Opinion
No. 1:02-cv-228
September 16, 2003
MEMORANDUM
I. Introduction
Plaintiff Eric Thomas seeks damages from the defendants, the City of Chattanooga, Tennessee, ("City") for deprivation of his civil rights under color of state law pursuant to 42 U.S.C. § 1983. Specifically, in their First Amended Complaint, filed on July 10, 2003 [Court File No. 23], the plaintiff's allege that the shooting of plaintiff John Eric Thomas ("Eric Thomas") by Reginald Abernathy, a City police officer on the night of May 27, 2002, constituted the "use of excessive and unreasonable force while acting under color of law." Id. The plaintiff's aver that the shooting of plaintiff Eric Thomas by Officer Abernathy deprived Eric Thomas of the rights guaranteed him by the Fourth and Fourteenth Amendments to the United States Constitution, namely:
(1) freedom from the use of excessive and unreasonable force;
(2) freedom from the deprivation of liberty without due process; and,
(3) freedom from summary punishment.
[Court File No. 23]. Plaintiffs further alleged that on May 27, 2002, Officer Abernathy "failed to identify himself as a police officer prior to opening fire, failed to warn, failed to exhaust all other reasonable means of apprehension, and had no probable cause to believe that Eric Thomas posed a threat of serious bodily injury or had committed a felony involving the infliction or threatened infliction of serious bodily injury, . . . in that Eric Thomas was not fleeing at the time in question." [Court File No. 23, p. 7]. Plaintiffs alleged that defendant is liable to them by `Virtue of having, within its Police Department, a practice, policy, custom or usage of unlawful excessive force by Police Officers." Id.
Plaintiffs seek $25,000,000.00 in compensatory and punitive damages. [Court File No. 23, p. 8]. They further seek attorney's fees, litigation expenses, and costs from defendant pursuant to 42 U.S.C. § 1988. Id. II. Background
The Facts alleged in plaintiff's' First Amended Complaint are:
On May 27, 2002, the plaintiff's were having a Memorial Day cook-out for immediate family members at their home, located at 4806 Hal Drive, Chattanooga, Tennessee. At approximately 6:45-7:00 PM, Eric Thomas and his father, Larry Thomas, were inside the screened-in porch of Eric's home and they became involved in an argument. The neighbors across the street, who had moved in only three days before, called in Chattanooga Police Department to report a "disorder" at the Thomas home, after hearing Eric and his father argue. Police Officer Rob Stainline was dispatched to 4806 Hal Drive where ". . . upon arrival [he] was met by John (Eric) Thomas and his father Larry Thomas. The two advised that they had been involved in a verbal argument but had resolved their problem." Shortly thereafter, the police departed the Thomas residence.
Later that same evening, Eric Thomas left his home to deliver some leftover barbecue to friends in East Ridge. He was returning home at approximately 11:30-11:45 PM when, while in close proximity to his home, the muffler and exhaust pipe on his 1979 Chevrolet truck fell off and began dragging along the pavement, creating a great deal of noise. Eric Thomas had been working on the old truck all of the previous week in preparation for a new job which was scheduled to begin the following Monday which job involved his renovation business, and the old truck was his only transportation. When the exhaust system collapsed as described hereinabove, Eric Thomas became very frustrated, and as a result he squealed his tires as he turned into his driveway.
At approximately 11:55 PM, the Chattanooga Police Department dispatched officer Reginald Abernathy to the Thomas residence after a neighbor or neighbors complained of "squealing tires and people fighting and carrying on."
Eric Thomas left the truck and went inside his home. At this time, his wife, Heather, and their five year-old daughter, Amanda, were next door at the home of Heather's parents, Mr. and Mrs. James Rector. After entering his home Eric Thomas noticed that some of his firearms were not where he had left them earlier in the day, when he had been showing them to his father. Eric Thomas did not know that his mother had hidden the firearms earlier in the day because she knew that Amanda was coming from next door and the firearms were not in their usual safe place.
Eric Thomas then stepped out his side kitchen door and yelled next door to his wife, Where's all the guns?" Heather Thomas heard her husband call out and yelled back, "Your mom put them up. I'll be right over." Heather Thomas immediately came to her home from next door and retrieved the firearms, bringing them into the kitchen. Heather laid the rifles on the kitchen counter and handed Eric a 9 mm Beretta handgun that belonged to her father, who had asked that Eric clean it for him. Eric had another pistol in his hand, a .357 Navy Arms revolver, that he had brought in from his truck. Eric was just starting to leave the kitchen to put the guns away when he and Heather heard their dogs barking outside, and heard the yard gate chain rattling. Heather was near the kitchen door, and about to open it to see who or what was out there at such a late hour, when. . . . gunfire erupted from outside the kitchen door . . .
The shots fired described . . . struck Eric Thomas as he was departing his kitchen and in the hallway which lead away from the kitchen. The shots in question were fired by Chattanooga Police Officer Reginald Abernathy from his .45 caliber weapon . . . Officer Abernathy fired seven bullets striking Eric Thomas in the back and left arm.
[Court File No., 23, pp. 2-4].
On May 28, 2002, City police officer Reginald Abernathy responded to a domestic disorder call from the police dispatcher at approximately 12:30 A.M. [Court File No. 24, Abernathy dep'n, p. 46]. The dispatch was for 4805 Hal Drive, which was located across the street from the Thomas house. Id. at 46. The dispatch stated that there was ". . . a guy riding up and down the street in a truck, hollering and screaming, burning rubber in the street. They advised me he had a baseball bat . . . That's why they sent an extra car with me . . ." Id.
At the time of the dispatch, Officer Abernathy was approximately one mile from the scene and he arrived there first, within a minute to a minute-and-a-half from the time of the dispatch. Id. 48-49. When Officer Abernathy arrived at the scene, he saw an older gentleman standing in the street. [Court File No. 24, Abernathy dep'n, p. 49]. The gentleman pointed to the Thomas house, 4806 Hal Drive, and told Officer Abernathy there was a domestic disorder at the house across the street. Id. at 51. Officer Abernathy exited his vehicle and heard voices coming from the house at 4806 Hal Drive. Id. at 54-57.
He walked further down the street and heard screaming coming from 4806 Hal Drive. Id. at 57. Officer Abernathy stated he heard two people — one male and one female — screaming at each other, but he could not make out what they were saying. Id. at 58.
Officer Abernathy walked up the driveway at 4806 Hal Drive and through a gate. Id. at 59-60. At some point, approximately halfway up the driveway, Officer Abernathy radioed the police dispatcher to send/hurry up the other police car because he could hear screaming. Id. at 60-61, 63.
Officer Abernathy walked toward the porch on the right side of the house where he saw a light shining onto the porch. Id. at 63. As he approached the side porch, Officer Abernathy heard dogs barking in the backyard. Id. at 64.
Officer Abernathy was able to see the light coming out of the kitchen and could see into the kitchen through the window in the top half of the door. Id. at 66. Officer Abernathy saw a man and a woman in the kitchen. The woman was facing the man. Id. at 67. Officer Abernathy was able to observe the man and woman through the kitchen door, but he was unable to hear what they were saying. Id. at 68.
At the time Officer Abernathy first looked through the window, the man, now known as plaintiff Eric Thomas, was facing down the hallway. Id. at 73. The woman, now known as plaintiff Heather Thomas, was standing next to the kitchen cabinets, facing Eric Thomas. [Court File No. 24, Abernathy dep'n, p. 75].
At that time, Heather Thomas and Eric Thomas were between one and one-half and three feet apart. Id. Officer Abernathy saw two rifles laying on the kitchen countertop and Eric Thomas had a handgun in each hand. Id. at 77-78. Officer Abernathy then observed Eric Thomas take a staggered step with his left foot towards the hallway, while Heather Thomas turned towards her left and reached for the kitchen door. Id. at 78-79.
Officer Abernathy was standing under a porch light and believed he was illuminated to the two people standing in the kitchen. Id. at 80. He does not recall whether he ever announced himself as a police officer. Id. However, he does not think he did so because of the short time frame of the events in question. Id. at 80.
Officer Abernathy thought that Heather Thomas saw him and was reaching over to unlock the door. Id. at 80-82. Officer Abernathy tried to open the door but it was unlocked. Id. at 82. At that point, Eric Thomas began turning towards Heather Thomas and Officer Abernathy lost sight of the gun in Eric Thomas' left hand. Id. at 82. Officer Abernathy testified he believed the gun in Eric Thomas' left hand was a bigger threat to Heather Thomas because she was closer to him. Id. Officer Abernathy further testified that at the point Eric Thomas began to turn towards Heather Thomas he believed she was in imminent danger. Id.
As Eric Thomas turned to Heather Thomas, they had an exchange which Officer Abernathy could not hear. [Court File No. 24, Abernathy dep'n, p. 84]. However, at that point, Officer Abernathy testified:
But Mrs. Thomas started to back up and it looked like she had her hands down to her side. She didn't have them — but, you know, at some point there was no doubt in my mind, based on her expression and her body language, that she was in imminent danger.Id.
When Eric Thomas turned towards Heather Thomas, Officer Abernathy focused on his left arm and hand. [Court File No. 24, Abernathy dep'n, p. 91]. Officer Abernathy described this as:
When Mr. Thomas is turning to his right I lost sight of the gun in his left hand which I felt traveled up to a point at her. When he did take another step — his body was swaying in that direction, Mrs. Thomas, when she backed up with her hands out, with an almost surprised expression on her face, it gave me enough to say, well she was going to be in danger if he completes his turn and is going to put me in secondary danger if he sees me out here on the porch.Id. at 105. Officer Abernathy further stated:
. . . Mr. Thomas took the step and he turned, that's when I started firing because her life I felt was in imminent danger.Id. at 107.
Officer Abernathy aimed at Eric Thomas' left arm and fired multiple continuous rounds — seven — over a period of a couple of seconds. [Court File No. 24, Abernathy dep'n, pp. 91-93]. When Officer Abernathy began firing the glass in the kitchen door shattered and obstructed his view, but he intended to shoot until he no longer saw a threat from Eric Thomas. Id. at 95. Officer Abernathy testified that he did not stop and reevaluate the situation after firing one or two shots, id. at 95, he continued shooting until he no longer perceived a threat from Eric Thomas. Id. 110.
Following the shooting, Officer Abernathy remained outside of the residence until his backup, Sergeant McPherson, arrived at the house. Id. at 97. Sergeant McPherson arrived and yelled inside the house to make contact with Eric Thomas. Id. at 99. Once Sergeant McPherson made verbal contact with Eric Thomas, Officer Abernathy and Sergeant McPherson forced entry through the kitchen door and found Eric Thomas lying on the floor. Id. at 98-101. Officer Abernathy called for an ambulance and at that point Sergeant Rogers removed him from the residence. Id. at 103.
Prior to the incident on the night of May 27, 2002 and during the course of his employment with the City police department, Officer Abernathy had never shot another individual. [Court File No. 24, Abernathy dep'n, p. 129]. Further, during his employment with the City police department he never had any disciplinary action taken against him and there had never been any "founded internal complaint" against him. Id. at 132.
Officer Abernathy has received video training from the City police department, id. at 29, as well as annual in-service training. Id. at 130. That training consisted of twice-a-year qualifying sessions on the shooting range as well as classroom instruction on various aspects of law enforcement. Id.
Officer Abernathy also testified he received training from the City police department concerning the need to announce himself as a police officer and give an individual time to comply. Id. at 137. He stated that the training he received on that subject was appropriate. Id. However, he stated that under the circumstances, he did not believe there was enough time to announce himself as a police officer. Id. at 138. Further, Officer Abernathy testified his training as a police officer also taught him to be concerned about the location of a firearm when he knew an individual possessed one, id. at 140, and he became concerned when Eric Thomas turned to Heather Thomas and he lost sight of the gun in his left hand. Id. at 140.
III. Defendants' Motion for a Judgment on the Pleadings or, in the alternative, a Summary Judgment [Court File No. 24].
Defendant has moved for a judgment on the pleadings, or in the alternative, a summary judgment [Court File No. 24]. However, pursuant to Fed.R.Civ.P. 12(c), because matters outside of the pleadings — i.e., depositions and other exhibits — have been presented and not excluded by this court, defendant's motion must be treated as a summary judgment and disposed of pursuant to Fed.R.Civ.P. 56. Pierzynowski v. Police Dept. City of Detroit, 941 F. Supp. 633, 639 (E.D. Mich. 1996) (citing Scott v. Central States, Southeast Southwest Areas Pension Plan, 121 F. Supp. 1095, 1095 (E.D. Mich. 1989). Thus, the Court will treat defendant's motion for a judgment on the pleadings as a motion for summary judgment.
A. Standard of Review
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 415 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907.
B. Analysis
Defendant the City of Chattanooga, Tennessee, ("City") seeks a summary judgment on plaintiff's' claims against it under 42 U.S.C. § 1983. In seeking a summary judgment, the City contends that no specific policies, customs or practices of the City have been established as the result of the discovery in this action which resulted in any unconstitutional injury or damages to the plaintiff's. [Court File No. 25]. Further, the City contends that in their First Amended Complaint [Court File No. 23], the plaintiff's have neither alleged "deliberate indifference" on the part of the City, nor did they allege any specific actions on the party of the City which could have constituted "deliberate indifference." [Court File No. 25]. Accordingly, the City contends that it is entitled to a summary judgment on the claims made by the plaintiff's against it. Id. 42 U.S.C. § 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .
In order to prevail on a claim for a violation of civil rights under 42 U.S.C. § 1983 a plaintiff must establish: (1) he was deprived of aright secured by the Federal Constitution or laws of the United States and (2) that the aforesaid deprivation was caused by a person acting under color of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155-57 (1978).
More specifically, to impose liability on a governmental entity, such as The City of Chattanooga, Tennessee, under 42 U.S.C. § 1983, a plaintiff must show that there was some official governmental policy or custom in place that violated his constitutional rights; a governmental entity cannot be held liable under § 1983 for the acts of its employees under a theory of respondeat superior. Monell v. Dep' t of Social Servs., 436 U.S. 658, 691 (1978). In this action, plaintiff's have alleged that the City police department had a practice, policy, custom or usage of unlawful excessive force by its officers. [Court File No. 23, p. 7].
"To obtain a judgment against a municipality, a plaintiff must prove that the municipality itself supported the violation of rights alleged." Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (citing Monell, 436 U.S. at 692-95). "Section 1983 liability attached to a municipality only 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.'" Id. (quoting Monell at 694).
It is burden of the plaintiff's to show that a policymaker is responsible either for the policy or, through acquiescence, for the custom. Id. (citing Jett v. Dallas Independent School District, 491 U.S. 701, 737, 109 S.Ct. 2702, 2723 (1989).
There are two ways to establish a policy or custom. A policy exists when a "decisionmaker possess[ing] final authority to establish municipal policy with respect to the action" issues either an official policy, proclamation, or edict. Andrews, 895 F.2d at 1480 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 1299 (1986)). A course of conduct will be considered to be a "custom" when, even though not authorized by law, "such practices of state officials [are] so permanent and well settled" as to virtually constitute law. Id. (citing Monell, 436 U.S. at 690, 98 S.Ct. at 2035 (quoting Adickes v. S. H. Kress Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 1613-14 (1970)).
In Doe v. Claiborne County, Tenn, By and Through Claiborne County Bd. of Educ., 103 F.3d 495 (6th Cir. 1996), the Sixth Circuit explained:
A "custom" for purposes of Monell liability must be "so permanent and well settled as to constitute a custom or usage with the force of law." Monell, 436 U.S. at 691, 98 So. Ct. at 2036 (internal quotation marks and citation omitted); see also Feliciano v. City of Cleveland, 988 F.2d 649, 655 (6th Cir.), cert. denied, 510 U.S. 826, 114 S.Ct. 90, 126 L.Ed.2d 57 (1993). In turn, the notion of "law" must include "[d]eeply embedded traditional ways of carrying out state policy." Nashville, Chattanooga St. Louis Ry. Co. v. Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 84 L.Ed. 1254 (1940). It must reflect a course of action deliberately chose from among various alternatives. City of Oklahoma v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985). In short, a "custom" is a "legal institution" not memorialized by written law. Feliciano, 988 F.2d at 655.Doe, 103 F.3d at 507-08.
In Warren v. Shelby County, Tenn., 191 F. Supp.2d 980 (W.D. Tenn. 2001), the court further explained:
"[O]fficial policy often refers to formal rules or understandings — often but not always committed to writing — that are intended to, and do, establish fixed plans of action to be followed under similar circumstances consistently and over time." Pembaur, 475 U.S. at 480-81, 106 S.Ct. at 1299. A plaintiff must, in order to show a custom or policy, adduce specific facts in support of his claim. Conclusory allegations will not lie. Culberson v. Doan, 125 F. Supp.2d 252, 263-64 (S.D. Ohio. 2000).Id. at 984-985.
As part of their response to defendant's motion for a summary judgment [Court File No. 29], the plaintiff's have filed the affidavit of Phillip L. Davidson, their Fed.R.Civ.P. 26(a)(2) expert. That statement reads in pertinent part:
Officer Abernathy's actions at the time and place in question do not comply with the City of Chattanooga's written procedure. It is my experience that insofar as use of force is concerned, written regulations are often honored in the breach rather than in the observance. Based upon my experience with other cities in cases similar to this one, the number of formal civil cases alleging use of excessive force by police officers filed against the City of Chattanooga indicates that written regulations to the contrary notwithstanding, at the time and place in question Chattanooga Police Department uniformed officers acted within informal, unwritten policy, practice, or custom wherein the unlawful use offeree — the use of excessive force — was tolerated. In my experience, this "culture" must necessarily have been known to Chattanooga Police Department supervisory personnel, and condoned by them. That the Chattanooga Police Department condoned unlawful use of ferce, such as that utilized by Officer Abernathy at the time in question, is aptly illustrated by the fact that Captain Janet Crumley, of Internal Affairs, recommended that Officer Abernathy's shooting of Mr. Thomas be ". . . carried as justified."
[Court File No. 29, Davidson affidavit].
In their response to defendant's motion for summary judgment, plaintiff's assert:
The Affidavits filed by the City in support of its Motion seek to establish that the City's written policies do not condone the use of excessive force, and that in any event Officer Abernathy had no prior excessive force complaints against him. The Affidavit of plaintiff's attorney shows that in nine years, 45 civil suits against a police force of about 450 uniformed officers have been filed in federal court, and other such suits have been filed in state court. The Exhibit to that Affidavit establishes that the Internal Affairs Division of the Chattanooga Police Department ruled the incident in question a "good shooting." The Affidavit of plaintiff's' expert establishes that in his opinion, the facts thus far adduced . . . show that there existed a policy, custom, or practice permitting the use of excessive force among uniformed Chattanooga policemen.
[Court File No. 29, pp. 3-4].
Thus, the plaintiff's allege that the City has a policy, practice or custom which condones the use of excessive force by its officers based upon the City's finding that the shooting in this incident should be considered as justified. In other words, the City took no disciplinary action against Officer Abernathy for this shooting. Thus, plaintiff's allegation is essentially that the City has a policy, custom or practice of inaction; namely, that the City has a policy, practice, or custom which condones the excessive force by its officers by taking no adverse disciplinary action against them.
To establish municipal liability based upon an "inaction" theory, the plaintiff must show:
I. the existence of a clear and persistent pattern of [unconstitutional activity];
II. notice or constructive notice on the part of [officials];
III. [officials'] tacit approval of the unconstitutional conduct, such that their deliberate indifference in their failure to act can be said to amount to an official policy of inaction; and
IV. that the [officials'] custom was the "moving force" or direct causal link in the constitutional deprivation.Warren v. Shelby County, Tenn., 191 F. Supp.2d at 987 (citing Doe, 103 F.3d at 508). Finally, "[t]he evidence must show that "the need to act is so obvious that the [officials'] `conscious' decision not to act can be said to amount to a `policy' of deliberate indifference to [the plaintiff's] constitutional rights." Id. In this situation, "`deliberate indifference' does not mean a collection of sloppy or even reckless oversights, it means evidence showing an obvious, deliberate indifference to" the use of excessive or deadly force. Doe, 103 F.3d at 508.
Where the plaintiff "advances sufficient evidence to create a genuine issue of material fact as to the existence of such custom or policy, then the question of "deliberate indifference" becomes one for the jury to decide and not for the court at the summary judgment stage." Id. at 509 (citing Hicks v. Frey, 992 F.2d 1450, 1456-57 (6th Cir. 1993)).
Further, in Stemler v. City of Florence, 126 F.3d 856 (6th Cir. 1997), cert. denied, 523 U.S. 1118 (1998), the Sixth Circuit stated:
While a municipality may be held liable under 42 U.S.C. § 1983, for a constitutional violation directly attributable to it, § 1983 does not impose vicarious liability on a municipality for the constitutional torts of its employees. See Monell v. Department of Soc. Servs. of the City of New York, 436 U.S. 658, 692, 98 S.Ct. 2018, 2036-37, 56 L.Ed.2d 611 (1978). Therefore, in order to state a claim against a city or a county under § 1983, a plaintiff must show that his injury was caused by an unconstitutional "policy" or "custom" of the municipality. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 1298-99, 89 L.Ed.2d 452 (1986). The plaintiff's both assert they were injured by the municipalities' allegedly deficient training programs. Where, as here, the identified policy is itself facially lawful, the plaintiff "must demonstrate that the municipal action was taken with `deliberate indifference' as to its known or obvious consequences. A showing of simple or even heightened negligence will not suffice." Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 1390, 137 L.Ed.2d 626 (1997) (quoting City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204, 103 L.Ed.2d 412 (1989)). "[D]eliberate indifference' is a stringent standard of fault requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Brown, 520 U.S. at, 117 S.Ct. at 1391. In other words, the risk of a constitutional violation arising as a result of the inadequacies in the municipal policy must be "plainly obvious." Id. at, 117 S.Ct. at 1393.Stemler, 126 F.3d at 865.
In this action, "[t]he plaintiff's theory of recovery in this case is predicated on the existence of a custom or practice of the unlawful and unconstitutional use of excessive force by the Chattanooga Police Department." [Court File No. 28, Affidavit, p. 2]. The plaintiff's have identified the relevant policy at issue in this case, Chattanooga Police Department — Policy Manual, ADM-5-Use of Force. [Court File No. 33, Exhibit 2]. ADM-5 states in relevant part:
II. USE OF FORCE
A. Officers of the Chattanooga Police Department shall use only the minimum level of force necessary to conduct lawful public safety activities and accomplish the mission of the department. The level of force used by a police office in any given situation is dependent on the level of resistance presented by the person with whom the officer is dealing. An officer shall only use the minimal amount of physical force reasonably necessary to (1) protect persons and property and (2) overcome any physical resistance offered by a person with whom the officer is dealing. Under no circumstances shall the force used be greater than necessary to achieve lawful objectives. Deadly force shall not be used unless an officer reasonably believes it is necessary to protect the officer or another person from imminent danger of death or serious physical injury. [1.3.1, 1.3.2].
B. Officers are authorized to use only the minimal amount of force which is reasonably necessary to (1) protect themselves or others, (2) effect an arrest, or (3) maintain control of an arrested person. Officers must always use the minimum amount of force necessary to accomplish these objectives. Any officer who uses force against any person must be able to articulate the specific reason(s) for using the force and must be able to articulate specific reasons for employing the amount offeree used. [1.3.1] . . .
D. Use of Force Continuum
1. Whenever possible, police officers shall employ a progression of force commonly referred to as the "use of force continuum." The continuum is based on the concept of increasing the police officer's level of control in response to the level of resistance on the suspect or violator. If a suspect or violator increases his level of resistance or threat to the officer, the office is justified in increasing his level of control.
2. Due to the varying circumstances of different incidents, it is not always possible for an officer to start at the beginning of the use of force continuum and increase the level offeree through each level of control.
3. Officers may be required and may be fully justified in using force that falls at any point on the continuum based on the circumstances. Allowances must be made for the fact that officers are often forced to make split-second decisions about the amount of force that is necessary in a particular situation or circumstances that are tense, uncertain and rapidly evolving . . .
G. Firearms
2. Usage Criteria
a. The use of deadly force is authorized when an officer reasonably believes that its use is necessary in order to stop an imminent threat of serious bodily harm or death against the officer or another person. [1.3.2]
b. An Officer's decision to use deadly force will be judged only on what information and observations were known to the officer at the point when deadly force was used.
[Court File No. 33, ADM-5].
Nothing in these policies of the City of Chattanooga is facially unconstitutional. However, plaintiff's have submitted the Affidavit of their "expert" witness, Phillip L. Davidson. [Court File No. 33] Accompanying, the Davidson affidavit are 7 pages of citizen use of force complaints filed by citizens against various officers of the Chattanooga Police Department. [Court File No. 33, Exhibit 1, pp. 1-7].
As part of their response to the defendant's motion for a summary judgment, the plaintiff's submitted the videotaped deposition of Captain Janet Crumley, which was taken on August 20, 2003. [Court File No. 40, Supplemental File]. Captain Crumley was the Commander of the Internal Affairs Department on May 28, 2000. Id. At the time of her video deposition she had been employed by the Chattanooga Police Department for approximately 28 years.
In submitting the videotapes, the plaintiff's explained that a transcript of the deposition of Captain Crumely was being prepared but had not yet been completed. Prior to the preparation of this Memorandum, the Court listened to the three videotapes, which contain slightly more than 4 hours of testimony, in their entirety.
During the course of her videotaped deposition, at approximately 5:11 P.M. on August 20, 2003, Captain Crumley was shown the list of use of force injury complaints which is attached to the Davidson affidavit and she was extensively questioned about the list. She explained that the complaints on the list involved any use of force where an injury was alleged and that these complaints ran the gamut from a broken fingernail or a scratch to a shooting. Id. Plaintiff's counsel noted that there were about 33 complaints on the first page of the list, and for the sake of brevity, he asked Captain Crumley to assume that each of the pages of the list, except for the seventh page which covered about one-quarter of a page, contained approximately 30 complaints per page. Id. Captain Crumley reviewed the list and found approximately 11 out of 180 complaints where the officers use offeree had been found not to be justified based upon the policies of the Chattanooga Police Department. Captain Crumley further noted as a result of her review of the list that some of the complaints, particularly those on the sixth and seventh page of the list were too recent for the investigation of the complaint to have been completed or for the complaint to have been resolved. Id. Captain Crumley further noted that there were a number of different resolutions of the complaints on the list: a number had been made and then withdrawn; some had been found to be unfounded, and some had been found to be not sustained, which meant that there was some conflicting evidence but there was not enough evidence for a conclusion to be reached as to whether or not the use offeree was or was not justified. Id.
In his affidavit, Philip Davidson states:
Officer Abernathy's actions at the time and place in question do no comply with the City of Chattanooga's written procedures. It is my experience that insofar as use of force is concerned, written regulations are often honored in the breach rather than in the observance. Based upon my experience with other cities in cases similar to this one, the number of formal civil cases alleging use of excessive force by police officers filed against the City of Chattanooga, and more particularly the Chattanooga Police Department's internal records regarding use of excessive force complaints from citizens and the internal "resolution" of those complaints indicated that written regulations to the contrary notwithstanding, at the time and place in question Chattanooga Police Department uniformed officers acted within an informal, unwritten policy, practice, or custom wherein the unlawful use of force — the use of excessive force — was tolerated and officially condoned. In my experience, this "culture" must necessarily have been known to Chattanooga Police Department supervisory personnel and condoned by them. That the Chattanooga Police Department condoned unlawful use of force, such as that utilized by Officer Abernathy at the time in question, is aptly illustrated by the fact that Captain Janet Crumley, of Internal Affairs, recommended that Officer Abernathy's shooting of Mr. Thomas be ". . . carried as justified."
[Court File No. 33, Davidson Affidavit]. Mr. Davidson's affidavit refers to an affidavit submitted by counsel for the plaintiff. [Court File No. 28]. That affidavit states in pertinent part:
Research recently performed at my direction in the office of the Clerk of the United States District Court for the Eastern District of Tennessee, Southern Division (Chattanooga) revealed that [s]ince July of 1994, at which time the Clerk's records were computerized, revealed that in that period some 45 suits alleging use of excessive unlawful force by the Chattanooga Police Department were filed . . . Additional research performed at my direction reveals that at present, the City of Chattanooga employs 448 uniformed police officers, and that this number has varied little in recent years.Id.
Plaintiffs also assert that the report of Captain Janet Crumley of the Internal Affairs department of the Chattanooga Police Department shows that the Department had an unwritten policy of condoning excessive and unconstitutional force.
Captain Janet Crumley's Internal Affairs Report involving the shooting at issue in this case states in its entirety:
I have reviewed Sergeant Charles Russell's investigative report on a police involved shooting that occurred on May 28, 2002 at 4806 Hal Drive. According to the investigation, Officer Reginald Abernathy was dispatched to a disorder call at that address. He heard someone screaming inside the residence as he approached. Officer Abernathy entered the fenced yard area and looked through a side door window. He observed a white male and a white female inside the residence. The male was armed with a handgun in each hand. Officer Abernathy observed the male turn the weapons toward the female. He issued a verbal warning through the closed door. When the man did not respond and drop his guns, Officer Abernathy decided to fire his weapon to protect the woman. He fired through the door glass and struck the male later identified as Jon Eric Thomas who resided at the location. The female was identified as his wife, Heather Thomas. Mr. Thomas was transported to Erlanger Hospital where he was admitted.
Sergeant Russell responded to the scene of the shooting where he monitored the investigation of the Major Crimes Unit and the Crime Scene Unit. The inquiry included a review of all the records, reports, diagrams, photographs and witness statements relating to the incident. Sergeant Russell attempted to interview Heather Thomas but was unable to make contact with her. Ms. Thomas declined to be interviewed by Chattanooga Police Department officers throughout the investigation.
Sergeant Russell determined that Officer Abernathy fired his Department issued duty weapon and that he was using approved ammunition. He had qualified with the gun on April 2-3, 2002, and a projectile from his weapon is on file with the Department Range Master as required by policy.
ADM-5 — Use of Force, III, E, 2, a states "The use of deadly force is authorized when an officer reasonably believes that its use is necessary in order to stop an imminent threat of serious bodily harm or death against the officer or another person." The investigation shows that Officer Abernathy observed Jon Eric Thomas turn toward Ms. Thomas with a weapon in each hand. Abernathy fired after Thomas did not respond to his verbal warning.
Based on the investigation, it is my opinion that Officer Abernathy fired his weapon to protect Heather Thomas from what he reasonably believed to be an imminent threat of serious bodily harm or death at the hands of Mr. Thomas. His actions were in compliance with Department policy and I recommend this case be carried as justified.
[Court File No. 33, Exhibit 3](emphasis in original).
Mr. Davidson filed a supplemental affidavit on September 2, 2003, which states in pertinent part:
It is my considered opinion that, as articulated in my August 8, Affidavit, the fact that Captain Crumley determined that the shooting in question was "justified" is clear evidence that at the time this incident occurred, use of excessive force by uniformed police officers was condoned by senior officers of the Chattanooga Police Department. This shooting violatedboth the Use of Force requirements and the Use of Force Continuum . . .
Captain Crumley wholly ignored Officer Abernathy's firing sequence (i.e., did he evaluate before firing the first shot? Did he re-evaluate after firing the second, third, fourth, fifth, sixth and seventh shows without interruption?). This is completely at odds with the written policy guidelines . . . Although Officer Abernathy has admitted both under oath in his deposition and in his contemporaneous statement to Sgt. Mathis that he gave no warning before opening fire on Mr. Thomas, and that Mr. Thomas posed no threat to him, Captain Crumley's report concludes that he did warn before shooting . . . Her error is plain . . .
In summary, Captain Crumley's report does not address the fact that in his contemporaneous statement given to Sgt. Mathis, Officer Abernathy clearly conceded that he gave no warning. Captain Crumley's omission of critical evidence and her failure to determining what Officer Abernathy himself reported can lead only to the conclusion that her report was intended to be uninformative. In my opinion, no experienced police supervisor could reasonably have concluded that Officer Abernathy's actions at the time in question were in keeping with the Chattanooga Police Department's written policies and procedures concerning the use of force. In my opinion, Captain Crumley's report provides a clear insight into the Chattanooga Police Departments "customary" method of preparing excessive force reports, and forwarding inaccurate reports . . .
My conclusion is this respect is further supported by the statistical data [referred to in my Affidavit of August 8, 2003] concerning the number of excessive force complaints received by the Chattanooga Police Department and the internal police department "resolution" of those complaints, which Captain Crumley confirms . . . These statistics, provided in this case by the Chattanooga Police Department, show that in the past fifteen years the Chattanooga Police Department receives an excessive force complaint approximately every 12 days and deems such as [sic] complaint as being "justified" approximately every 10 months. The percentage of complaints deemed "justified" by the Chattanooga Police Departments is approximately 4.2. It is further my considered opinion that absent the Chattanooga Police Department's unwritten practice, custom or policy of condoning unlawful and unconstitutional use of excessive force, the shooting which is the subject of this litigation more likely than not wouldn't have occurred.
[Court File No. 38].
With regard to the "statistical" evidence allegedly set forth in the two affidavits of plaintiff's' "expert" witness, Phillip Davidson, the court notes that these statements are wholly conclusory statements of Mr. Davidson's opinion. At no point does Mr. Davidson set forth the basis or reasoning behind his opinion.
Further, Mr. Davidson refers to the list of use of force complaints filed with the Chattanooga Police Department and makes certain conclusory statements to the effect that this list shows that the Chattanooga Police Department has an unwritten policy of condoning the use of excessive and unconstitutional use of force by its officers. However, other than the statement that the Chattanooga Police Department receives an excessive force complaint approximately 12 days and, as a result of the Internal Affairs investigations into those complaints, concludes that an excessive force complaint is justified or "founded" approximately every 10 months, Mr. Davidson again provides no reasoning or basis for his conclusion that the Chattanooga Police Department has an unwritten policy of condoning excessive force.
First, if the Chattanooga Police Department finds a complaint of excessive force to be justified or well-founded approximately every 10 months, it obviously does not have a policy of denying all excessive force claims or sweeping them under the carpet. More importantly, Mr. Davidson simply bases his conclusory allegations upon the list of claims, the Court is not provided with any other information about the excessive force claims. For instance, Captain Crumley testified that the claims on the list of claims involved any claim of excessive force from a shooting to a broken fingernail or a scratch. However, Mr. Davidson has not informed the Court as to the number of excessive force claims on the list actually involve a shooting of the use of deadly/potentially deadly force as does this case. Further, Mr. Davidson provides no data upon which the Court could compare or contrast the number of excessive force complaints made by citizens in Chattanooga with the number of excessive force complaints in similarly sized cities or in cities with a similarly sized police force.
Thus, the "statistical evidence" referred to in Mr. Davidson's affidavit and supplemental affidavit does not show that official in the City of Chattanooga Police Department had a policy of condoning the use of excessive force. Here, plaintiff's have submitted no evidence showing that officials of the Chattanooga Police Department were confronted with such evidence of the use of excessive and/or deadly force by their patrol officers that "the need to act was so obvious that the `conscious' decision not to act was a "policy" of deliberate indifference to the plaintiff's' constitutional rights. Warren, 191 F. Supp.2d at 987.
Likewise, Mr. Davidson does not explain his reasoning for his opinion that no experienced police supervisor could reasonably have concluded that Officer Abernathy's actions at the time in question were in keeping with the Chattanooga Police Department's written policies and procedures concerning the use of force. Rather, he attacks certain deficiencies in Captain Crumley's Internal Affairs recommendation that the shooting by Officer Abernathy be carried as justified.
First, Mr. Davidson notes that in her case recommendation, Captain Crumley stated that Officer Abernathy "issued a verbal warning through the closed door" before he fired. Mr. Davidson notes that this recommendation ignores Officers Abernathy's statements that he gave no warning. [Court File No. 38].
Captain Crumley was extensively questioned about this issue during her August 20, 2003 deposition. During the deposition Captain Crumley stated in her role as Commander of Internal Affairs she performed no investigation of complaints, with one exception which does not apply to this case, and that she primarily relied on the Report of Sergeant Charles Russell when she prepared her recommendation, although she did acknowledge she had reviewed other documents. [Court File No. 40]. Captain Crumley's case recommendation does state: "I have reviewed Sergeant Charles Russell's investigative report on a police involved shooting that occurred on May 28, 2002 . . ." [Court File No. 33, Exhibit 3, p. 1]. Furthermore, during her deposition, Captain Crumley was asked to review Sergeant Russell's report and she did read from a portion of the report which concluded that Officer Abernathy did give a verbal warning through the door prior to the shooting.
When asked to explain the discrepancy, Captain Crumley stated she had discussed the matter with Sergeant Russell and believed it had been resolved at the time she wrote her report on or about February 2003, Further, she noted that Mrs. Thomas had never spoken to an investigator from Internal Affairs and at the time she prepared her case recommendation she did not have access to Officer Abernathy's affidavit. More importantly, Captain Crumley stated that even if she had been aware that Officer Abernathy had not given a verbal warning, that would not necessarily have changed her ultimate conclusion. Captain Crumley stated that in her opinion the primary issue was the issue of justification for the shooting and that the justification in this case came from the perceived threat to Heather Thomas. Thus, she stated that her conclusion that the shooting was justified was based primarily upon her conclusion that Officer Abernathy fired his weapon based upon what he perceived to be an imminent threat of serious bodily harm or death to Heather Thomas from the gun or guns that Eric Thomas was pointing at her. Captain Crumley's report concludes, that "[b]ased on the investigation, it is my opinion that Officer Abernathy fired his weapon to protect Heather Thomas from what he reasonably believed to be an imminent threat of serious bodily harm or death at the hands of Mr. Thomas. [Court File No. 33, Exhibit 3].
Further, Captain Crumley noted that while she reviewed a number of materials that she reviewed when she prepared her recommendation she did not have before her any of the depositions of the parties to this case and that Heather Thomas had refused to speak to an Internal Affairs investigator, for reasons which are unrelated to this action. Moreover, as to her own recommendation concerning Officer Abernathy's use of force, Captain Crumley was to required to apply the written policy of the Chattanooga Police Department which states that:, [a]n Officer's decision to use deadly force will be judged only on what information and observations were known to the officer at the point when deadly force was used. [Court File No. 33, ADM-5].
There is nothing in this aspect of the policy of the Chattanooga Police Department which is unconstitutional or bespeaks of "deliberate indifference." The Court would note that in Graham v. Connor, 490 U.S. 386, 296-97, 109 S.Ct. 1865, 1872, 104 L.Ed.2d443 (1989), the Supreme Court stated in judging the reasonableness of a police officers use offeree in the Fourth Amendment context that:
The "reasonableness" of a particular use offeree must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight . . . With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," Johnson v. Click, 481 F.2d at 1033, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.Id.
In his supplemental affidavit, Mr. Davidson is critical of Captain Crumley's reports. He further states that in his opinion, "no experienced police supervisor could reasonably have concluded that Officer Abernathy's actions were in keeping with the Chattanooga Police Department's written policies and procedures concerning the use of force." [Court File No. 38].
However, Mr. Davidson states neither the basis nor the reasoning behind his conclusory allegations. Most importantly, Mr. Davidson does not set forth the evidence upon which his conclusory opinion was based; namely, he does not state whether he based his conclusory opinion upon evidence that was unavailable to Captain Crumley at the time she authored her case recommendation, such as the depositions of the parties and/or a statement of the plaintiff's' version of the events from Heather Thomas, or whether his opinion is based upon the evidence that was available to Captain Crumley, such as Sergeant Russell's Investigative Report.
Moreover, with regard to Mr. Davidson's criticisms of the quality of Captain Crumley's recommendation, the Court notes that Captain Crumley's written recommendation was not based upon the same evidence that is currently before this Court; namely, she testified that she did not have the depositions of the parties and that, despite efforts to obtain a statement from her, Heather Thomas would not speak to an investigator from Internal Affairs. However, she testified that her Internal Affairs recommendation was prepared in the customary manner that she prepared other reports and Captain Crumley also testified that in issuing her case recommendation it was her usual practice to primarily rely on the investigation report by the internal affairs investigator assigned to the case.
Captain Crumley also testified that the Internal Affairs investigation in this instance was an administrative investigation; namely it was an automatic investigation that was triggered because Officer Abernathy used potentially deadly force. According to Captain Crumley's deposition testimony, this differs from the situation where the Internal Affairs investigation is triggered by a citizen complaint concerning the use of force, because in that situation the citizen must provide the police department with a written statement setting forth the details of their complaint before an investigation is commenced by Internal Affairs. Thus, in this situation when Captain Crumley authored her case recommendation, she had neither a written statement from the plaintiff's, nor had an investigator from the Internal Affairs Division of the Chattanooga Police Department been able to speak with Heather Thomas.
In his supplemental affidavit, Mr. Davidson also sets forth his opinion/conclusion that Captain Crumley is a policymaker for purposes of municipal liability under Monell, because she is/was a high ranking member of the Chattanooga Police Department, i.e., at the time she issued her case recommendation she was the commander of the internal affairs division of the Chattanooga Police Department. However, Captain Crumley testified that after she authored her case recommendation, the written case recommendation and certain other documents, including the report of the Internal Affairs investigator assigned to the case, the report of the major crimes division and certain other forms from the Chattanooga Police Department, were forwarded to Deputy Chief Charles Cook and Chief of Police James Dotson both of whom had to approve the recommendation — in Captain Crumley's words "sign off on" the recommendation — before it became final. [Court File No. 40]. In this situation, Captain Crumley testified that Chief Dotson approved/accepted the recommendation sometime in March 2003, and it became final at that time. Thus, it is not at all clear to the Court from the limited amount of evidence in the record on this issue that Captain Crumley was a policymaker for purposes of municipal liability under Monell.
The Court further notes that although Captain Crumley testified that in preparing her written case recommendation she relied on various documents, primarily the report of Internal Affairs investigator Sergeant Charles Russell as well as the report of the major crimes unit, which investigated the May 28, 2000 shooting. Neither of these reports appears in the record. However, when Captain Crumley was asked how she concluded that Officer Abernathy issued a verbal warning before the shooting, she stated that was based upon statements found in Sergeant Russell's report. She was then asked to review Sergeant Russell's report and did read from the report Sergeant Russell's statement that Officer Abernathy did issue a verbal warning before shooting. [Court File No. 40]. Thus, the Court has before it no evidence suggesting that Captain Crumley either selectively or incorrectly summarized the evidence in the reports upon which she based her case recommendation.
In this case, Officer Abernathy was dispatched to the plaintiff's home shortly before midnight on May 28, 2000, in response to a domestic disorder call. As he approached the home, he was met by a neighbor who pointed to the plaintiff's home and told him there was a domestic disorder at the home. As Officer Abernathy approached the house, he heard screaming from inside the home.
He approached the side door of the house, the kitchen door, because he saw a light coming through the window in the upper portion of the door onto the porch. As he looked through the door, Officer Abernathy saw a male and female. They were speaking to each other, but Officer Abernathy could not overhear the conversation through the door. Sitting on the counter top of the kitchen were two rifles and the male held a handgun in each hand.
At some point, Officer Abernathy observed the male turn toward the female with a gun in each hand; and, he lost sight of the gun in the man's left hand. He could not hear what was being said between the two, but Officer Abernathy perceived the woman's body language/expression as showing that she was in danger. [Court File No. 24, p. 105]. Believing that the woman was in imminent danger, Officer Abernathy opened fire on the man and kept firing until he perceived the danger from him had ceased.
Based upon the evidence available to Captain Crumley at the time she wrote her case recommendation and given the fact that the policy of the Chattanooga Police Department required Captain Crumley to assess the situation "only on what information and observations were known to the officer at the point when deadly force was used," [Court File No. 33, ADM-5, Subsection G.2.b], Captain Crumley's recommendation with regard to the May 28, 2000 shooting does not fall so far out of the realm of reason as to suggest that the Chattanooga Police Department was "deliberately indifferent" to the plaintiff's' rights in that it had an unwritten custom or policy of condoning the excessive use offeree by its officers.
In making this statement, the Court does not mean in any way to suggest that it views Captain Crumley's recommendation as unreasonable in any way.
Where, as here, the plaintiff's' allege a custom or policy based upon the failure of the City of Chattanooga Police Department to take any disciplinary action against Officer Abernathy as the result of the May 28, 2002 shooting,
[t]he evidence must show that the need to act [wa] s so obvious that the . . . "conscious decision" not to act can be said to amount to a "policy" of deliberate indifference to [the plaintiff's'] constitutional rights. City of Canton, 489 U.S. at 389, 109 S.Ct. at 1205. "Deliberate indifference" in this context does not mean a collection of sloppy, or even reckless oversights; it means evidence showing an obvious deliberate indifference to [the alleged constitutional violation].Doey. Claiborne County, Tenn. By and Through Claiborne County Bd. of Education, 103 F.3d 495, 509 (6th Cir. 1996).
Here, neither Captain Crumley's written recommendation, nor the conculsory opinions and "statistical" analysis set forth in the Affidavit and Supplement Affidavit of plaintiff's' Rule 26 expert witness, Phillip L. Davidson, even when viewed in the light most favorable to the plaintiff's, are sufficient to establish a genuine issue of material fact of "deliberate indifference" on the part of the City of Chattanooga or its Police Department which would constitute an unwritten custom or police which encourages or condones the use of excessive force of the part of officers of the Chattanooga Police Department. Accordingly, the motion of defendant, the City of Chattanooga, for a summary judgment [Court File No. 24] will be GRANTED.
IV. Defendant's Motion to Disqualify Phillip L. Davidson as an expert witness [Court File No. 36].
Also pending before the Court is the motion of defendant, the City of Chattanooga, Tennessee, to disqualify Phillip L. Davidson as an expert witness on the ground that his proposed/proffered testimony fails to satisfy the requirements for expert witness testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). [Court File No. 36]. In the alternative, defendant, the City of Chattanooga, seeks to exclude the Fed.R.Civ.P. 26 disclosures of its expert witness, Phillip L. Davidson, on the ground that plaintiff's did not disclose Phillip L. Davidson nor provide any Rule 25 disclosures from him to the City of Chattanooga until June 16, 2003, and made supplemental disclosures on July 29, 2003 and August 8, 2003, well beyond the deadline for the plaintiff's' Rule 26 expert testimony set forth in this Court's Scheduling Order of November 29, 2002 [Court File No. 7], which was April 11, 2003. [Court File No. 37].
In view of this Court's finding, set forth in detail above, that the City of Chattanooga is entitled to a summary judgment on plaintiff's claims against it, the City of Chattanooga's Daubert motion to disqualify the plaintiff's' expert witness, Phillip L. Davidson, [Court File No. 36] has been rendered moot.
A separate order will enter.
ORDER
In accordance with the accompanying memorandum, opinion defendant's motion for a summaryjudgment [Court File No. 24] is GRANTED. The plaintiff's claims are DISMISSED WITH PREJUDICE. The defendant is entitled to JUDGMENT in its favor. Costs are awarded to the defendant. The Clerk shall close the file.SO ORDERED.