police officer. Id. at 240. Officers on

the scene called an ambulance, and the suspect was taken to a hospital where he was treated

for his injuries. Id. at 241. After the city’s Chief of Police refused to pay the suspect’s

hospital bill, the treating hospital sued the city, arguing that paying the suspect’s hospital

bill was part of the city’s constitutional obligation to provide the suspect medical care under

the Fourteenth Amendment. Id. The Supreme Court acknowledged that the Fourteenth

Amendment “require[s] the responsible government or governmental agency to provide

medical care to persons . . . who have been injured while being apprehended by the police.”

Id. at 244. It noted that these protections are at “least as great as the Eighth Amendment

protections available to a convicted prisoner.” Id. However, the Court declined to clearly

define a municipality’s obligations. Id. It held that, “[w]hatever the standard may be, [the

city] fulfilled its constitutional obligation by seeing that [the suspect] was taken promptly

to a hospital that provided the treatment necessary for his injury.” Id. at 245.

“To succeed on a claim for deprivation of medical care, a plaintiff must prove (1)

the existence of an objectively serious medical need, and (2) that the officer was

deliberately indifferent to that need.” Wade v. Daniels, 36 F.4th 1318, 1326 (11th Cir.

2022). The plaintiff can establish deliberate indifference by showing that “(1) the officer

was aware of facts from which the inference could be drawn that a substantial risk of

serious harm exists, (2) the officer actually drew that inference, (3) the officer disregarded

the risk of serious harm, and (4) the officer’s conduct amounted to more than gross

negligence.” Valderrama v. Rousseau, 780 F.3d 1108, 1116 (11th Cir. 2015). “Even when

medical care ultimately is provided, the officer might still act with deliberate indifference

‘by delaying the treatment of serious medical needs.’” Id. (quoting McElligott v. Foley,

182 F.3d 1248, 1255 (11th Cir. 1999)).

When an officer promptly calls for medical assistance, courts have not required

officers to personally provide first aid to individuals injured in the course of an arrest. Davis

v. Edwards, 2017 WL 6544847, at *8 (M.D. Ala. Sept. 5, 2017) (“There is no suggestion

in [Revere] that the apprehending officers were obligated to render medical assistance on

the scene. Likewise, here, there was no constitutional obligation for [the officers] to

personally render medical assistance . . . where there is no allegation they delayed in

calling for emergency medical services.”); Aaron ex rel Aaron v. Hudson, 2022 WL

1085608, at *3 (N.D. Ala. Apr. 11, 2022) (“[A]ll relevant and binding case law holds there

is no obligation for a police officer to personally provide medical care.”); Peacock v. Smith,

2018 WL 5649899, at *7 (M.D. Ga. Oct. 31, 2018) (“[N]either the Supreme Court [nor the]

Eleventh Circuit . . . have ever distinctively held that an officer must personally render aid

to an injured individual.”).

Pettaway asserts that the consistent holdings in these cases are not relevant because

they deal with the obligations of individual officers rather than the obligations of a

municipality in a Monell claim. This argument overlooks the framework of a Monell claim.

While a Monell claim does not derive vicariously from the acts of a municipality’s agent,

an agent’s unconstitutional act is a prerequisite to a Monell claim. The basis behind a

Monell claim is that the municipality’s policy was the driving force behind an agent’s

unconstitutional act. If the agent’s act is constitutional, the municipality did not bring about

an unconstitutional act.

Thus, a municipality does not have a separate, individual constitutional obligation

to provide medical aid to suspects injured by a police officer beyond the obligation placed

on individual police officers. If the police officer, acting as an agent of the city, fulfills his

constitutional obligation by calling for medical aid, the municipality’s constitutional

obligations are fulfilled alongside it. Such an effect is clear in Revere, which found that

the municipality’s constitutional obligation was fulfilled when police officers ensured that

the injured suspect was promptly taken to a hospital where he received the necessary

treatment. Revere, 463 U.S. at 240, 245.

Thus, Montgomery’s constitutional obligation to provide medical aid was satisfied

when the officers on the scene promptly summoned medical aid for Pettaway. Barber

called for medical assistance less than one minute after Niko released his bite. Pettaway

has not argued that Barber delayed medical assistance or did not promptly call for such

assistance. Thus, Pettaway has not established that Barber was deliberately indifferent to

Pettaway’s medical needs. Accordingly, Pettaway cannot show that his Fourteenth

Amendment right to prompt medical aid was violated.

Because Barber did not violate Pettaway’s Fourteenth Amendment right to medical

aid, neither did Montgomery. As such, Pettaway has not established the first requirement

of a Monell claim: that a constitutional violation occurred. Thus, there is no need to inquire

into Montgomery’s policies or customs. Because Pettaway cannot establish the requisite

constitutional violation, Montgomery’s motion for summary judgment on this claim is due

to be granted.

E. Wrongful Death

Finally, Pettaway brings a wrongful death claim under Ala. Code § 6-5-410 against

Barber, Finley,14 and Montgomery. The Defendants moved for summary judgment,

14 Although Pettaway clarified at oral argument that he only brought his Monell claim against Finley in his

official capacity, it remains unclear to the Court whether Pettaway’s state law claim against Finley is

brought in his individual capacity. To the extent Pettaway brings a state law claim against Finley in his

individual capacity, the Court finds that Finley is entitled to summary judgment on this claim for the reasons

arguing that the claim was pleaded in an impermissible shotgun manner, that Pettaway

cannot establish the Defendants’ negligence, that Barber and Finley are entitled to state

agent immunity, and that Montgomery is entitled to sovereign immunity. They also argue

that, because Pettaway did not address this claim in response to the Defendants’ motion for

summary judgment, Pettaway has abandoned his wrongful death claims.

Pettaway did not address this claim in his response to the Defendants’ motion for

summary judgment. Because Pettaway wholly fails to address his wrongful death claim in

response to the motion for summary judgment, he has abandoned this claim. Resol. Tr.

Corp., 43 F.3d at 599. Accordingly, the Defendants’ motion for summary judgment on

Pettaway’s wrongful death claim is due to be granted.

V. CONCLUSION

For the reasons discussed above, it is hereby ORDERED as follows:

1. The Plaintiff’s motion to exclude testimony of the Defendants’ expert Ricky

Farley (doc. 373) is DENIED.

2. The Defendants’ motion to exclude testimony of the Plaintiff’s expert Ernest

Burwell (doc. 384) is GRANTED.

3. The Defendants’ motion to exclude testimony of the Plaintiff’s experts William

T. Gaut and Bennet L. Omalu (doc. 384) is DENIED.

4. The Defendants’ motion to exclude testimony of the Plaintiff’s expert Scott

Thomas Trexler (doc. 385) is DENIED.

stated herein. To the extent this claim is brought against Finley in his official capacity, it is duplicative of

the claim against the city and is due to be dismissed on that basis as well.

5. The Plaintiff’s motion to exclude testimony of the Defendants’ expert Stephen

Boudreau (doc. 386) is DENIED.

6. The Defendants’ motion to strike Plaintiff’s evidentiary submissions (doc. 397)

is DENIED.

7. Defendants Flournoy, Green, Powell, Ruiz, Smith, Thrasher, and Watts’ motions

for summary judgment (doc. 374, 378) are DENIED as moot.

8. The Defendants’ motion for summary judgment (doc. 378) is DENIED as to

Count Two, the Fourth Amendment claim against Barber for excessive force, and is

GRANTED in all other respects, as set forth in the opinion above.

Done this 31st day of January, 2023.

/s/ Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE